§ 36.04 RIGHT TO CROSS-EXAMINATION

• Jurisdiction: United States

§ 36.04. RIGHT TO CROSS-EXAMINATION

Every party has the right to cross-examine witnesses called by other parties or by the court.²² Wigmore wrote that cross-examination "is beyond any doubt the greatest legal engine ever invented for the discovery of truth."²³ In criminal cases, this right is guaranteed by the right of confrontation. As the Supreme Court has noted: "Our cases construing the confrontation clause hold that a primary interest secured by it is the right of cross-examination."²⁴ The Court, however, has recognized some limitations on this right: "It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel's inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant."²⁵

[A] Supreme Court Cases

Sometimes cross-examination is seriously impeded, if not completely frustrated, by an exclusionary statute or trial court ruling.²⁶ Several of the Court's cases on this issue are discussed in this section.

Bias. In Davis v. Alaska,²⁷ the trial court had prohibited the defendant from cross-examining a prosecution witness concerning that witness's status as a juvenile probationer. This curtailment of cross-examination was based on a state statute designed to protect the confidentiality of juvenile adjudications. The Supreme Court reversed: "The State's policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness."²⁸

In Delaware v. Van Arsdall,²⁹ a murder defendant sought to cross-examine a prosecution witness about a possible agreement to dismiss charges against the witness. The trial court barred any cross-examination, citing Delaware Rule 403. The Supreme Court reversed: "A criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby 'to expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness.' "³⁰

Lack of memory. In United States v. Owens,³¹ a hospitalized witness, suffering from a fractured skull, identified Owens as his attacker and picked his picture from a photo array. At trial, the witness testified about the attack, including his hospital identification of Owens. On cross-examination, however, he admitted that he could not remember seeing his assailant. The Supreme Court held that the witness's impaired memory did not deprive Owens of the right of cross-examination. According to the Court, the Confrontation Clause guarantees only an opportunity for effective cross-examination. This right is satisfied when the defendant has the opportunity to bring out such matters as a witness's faulty memory.³²

In Delaware v. Fensterer,³³ the prosecution contended that Fensterer had strangled the victim in their apartment with a cat leash. Two hairs on the leash were similar to the victim's hair, and an FBI analyst testified that one of the two hairs had been "forcibly removed" but he could not remember what method he had used to reach this conclusion.³⁴ The Court upheld the conviction, commenting that "the Confrontation Clause guarantees an opportunity for effective...