ABSTRACT
The United States (US) Sixth Amendment expressing, as it does, the right to confrontation, sets the international high water mark for the requirement that witnesses be present in court for cross-examination. It does so under US law through the notoriously limited exceptions granted to the rule against hearsay. Long before modern human rights jurisprudence developed, the common law tradition entrenched the importance of testing of witnesses’ account by so-called ‘confrontation,’ placing great store on the deft flair and skills of cross-examiners operating sometimes with crushing effect and typically on a calibrated and exacting game plan. Wigmore’s particularly well-known aphorism that cross-examination is ‘the greatest legal engine ever invented for the discovery of truth’ (Wigmore 1940, p. 29) retains a strong footprint in common lawyers’ cultural appreciation of the art of the cross-examiner. Additionally, as Judge Yudkivska in Y v Slovenia (2015) observed:
The . . . crux [of the right to confrontation] lies in a belief that ‘[i]t is always more difficult to tell a lie about a person “to his face” than “behind his back”, and even if the lie is told it will often be told less convincingly’. This was explained by Justice Antonin Scalia in the US Supreme Court’s landmark judgment in this respect, Coy v Iowa (1988). In that judgment Justice Scalia traced the history of the right to confront as a ‘face-to-face encounter’, illustrated in Shakespeare’s Richard II. . . . He concluded that ‘there is something deep in human nature that regards face-to-face confrontation between accused and accuser as “essential to a fair trial in a criminal prosecution”’.
