18-d-5 Confronting and Cross-examining Witnesses

LibraryA Jailhouse Lawyer's Manual (2020 Edition)

18-D-5. Confronting and Cross-Examining Witnesses

Even though you generally have the right to call witnesses on your behalf, the Supreme Court in Wolff v. McDonnell held that you do not have a constitutional right to confront and cross-examine the other side's witnesses (in other words, to ask them questions). The Court found that such a right would create "considerable potential for havoc [or problems] inside prison walls." 177 One court interpreting Wolff described the security issues posed by confrontation and cross-examination as including the possibility of retaliation against adverse witnesses and informants (those testifying unfavorably or against you), in addition to the "potential for breakdown in authority." 178 Due to the prison's strong interest in keeping the prison safe, the right to confront and cross-examine adverse witnesses is much more limited than the right to present witnesses who testify on your behalf. Whether you will be allowed to confront and cross-examine witnesses is left up to the prison officials.179 Prison officers are not required under the Due Process Clause to provide you with a written report of the reasons for denying you the right to confront your accusers or to cross-examine witnesses.180

In New York, courts have held that prisoners do not have the right to be present when adverse witnesses testify if the witness is called by the Hearing Officer.181 Prison officials must, however, provide some objective evidence to support a decision to interview witnesses without you being there.182 They may also be required to give you a...

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