18-d-5 Confronting and Cross-examining Witnesses

• Library: A 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...