Asserting your Sixth Amendment Rights Under COVID-19 Restrictions


I’ve discussed in previous blogs some portions of your rights that are guaranteed under the Sixth Amendment, and there’s more to unpack as we attempt to maintain our rights in court while living under the changing COVID-19 restrictions.

What’s at risk here?

One of the most fundamental rights guaranteed by the Sixth Amendment, a right whose violation can drastically affect the outcome of your criminal case, is the right to confront and cross-examine your accuser and witnesses who are testifying against you. Appearing in person and being able to look witnesses in the eye is a basic right with foundations dating back to the very origins of our legal system in Rome and England, so I don’t speak lightly when I stress the importance of maintaining this right as you navigate the criminal courts.

Why is the Confrontation Clause important to me?

In the United States, you are guaranteed the right to confront, face eye-to-eye, and engage with your accuser or anyone offering testimony against you in an attempt to test their credibility. This understandably becomes an issue in the age of COVID-19 restrictions that affect travel, capacity restrictions, and whether witnesses are willing to appear in public places.

We look to a Texas case in the Court of Criminal Appeals to demonstrate the importance of asserting your full Sixth Amendment rights. Though recent, the decision in discussion and the rationale behind it occurred prior to the COVID-19 restrictions.

A high-level review of this case, in which a nurse practitioner conducted an exam that resulted in physical evidence and testimony against a defendant, is demonstrative of how the right to confront your accuser in person can completely shift the direction and outcome of your case.

As a result of the physical evidence and nurse practitioner’s testimony, the State needed to introduce evidence and the account; however, the nurse practitioner had recently moved out of state and was unwilling to return to Texas to testify in person. Despite this witness’s unwillingness to return to testify in person, the judge hearing this case astonishingly allowed this witness to appear via video and deemed the collected physical evidence permissible. As a result, the Defendant was convicted but was able to fight the conviction in the Court of Criminal Appeals.

This brief account is not simply anecdotal—it provides three very important factors that were key to the decision made, key factors that are takeaways you can apply moving forward in the courts in the age of COVID-19:

Subpoena! Subpoena! Subpoena!

Our first takeaway from this case to note is how perturbed the Court of Criminal Appeals was by the attorney who did not subpoena the witness in question. If you are facing criminal charges, make certain that your attorney subpoenas all of your witnesses. Doing so introduces the threat of contempt and subsequent punishment to any witness unwilling to appear, and it helps ensure the right to confront a witness.

What gives?

Never hesitate to challenge or question the reasons a witness gives for resisting their appearance in court. Your confrontation clause rights allow you to demand a witness appear, despite any fears of COVID-19—it’s perfectly acceptable to remind that judge that the courtroom being safe enough for some means it is safe enough for witnesses to appear. Feel free in your rights to ask what safety procedures are in place if the courts adopted face mask requirements, and whether or not they are respecting the six-feet minimum distance guidance to assert your right to have witnesses appear in person.

Demand swift justice

Another important aspect of this to remember is that you must continually assert your right to a speedy trial. Despite executive orders, gubernatorial decrees, and country restrictions due to the pandemic, you still have every right to a speedy trial and to not linger in limbo waiting months on end for your time in court. You must let your attorney know that you assert your rights to a speedy trial and refuse to agree to anything that attempts to deny your right to speedily complete your case.

Your Sixth Amendment rights covered here are so fundamental to your receiving a fair trial during the pandemic, which is all the more reason for you to have an experienced attorney who knows how to assert those rights and apply facts and arguments that will help support you.

If you have any questions about your rights or need a trusted advocate for your defense, we’d love to help you take control of your criminal proceedings and ensure that every right afforded to you is met in abundance.

Please tune into our updates every Friday and follow us on social media for up-to-date information concerning your rights and how we can fight on your behalf.

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