Face-to-Face Confrontation in Florida Trials: When Is It Required Under the Sixth Amendment?

June 20, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In Florida criminal trials, cross-examination (confrontation) of a witness against a defendant is a critical part of ensuring someone receives due process. While confrontation typically occurs in person, however, this is not an absolute requirement.

This article will discuss the Sixth Amendment’s Confrontation Clause, how it applies in Florida, and the circumstances under which face-to-face cross-examination is not required.

Under the Sixth Amendment to the U.S. Constitution, a defendant has a right at criminal trials to confront the accusers against him. In practical terms, this means a defendant has a constitutional right to cross-examine any witness making an allegation of criminal wrongdoing against him (or any other witness called by the prosecution) at trial.

Traditionally, cross-examination (confrontation) of a witness occurs in a real-world setting – not over Zoom or behind a screen. Unless a nontestimonial hearsay statement against a defendant at trial is admitted pursuant to a designated hearsay exception, state witnesses must testify and face cross-examination. Crawford v. Washington, 541 U.S. 36 (2004) A hearsay statement is an out of court statement offered in court to prove the truth of the matter asserted in the statement.

Cross-examination has often been called “the greatest legal engine for the discovery of truth.” California v. Green, 399 U.S. 149 (1970). It allows the defendant to ask questions of a witness that can prove critical in obtaining a “not guilty” verdict – drawing attention to weaknesses in the State’s case.

Traditionally, cross-examination of a witness against a defendant is done in person, face-to-face, at a criminal trial. Crawford observed that British common law provided that confrontation occur in such a format. However, America’s courts – including the U.S. Supreme Court – have carved out exceptions to this rule.

A seminal case in this area is Maryland v. Craig. Maryland v. Craig, 497 U.S. 836 (1990). There, Sandra Craig was charged with sexual abuse of a six-year-old child. Maryland’s child-protection statute allowed the child to testify via one-way closed circuit television. Craig could see and hear the child, but the child could not see Craig.

Craig argued this set-up violated her Sixth Amendment right to confrontation. The Court ruled against her, reasoning that the right to face-to-face confrontation is not absolute. The decision allows for non-face-to-face confrontation when two conditions are met:

• Denial of face-to-face confrontation is necessary to further an important public policy, and
• The testimony’s reliability is otherwise assured (under oath, subject to cross-examination, and it is observed by the judge and jury)

Florida has codified the Craig child abuse victim exception to the face-to-face confrontation requirement in Fla. Stat. 92.54. This allows for the use of closed-circuit television and audio-video communication technology during testimony and cross-examination if the following are true:

• The witness is under the age of 18 or has an intellectual disability
• There is at least a substantial likelihood of moderate emotional or mental harm to the witness if they testify in the defendant’s presence

Note: The court must make a specific finding that 92.54 is satisfied before the trial if this exception is to be made.

Moreover, face-to-face confrontation is not required at trial if the witness is unavailable to testify at trial and a defendant had the prior opportunity to cross-examine the declarant (speaker of the statement) as to the content of their testimonial statements.

Unavailability may arise from:

• Death or memory loss
• Inability to be found despite due diligence by the court
• In child hearsay cases, a substantial likelihood of severe emotional or mental harm if the declarant testifies at trial

The opportunity for cross-examination is required for testimonial hearsay statements to be admitted at trial, but not nontestimonial statements. Testimonial hearsay (out of court) statements are those made with the primary purpose of assisting a government investigation or future prosecution. 

By contrast, nontestimonial hearsay statements are made with the primary purpose of responding to an ongoing emergency. Nontestimonial hearsay statements (such as 911 calls made during an ongoing emergency, casual remarks to friends and family, and excited utterances) do not require cross-examination before they are admitted – so long as this is under a valid hearsay exception.

Moreover, a defendant can waive their right to in-court confrontation by:

• Consenting to remote testimony
• Failing to object at trial to a non-face-to-face format of proposed witness testimony 
• Intentionally causing the witness’s unavailability (such as through threats, according to Giles v. California, 554 U.S. 353 (2008))

In addition to the U.S. Supreme Court, Florida’s courts have also held that in-person, face-to-face confrontation may sometimes not occur. Though there is typically the right to confront a witness against a defendant in a typical format, Florida’s case law accords with Craig and Fla. Stat. 92.54 in occasionally allowing nontraditional confrontation (such as over CCTV). J.T.B. v. State, 345 So.3d 927 (Fla 3d. DCA 2022); Figueroa v. State, 388 So.3d 132 (Fla. 3d. DCA 2023) 

However, Florida’s courts are clear about two things:

• The opportunity to cross-examine the witness must still be afforded to the defendant
• If confrontation occurs in a non-traditional format, the court must make specific findings of fact to record the basis for its ruling 

In sum, the Sixth Amendment affords defendants in criminal cases the right to confront any witnesses called against them. This is done via cross-examination, and typically entails in person, face-to-face confrontation of the witness at trial.

Under rare circumstances (a child victim who may suffer moderate or severe emotional harm if made to testify in person), a court can order the child’s trial testimony and cross-examination to be conducted by closed circuit television (CCTV) or a similar method. This is permitted under the U.S. Supreme Court’s Craig ruling and Fla. Stat. 92.54.

In Crawford, the U.S. Supreme Court made clear that nontestimonial hearsay is admissible if it falls within a hearsay exception – and its introduction does not require confrontation of the declarant. However, the defendant has the right to cross-examine (confront) any witness who makes a testimonial hearsay statement the State intends to use at trial – or any other witness the State calls.

The admission of child hearsay or other out of court testimony can change the outcome of a case, so it is critical to find experienced and trusted legal representation as soon as possible if someone is charged with an offense involving a child victim. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

  Social Share