Cross-Examination

While the hearsay rule, which applies to both criminal and civil trials, recognizes the value of in-court cross-examination only by implication, criminal defendants can also assert an explicit constitutional right to cross-examination under the confrontation clause of the Sixth Amendment. That clause, which technically addresses only proceedings in federal court, has been interpreted to apply to state cases by virtue of the due process clause of the Fourteenth Amendment. It provides that, in all criminal prosecutions, the accused shall enjoy the right "to be confronted with witnesses against him."

When drafting the confrontation clause, the Framers were doubtless influenced by the English jurist William Blackstone, whose Commentaries on the Laws of England, first published in 1765–1769, had noted that "open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer, or his clerk." They also had a dramatic demonstration, in the well-known trial of Sir Walter Raleigh, of how a criminal defendant could be oppressed through the denial of confrontation. When Raleigh was tried in 1603 for treason against the Crown, the main piece of prosecution evidence was a sworn "confession" that Lord Cobham, an alleged co-conspirator, had made to officers of the Crown in proceedings at which Raleigh was neither present nor represented by counsel. Aware that Cobham had thereafter recanted his confession, Raleigh demanded that Cobham be produced, to give testimony in open court. The prosecution responded by producing not Cobham but a boat pilot, who told of having heard an unidentified Portuguese gentleman say that Raleigh and Cobham were plotting to kill the king. Raleigh was convicted and eventually executed, never having had a chance to test the reliability of the principal witnesses against him.

Over the years, the Supreme Court has interpreted the confrontation clause with an eye to Raleigh's plight. At its most basic, the clause has been read to give defendants the right to actually see and confront the witnesses the prosecution has called to give testimony under oath. The importance of this physical confrontation should not be underestimated. Seeing a witness testify will make a defendant better able to assist in his own defense, and seeing a defendant before her may help impress a witness with the importance of truthful testimony. There are to be no secret witnesses, and no trial witnesses identified but excused from giving live testimony.

The focus, in recent years, on prosecuting child abuse cases, and the recognition of the lasting harm that the criminal justice system can inflict on child witnesses, has put a special pressure on settled confrontation clause doctrine. In 1990, in Maryland v. Craig (497 U.S. 836 (1990)), a case involving a child witness testifying about alleged child abuse, the Supreme Court held that "the face-to-face confrontation requirement" is not absolute, and may be trumped by an important state interest, such as the need to protect young victims of child abuse from the trauma of testifying against the alleged perpetrator, so long as the reliability of the testimony is otherwise assured. The Court went on to suggest that a procedure wherein a child testified and was cross-examined by defense counsel, outside the presence of the defendant, judge, and jury—who all watched the proceedings via close-circuit television—might well pass constitutional muster, so long as there were specific findings of need in a particular case. Craig is an important case doctrinally because it envisions trials in which the jury never sees the interaction between a criminal defendant and his primary accuser. At least so far, however, it should be seen more as a response to the plight of the most vulnerable witnesses than as a rejection of the virtues of face-to-face confrontation.

Because there are limits to the benefits of a silent confrontation, the Supreme Court has also read the confrontation clause to allow criminal defendants a reasonable opportunity to cross-examine the witnesses whom the prosecution calls to the stand. The defendant whose lawyer is cut off in the middle of a prolonged inquiry into a witness's prior bad acts and prior inconsistent statements will rarely have a serious objection, even when good ammunition was left unused. Yet appellate courts have recognized the constitutional dimension of this right to inquire, and have reversed convictions where the defendant was prevented from pursuing an especially significant line of impeachment, even when the trial court's ruling was in accordance with state evidentiary law. The key Supreme Court cases have demanded that trial courts take particular care not to foreclose cross-examination that probes a prosecution witness's bias—their deal with the government to testify in exchange for leniency, or other reasons a witness might have to fabricate evidence against the defendant. These cases give a constitutional bite to the demand of defense counsel that she be permitted to cross-examine on matters that a witness believes private, even embarrassing. Where the privacy or dignitary interests of a witness have been given special protection by law, cross-examination may still be foreclosed. Thus, confrontation clause claims against the prohibition of inquiry into an alleged rape victim's prior sexual history have failed in a number of cases. But confrontation clause concerns do lead some (but certainly not all) courts to give defense lawyers more leeway in cross-examination than they give prosecutors, who have no constitutional right to assert.

Constitutional values can clash in this area when a criminal defendant asserts his constitutional right to probe a witness's credibility but the witness invokes his constitutional right against self-incrimination and refuses to answer questions that might expose him to future prosecution. When this happens, the witness's invocation, if valid, will trump the defendant's constitutional right to inquire. The witness will be able to remain silent. If this silence prevents the defendant from pursuing an important line of impeachment, a trial court might, if possible, prevent the witness from testifying in the first place. Alternatively, the court might seek to cure the prejudice by striking all or part of the witness's direct testimony from the record.