§ 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.²⁰ Wigmore wrote that cross-examination "is beyond any doubt the greatest legal engine ever invented for the discovery of truth."²¹ 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."²² 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."²³

[A] Supreme Court Cases

Sometimes cross-examination is seriously impeded, if not completely frustrated, by an exclusionary statute or trial court ruling.²⁴ Several of the Court's cases on this issue are discussed in this section.

Bias. In Davis v. Alaska,²⁵ the trial court prohibited 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."²⁶

In Olden v. Kentucky,²⁷ an alleged rape victim testified that Olden had tricked her into leaving a bar, raped her, and then drove her to the house of Bill Russell, where she was released. Russell, also a prosecution witness, testified that he had seen the victim leave Olden's car and that she had immediately complained of rape. The defense claimed consent, arguing that the victim and Russell were involved in an extramarital relationship and that the victim fabricated the rape story to explain to Russell why she was in the defendant's car. By the time of trial, the victim and Russell were living together, but the trial judge refused to permit cross-examination on this fact. The judge believed that this information would prejudice the jury against the victim because she was white and Russell was African American. The Supreme Court reversed per curiam. Olden had consistently maintained that the alleged victim lied because she feared jeopardizing her relationship with...