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Policy Letter

Amicus Brief: There's No Shortcut in the Sixth Amendment

The right to confront witnesses in a criminal trial is one of the oldest and most sacred rights in our system of justice. Prosecutors should not be able to circumvent that right for convenience or tactical advantage. But in Smith v. United States, the U.S. government did just that. The Constitution Project at POGO recently filed this amicus brief urging the Supreme Court to right that wrong.  

In December 2016, petitioners Renado Smith and Richard Delancy were charged with alien smuggling. The government deposed its key witness before trial, but it then released her from custody, lost track of her before trial, failed to issue a subpoena or seek her out until the eve of trial—and didn’t even take the basic step of entering her name into a law enforcement database to try to locate her. The government then waited until the day before her scheduled testimony to inform the accused that she was “unavailable” for trial. The judge then allowed the deposition to be used as evidence, eviscerating the defendants’ right to confront a witness against them.     

Given the centuries-long history of abuse and misuse of pretrial examination of witnesses in England, the founders enshrined the right to confront witnesses in the Sixth Amendment of the Constitution to better ensure a fair trial and effectuate the search for truth. Our brief argues that the Supreme Court should grant review of this case to ensure that the government is not permitted to circumvent the requirements of the Sixth Amendment by asserting a witness is “unavailable” for trial without a good faith and timely effort to locate the witness.    

We are grateful to the assistance of Wiley Rein LLP for their pro bono assistance in the creation and filing of The Constitution Project’s brief. The brief of petitioners Renado Smith and Richard Delancy for certiorari is available here.