In Virginia, any person found in contempt of court has the right to appeal and the right to a hearing in a circuit court. The dilemma arises under Virginia Code §19.2-271 which prohibits a judge from testifying as to any matter which came before the judge in the course of his/her official duties. In contempt proceedings the trial judges testimony is essential to prosecute the offense. The person found in contempt is not given an opportunity to cross examine the judge as a witness. Theoretically, this would definitely violate a defendant’s right to confrontation. The Virginia Appellate Court has previously held that the defendant’s constitutional right to confrontation is not violated due to Virginia Code 18.2-459 that requires a judge to submit a certificate of the conviction and the particular circumstances of the offense in the case Baugh v. Commonwealth, 14 Va. App. 368 (1992).
However, since the Virginia Courts have looked at this issue, the law on the right to confrontation has changed. In 2004, the United States Supreme Court departed from its earlier test of reliability, changing how it interprets the 6th Amendment. The Supreme Court held in Crawford v. Washington, 541 U.S. 36 (2004), that the 6th Amendment provides a procedural guarantee to cross examine and test a statement. In order to have a right to confront a witness when the statement is hearsay, the defendant must show that the statement is testimonial in nature. When a statement is prepared for or given during trial, a preliminary hearing, or before a grand jury the statement is considered testimonial. The certificate that a judge prepares when there is a contempt of court appeal is without a doubt prepared as testimony for the prosecution of the offense on appeal.
Thus, under the new test in Crawford, the denial of the right to cross examine the judge who held the defendant in contempt of court is clearly a violation of the constitutional right to confrontation. Nevertheless, if this issue is raised within the Virginia courts, it is likely that they will uphold the current Virginia Code and find no constitutional violation. They would likely cite Chambers v. Mississippi, an old Supreme Court case that states that the right to confrontation is not absolute and must bow to accommodate other legitimate interests. It is necessary that the court balance the public policy consideration of the integrity of the court with constitutional rights. The Courts should not trod lightly on the few constitutional rights given to the citizens of this country. Before acquiescing to a public policy argument, it would be more logical to adopt the federal rule in this area which prohibits judges from testifying as a witness only when they are presiding at the trial.