Handling Prosecution Witnesses

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 695-709

695

CHAPTER 31

HANDLING

PROSECUTION

WITNESSES

§ 31.01 Cross-Examining Prosecution

Witnesses—Generally

Defensive cross-examination should ordinarily be narrowly focused. Most of what the

witness is sayi ng is probably true and accurate; diffu se cross-examination wil l only dem-

onstrate this and bolster the witness. Defense counsel should concentrate on specif ic

weak points and crucial details of the witness’s testimony. Except in the relatively rare

situation in which it is necessary and possible to portray the witness as an outright per-

jurer—when, for example, the wit ness’s testimony is exceedingly damaging, s/ he could

not plausibly be mistaken with regard to critical details, and substantial motivation for

lying can be made to appear —it is probably wise to confine the cross-examiner’s attack

on the witness’s story to the narrowest possible compass.

However, when a broad and forceful attack on the witness’s credibilit y is advised,

counsel has the right to pursue it, and should strenuously object to any attempt by the

court to “‘protect [the] . . . witness from being discredited,’” Davis v. Alaska, 415 U. S.

308, 320 (1974), by limiting cross-exam ination. The right to a “probing and search-

ing cross examination” is commonly guaranteed by state law; in addition, “[t]he Con-

frontation Clause [of the Sixth Amendment to the federal Constitution] . . . has long

been read as securing an adequate opportunity to cross-examine adverse witnesses,”

United States v. Owens, 484 U.S. 554, 557 (1988) (dictum); see, e.g., Douglas v. Alabama,

380 U.S. 415, 418 (1965); Lee v. Illinois, 476 U.S. 530 , 539– 43 (1986). See also Crawford

v. Washing ton, 541 U.S. 36, 61 (2004) (the Confrontation “Clause’s ultimate goal is to

ensure reliabilit y of [prosecutorial] evidence . . . [by] command[ing] . . . that reliability

be assessed in a part icular manner: by testing in the cruc ible of cross-examination”).

“[R]estrictions imposed by . . . the trial court on the scope of cross-examination” are,

therefore, constitutionally assailable, Delaware v. Fenste rer, 474 U.S. 15, 18 (1985) (per

curiam) (dictum); see, e.g., Smith v. Illinois, 390 U.S. 129 (1968); Davis v. Alaska, 415

U.S. at 315–20; Olden v. Kentucky, 488 U.S. 227 (1988) (per curiam); specifically, “a

[respondent] . . . states a violation of the Confrontation Clause by showing t hat he

was prohibited from engaging in ot herwise appropriate cross-examinat ion designed to