Nowadays you cannot listen to news reports for long, or watch social media before you hear people talking, yelling, or claiming they are being denied their Constitutional rights. In some instances, if you listen closely, you can tell that the person speaking is repeating a storyline. There seems to be no real understanding of the Constitution. Then you have the arguments that the Constitution must be interpreted according to what the Founding Fathers intended when they wrote it (Originalism[1]), or the position that the Constitution must be interpreted considering the changes in society (living Constitutionalism), or Textualism, which looks to the meaning of the words and how the words would be understood by a reasonable person.[2]
In this Blog we are going to contain our broad minds with one easy aspect of the Sixth Amendment. But first, let us read the full text of the Federal and State Constitution. (Yes! We have a Mississippi Constitution and savvy criminal defense lawyers use it together with the Federal Constitution. I can tell you from experience most attorneys do not use or cite the Mississippi Constitution).
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. U.S. Constitution.
In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed; and he shall not be compelled to give evidence against himself; but in prosecutions for rape, adultery, fornication, sodomy or crime against nature the court may, in its discretion, exclude from the courtroom all persons except such as are necessary in the conduct of the trial. Notwithstanding any other provisions of this Constitution, the Legislature may enact laws establishing a state grand jury with the authority to return indictments regardless of the county where the crime was committed. The subject matter jurisdiction of a state grand jury is limited to criminal violations of the Mississippi Uniform Controlled Substances Law or any other crime involving narcotics, dangerous drugs or controlled substances, or any crime arising out of or in connection with a violation of the Mississippi Uniform Controlled Substances Law or a crime involving narcotics, dangerous drugs or controlled substances if the crime occurs within more than one (1) circuit court district of the state or transpires or has significance in more than one (1) circuit court district of the state. The venue for the trial of indictments returned by a state grand jury shall be as prescribed by general law. Mississippi Constitution, Article 3, Section 26.
You can see the Mississippi Constitution has been amended. This took place in 1994. Otherwise, the language requiring the right to confront a witness is the same as when the Miss. Constitution was first enacted.
What does confront mean? Does confront denote a Middle Ages battle where people meet with swords and axes? Does confront mean internet confront, where mouse/keyboard warriors confront (verbally attack) others in ways they would never do face to face. The word seems simple and readily understandable, but it has generated significant litigation. Much of this litigation appears to be to arise from the Governments’ efforts to simplify criminal prosecutions, and I do not think the Founding Fathers intended simplifying prosecutions. They had already experienced the heavy hand of the Crown and unfair prosecutions. They intended to place significant burdens on the Government before it could send its citizens to prison.
The best way to illustrate this point is to provide a real case. Wesley Littleton v. State of Mississippi, No. 2023-00239-COA, (Decided 07/16/2024). We were not the attorneys during the trial but were hired to represent Mr. Littleton on appeal. Let me tell you the story of this case. Wesley lived in central MS. One day his friend, Thomas, came over after Wesley got off work. They were spending time together and having a few beers. After a while, Thomas’s son’s young son was dropped off. They went inside and drank more. Eventually an argument started when Thomas contradicted Wesley. Thomas became violent so Wesley stood up and told him to take his son and leave. While they were in the house, both Wesley and Thomas had pistols.[3] Wesley had a 45 caliber Ruger pistol. Thomas had a 9 mm Ruger pistol.
Within seconds of leading Thomas out of the house, Thomas ran back into Wesley’s house and raised the 9 mm Ruger and pointed it at Wesley. Wesley had moved back into his kitchen right before Thomas entered. When Thomas pointed the pistol, Wesley believed he was going to be shot so he fired multiple times. Thomas was hit and collapsed on the threshold. Wesley ran over and said, “I sorry, I did not mean to shoot you.” He then ran next door, told a neighbor to call for help and he panicked and fled.
Fast forward months later and Wesley is on trial charged with premediated murder. His counsel is raising self-defense. The only witnesses to the shooting were Wesley and Thomas’s young son. The Prosecution filed a Motion to Admit the Statement of Thomas’s son. Wesley’s trial attorney objected as a violation of Crawford v. Washington, 541 U.S. 36 (2004).[4] The trial court took the child into chambers without the defense counsel or prosecutor present. (This should not have taken place in my legal opinion). Thereafter the trial court announced the child was a competent witness and could testify. Nevertheless, the prosecution introduced over defense counsel’s objection the recorded statement of the child.
The prosecution and trial court suggested that defense counsel call the child as a witness. Most people know that the accused in a criminal case does not have to prove anything. In self-defense cases, the prosecution must prove the accused did not act in self-defense. There are instances where an accused must put on evidence to establish an affirmative defense, but the prosecution cannot put an improper audio recording into evidence and then tell the defense to call the witness and exercise the right of cross-examination. It was so firmly established that the prosecution could not play the audio statement to the jury. The prosecution had to call the child as a witness. If you want to know the definition of classic, this was a classic example of a violation of the right to confront and cross-examine.
Before I conclude, there was another interesting issue in the case. During the trial, a law enforcement officer testified that he recovered a 9 mm Ruger pistol in the house under a sofa. The prosecution was claiming Wesley owned both. Wesley testified he owned the 45 Ruger and Thomas brought the 9 mm Ruger. The officer also found a gun box in the house. Rather than seizing the gun box, he took photos of the inside and outside of the box, which had two magazines in the box. The office testified at trial that the box was for a 9 mm Ruger. This of course was intended to prove that Wesley owned both guns and Thomas did not bring a gun. Mr. Wesley’s trial counsel did not see this issue coming when she was preparing for trial. Once we were asked to file the appeal, we obtained the trial record. One of the first things that engaged our curiosity was the gun box. The picture on the side of the box was not clear. We wondered why the label on the side of the box was not clear. We immediately sent a picture of the gun box and magazines to a reputable gun shop. They responded back in less than ten minutes that the box and magazines were for a Ruger 45, not a Ruger 9 mm. I asked if we could get additional substantiation, and with 30 minutes a representative from Ruger. The Ruger representative stated in writing that the gun box and magazines were without any doubt for a Ruger 45 caliber, not a 9 mm Ruger. This is invaluable testimony that needed to be available for Wesley’s defense.
We appealed this case and when we went to the oral argument it was held at Alcorn University.[5] The Appellate Court Judges made this an interesting argument. I thought one Judge wanted to apply a harmless error analysis to the case.[6] I had to forcefully impress upon the Judges the gravity of the Constitutional issue and the other errors which denied Wesley a fair trial. I was about as confident as I could be that the case would be reversed for a new trial. Fortunately, I was not wrong on this case. The Court of Appeals reversed the conviction and remanded the case for a new trial.
Issues like this happen all the time. If you or a loved one are charged with a criminal offense, your best solution is a law firm who knows how to investigate a criminal case. A law firm who can prepare an adequate defense, handle the trial, and a law firm that knows how to handle an appeal. At Coxwell & Mullins we have something I like to call genuine experience. What I mean is we have been in big and small trials. What we put on our website is backed up by actual cases not hyperbolic language. When you or a loved one needs help, call us at 601-948-1600, or email us at merridac@coxwelllaw.com or chuckm@coxwelllaw.com.
[1] There are two different understandings of Originalism, but let’s not get too bogged down.
[2] Pacific Legal Foundation. What is the difference between originalism vs. textualism vs. living constitutionalism. https://pacificlegal.org/originalism-vs-textualism-vs-living-constitutionalism/
[3] The State claimed Wesley was the owner of both pistols. We will say more about this point later.
[4] Crawford was a landmark case. It abolished previous cases and firmly held that the admission testimonial statements are only permitted when a witness is unavailable, and the accused has had a prior occasion to cross-examine the witness. What’s is a testimonial statement? That is another Blog on another day.
[5] The Mississippi Court of Appeals travels the State and holds the arguments by counsel in other counties so the public can witness how the Appellate Court System and legal system operates. If you ever get the opportunity to go, I encourage you not to miss an argument.
[6] A harmless error analysis is a legal doctrine that Appellate Courts will apply to legal errors. The Court admits an error was made. It can even be a serious error, but the Appellate Court declares if the error had not occurred, the result would have been the same.