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The Clerk will read the amendment.
READING CLERK: Amendment No. 11
to Committee Recommendation R&P-1 by
Delegates Adkins and Scanlan:
One page 3 section 5, Rights of Accused,
in line 7 after the words "confronted with"
add the words "and to examine under oath
or affirmation".
THE CHAIRMAN: Delegate Adkins, the
Chair indicated to Delegate Adkins some
doubt as to whether the amendment would
carry out what the Chair supposes is his
purpose. Is it your purpose to provide that
an accused should have the right to examine
witnesses against him prior to trial?
DELEGATE ADKINS: Both prior to trial
and during trial, if the evidence taken prior
to trial is intended to be used during the
trial.
THE CHAIRMAN: The Chair would sug-
gest to you that the amendment you pro-
pose would not accomplish that. You would
have to add a clause, perhaps prior to the
clause beginning in line 7, providing for
pretrial examination, and then something
similar to the clause you have for examina-
tion during trial.
DELEGATE ADKINS: I must admit I
am at a loss to see the point the Chair is
making, but I am sure it is valid, so I will
withdraw the amendment until I can recon-
sider it.
THE CHAIRMAN: Not necessarily. The
Chair's interpretation was that the clause
as amended would read, "to be confronted
with and to examine under oath or affirma-
tion the witnesses against him". Since the
confrontation clause has always been con-
strued to mean in trial, I suggest to you
that the examination under oath would
likewise be limited to examination in trial.
DELEGATE ADKINS: Without intend-
ing a lengthy debate, would it not follow
from this clause that if the pre-trial deposi-
tion were offered at the trial, it would not
be admissible unless at the time it were
taken the witness had been subject to cross-
examination?
THE CHAIRMAN: I think that is true
without the amendment: The confrontation
clause protects.
DELEGATE ADKINS: If it does, perhaps
the amendment is not necessary. My thought
is the language, confrontation, does not
guarantee the right of cross-examination.
THE CHAIRMAN: The Chair certainly
does not want to speak with authority on it,
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but I always understood that the confronta-
tion clause meant that you be confronted
with the witnesses in the course of trial
and that due process required that you have
opportunity to cross-examine.
DELEGATE ADKINS: If the Chair can
speak authoritatively on that case, I will
not press the amendment. I know of no
case, and the Committee Report suggests
no report. Discussion with the General As-
sembly revealed that they know of no defini-
tive meaning of confrontation which in-
cludes as a matter of absolute constitutional
right the matter of cross-examination.
THE CHAIRMAN: May I make this sug-
gestion that the amendment be passed over,
and that Mr. Smith on the Committee staff
be requested to research that overnight and
the answer may or may not be in order. I
do not know.
DELEGATE ADKINS: I am perfectly
willing to accept that. May I say, Mr. Chair-
man, even though it may be implicit in the
word confrontation, this matter was dis-
cussed at some length at the Commission
level. The language used in this amend-
ment is identical to that inserted in the
Commission draft. The Committee Report
states that the word confrontation implies
the right of cross-examination, but they
cite no authority. Indeed, I think there is no
authority necessarily to imply that the
word confronted could not be by judicial
interpretation watered down to mean simply
what the word confronted usually means,
and that is giving of the testimony affirma-
tively in the presence of the party without
necessarily right to cross-examination.
T.HE CPI AIRMAN: Perhaps the Chair
has misunderstood your purpose. I think
the amendment that you offer would un-
doubtedly accomplish your purpose if you
are not intending to obtain by it the right
of pre-trial examination of adverse wit-
nesses.
DELEGATE ADKINS: That was certain-
ly not my initial intention.
THE CHAIRMAN: The Chair misunder-
stood your purpose. I think the amendment
is perfectly proper.
For what purpose does Delegate Scanlan
rise ?
DELEGATE SCANLAN: As co-sponsor
of the amendment, I offered a case in the
Maryland Court of Appeals which makes it
perfectly clear that the right of confronta-
tion does not necessarily include the right
to cross-examination, Fry e v. The Mont-
gomery County Board of Appeals. That
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