Kentucky v. Stincer
Decided on June 19, 1987; 482 US 730


A. Issues Discussed: Due Process, Confrontation Clause

B. Legal Question Presented:

Does the exclusion of a defendant from a hearing held to determine the competency of witnesses to testify violate the defendant's rights under the Confrontation Clause of the Sixth Amendment or the Due Process Clause of the Fourteenth Amendment?

A. Background:

"Respondent Sergio Stincer was indicted in the Circuit Court of Christian County, Ky., and charged with committing first-degree sodomy with T. G., an 8-year-old girl, N. G., a 7-year-old girl, and B. H., a 5-year-old boy... After a jury was sworn, but before the presentation of evidence, the court conducted an in-chambers hearing to determine if the two young girls were competent to testify. Over his objection, respondent, but not his counsel (a public defender), was excluded from this hearing.

The two children were examined separately and the judge, the prosecutor, and respondent's counsel asked questions of each girl to determine if she were capable of remembering basic facts and of distinguishing between telling the truth and telling a lie. T. G., the 8-year-old, was asked her age, her date of birth, the name of her school, the names of her teachers, and the name of her Sunday school. She was also asked whether she knew what it meant to tell the truth, and whether she could keep a promise to God to tell the truth. N. G., the 7-year-old girl, was asked similar questions. The two children were not asked about the substance of the testimony they were to give at trial. The court ruled that the girls were competent to testify. Respondent's counsel did not object to these rulings.

Before each of the girls began her substantive testimony in open court, the prosecutor repeated some of the basic questions regarding the girl's background that had been asked at the competency hearing. T. G. then testified, on direct examination, that respondent had placed a sock over her eyes, had given her chocolate pudding to eat, and then had 'put his d-i-c-k' in her mouth. N. G., on direct examination, testified to a similar incident.

On cross-examination, respondent's counsel asked each girl questions designed to determine if she could remember past events and if she knew the difference between the truth and a lie. Some of these questions were similar to those that had been asked at the competency hearing. After the testimony of the girls was concluded, counsel did not request that the trial court reconsider its ruling that the girls were competent to testify. The jury convicted respondent of first-degree sodomy for engaging in deviate sexual intercourse and fixed his sentence at 20 years' imprisonment.

On appeal to the Supreme Court of Kentucky, respondent argued, among other things, that his exclusion from the competency hearing of the two girls denied him due process and violated his Sixth Amendment right to confront the witnesses against him. The Kentucky Supreme Court, by a divided vote, agreed that, under the Sixth Amendment of the Federal Constitution and under 11 of the Bill of Rights of the Kentucky Constitution (the right 'to meet the witnesses face to face'), respondent had an absolute right to be present at the competency hearing because the hearing 'was a crucial phase of the trial.'..."

On certiorari the US Supreme Court reversed the judgment of the Kentucky Supreme Court.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Brief of amici curiae urging affirmance were filed by the American Civil Liberties Union by George Kannar; and for the National Association of Criminal Defense Lawyers by Nancy Hollander.

Mark A. Posnansky, by appointment of the Court, argued the cause and filed a brief for respondent.

Briefs of amici curiae urging reversal were filed for the State of Arkansas et al. by Steve Clark, Attorney General of Arkansas, and Rodney A. Smolla, joined by the Attorneys General for their respective jurisdictions as follows: Don Siegelman of Alabama, Charles M. Oberly III of Delaware, Robert A. Butterworth of Florida, Charles Troutman of Guam, Jim Jones of Idaho, Linley E. Pearson of Indiana, Neil F. Hartigan of Illinois, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Edwin L. Pittman [482 U.S. 730, 732] of Mississippi, William L. Webster of Missouri, Mike Greely of Montana, Brian McKay of Nevada, Stephen E. Merrill of New Hampshire, W. Cary Edwards of New Jersey, Hal Stratton of New Mexico, Lacy H. Thornburg of North Carolina, Nicholas Spaeth of North Dakota, Dave Frohnmayer of Oregon, LeRoy S. Zimmerman of Pennsylvania, James E. O'Neil of Rhode Island, T. Travis Medlock of South Carolina, Roger A. Tellinghuisen of South Dakota, W. J. Michael Cody of Tennessee, Jeffrey Amestoy of Vermont, J'Ada Finch-Sheen of the Virgin Islands, Charles G. Brown of West Virginia, and Donald J. Hanaway of Wisconsin; and for the Appellate Committee of the California District Attorneys Association by Ira Reiner and Harry B. Sondheim.

Penny R. Warren, Assistant Attorney General of Kentucky, argued the cause for petitioner. With her on the briefs were David L. Armstrong, Attorney General, and John S. Gillig, Assistant Attorney General.


"The Commonwealth argues that respondent's exclusion from the competency hearing of the two children did not violate the Confrontation Clause because a competency hearing is not 'a stage of trial where evidence or witnesses are being presented to the trier of fact.'...

Instead of attempting to characterize a competency hearing as a trial or pretrial proceeding, it is more useful to consider whether excluding the defendant from the hearing interferes with his opportunity for effective cross-examination. No such interference occurred when respondent was excluded from the competency hearing of the two young girls in this case. After the trial court determined that the two children were competent to testify, they appeared and testified in open court. At that point, the two witnesses were subject to full and complete cross-examination, and were so examined. Respondent was present throughout this cross-examination and was available to assist his counsel as necessary. There was no Kentucky rule of law, nor any ruling by the trial court, that restricted respondent's ability to cross-examine the witnesses at trial. Any questions asked during the competency hearing, which respondent's counsel attended and in which he participated, could have been repeated during direct examination and cross-examination of the witnesses in respondent's presence.

...Because respondent had the opportunity for full and effective cross-examination of the two witnesses during trial, and because of the nature of the competency hearing at issue in this case, we conclude that respondent's rights under the Confrontation Clause were not violated by his exclusion from the competency hearing of the two girls.

Respondent argues that his rights under the Due Process Clause of the Fourteenth Amendment were violated by his exclusion from the competency hearing. The Court has assumed that, even in situations where the defendant is not actually confronting witnesses or evidence against him, he has a due process right 'to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.' Although the Court has emphasized that this privilege of presence is not guaranteed 'when presence would be useless, or the benefit but a shadow,' due process clearly requires that a defendant be allowed to be present 'to the extent that a fair and just hearing would be thwarted by his absence,'. Thus, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.

We conclude that respondent's due process rights were not violated by his exclusion from the competency hearing in this case. We emphasize, again, the particular nature of the competency hearing. No question regarding the substantive testimony that the two girls would have given during trial was asked at that hearing. All the questions, instead, were directed solely to each child's ability to recollect and narrate facts, to her ability to distinguish between truth and false-hood, and to her sense of moral obligation to tell the truth. Thus, although a competency hearing in which a witness is asked to discuss upcoming substantive testimony might bear a substantial relationship to a defendant's opportunity better to defend himself at trial, that kind of inquiry is not before us in this case.

Respondent has given no indication that his presence at the competency hearing in this case would have been useful in ensuring a more reliable determination as to whether the witnesses were competent to testify. He has presented no evidence that his relationship with the children, or his knowledge of facts regarding their background, could have assisted either his counsel or the judge in asking questions that would have resulted in a more assured determination of competency. On the record of this case, therefore, we cannot say that respondent's rights under the Due Process Clause of the Fourteenth Amendment were violated by his exclusion from the competency hearing..."

The US Supreme Court reversed the judgment of the Kentucky Supreme Court.

Justice Vote: 3 Pro vs. 6 Con

  • Marshall, T. Pro (Wrote dissenting opinion)
  • Brennan, W. Pro (Joined dissenting opinion)
  • Stevens, J.P. Pro (Joined dissenting opinion)
  • Blackmun, H. Con (Wrote majority opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • White, B. Con (Joined majority opinion)
  • Powell, L. Con (Joined majority opinion)
  • O'Connor, S.D. Con (Joined majority opinion)
  • Scalia, A. Con (Joined majority opinion)

The ACLU, as amicus curiae, urged affirmance of the Kentucky Supreme Court judgment; the Supreme Court reversed in a 6-3 vote, giving the ACLU an apparent loss.