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During a trial, virtually all evidence is presented to the fact finder (usually a jury in criminal cases, but sometimes a judge) through witnesses called by each party during that party’s case. The party that has called a witness first has an opportunity to elicit testimony from that witness in direct examination. At the conclusion of direct examination, and usually with little delay, the opposing party will have a chance to crossexamine the witness (although he is not obliged to do so).
The Art and Style of Cross-Examination
During direct examination, the party who has called the witness to the stand will, if at all possible, appear to let the witness tell his story on his own. The style of direct examination—nonleading questions, which do not point the way to a particular answer—is generally required by the rules of evidence. It also makes tactical sense for the examiner, since the fact finder will probably not believe someone who sounds like he is just agreeing to words that a lawyer puts into his mouth. The picture presented may be quite artificial, since the examining lawyer may have done a lot during trial preparation to structure the witness’s account. But much of the persuasiveness of a witness’s account will come from the integrity of his narrative—i.e., the degree to which the witness conveys a plausible story in language appropriate to both the story and to the witness himself (or at least what the witness seems to be).
If the key to a successful direct examination is constructing a narrative, the key to crossexamination is deconstructing that narrative, and perhaps developing an alternative one. The goal of the cross-examining attorney (at least when she thinks her side has been disadvantaged by a witness’s testimony) is to highlight the artificiality of the narrative presented on direct examination, showing it to be selective and willful. And the style of cross-examination is calculated to achieve this goal. Here, where is it less likely that the witness will cooperate with the examiner’s project, the rules of evidence will permit counsel to proceed through leading questions, and she is apt to do so. Indeed, cross-examination will generally be done through a sequence of short questions that cannot plausibly be denied, and that are barely ‘‘questions’’ at all. A lawyer conducting a good direct examination will often seem to fade into the background. On cross-examination, the lawyer takes center stage, sometimes even overshadowing the witness. The effect is rarely, if ever, that depicted in the movies or on television, when the browbeaten witness collapses on the stand and admits having committed the crime himself. Nor must cross-examination be done in a loud voice, five inches from the witness’s face. Judges tend to protect witnesses against such abuse, and it is rarely a productive tactic anyway. Nevertheless, a good cross-examination can still be quite dramatic.
Keeping a tight rein on the witness through leading questions to which the witness can answer only ‘‘yes’’ or ‘‘no,’’ the good crossexaminer may use a variety of tactics to lessen or even reverse the impact of the witness’s direct examination. She may make the witness go back over some of the terrain covered during direct examination, forcing the witness to concede ‘‘facts’’ inconsistent with the previous narrative. She may confront the witness with statements the witness made before trial that are inconsistent with the witness’s direct testimony. She may challenge the witness’s ability to have perceived the events in question, or to have remembered them. She will, if possible, impeach the witness’s credibility by eliciting admissions concerning his bias toward or against a party in the case. She may question the witness about previous instances in which he lied or acted deceitfully, in an effort to suggest that the witness is the kind of person likely to lie or shade the truth. She may also try to show the ‘‘true’’ character of the witness, by baiting him into shedding the calm demeanor with which he responded to questions on direct examination. Sometimes, the cross-examiner will not even care what the witness says. The point is to let the jury see him squirm. The judge will generally instruct that questions are not ‘‘evidence,’’ but that the jury can still consider the witness’s responses in the context of the questions. The difference between taking assertive questions as fact and taking them as mere ‘‘context’’ may seem small or nonexistent, particularly to a lay juror.
The general rule used to be that a party could not impeach the credibility of people it had called to the stand, the rationale being that a party had ‘‘vouched’’ for the credibility of those witnesses. Recent years have seen the rejection of this rule, however. Rulemakers have generally come to recognize that parties may be forced to put on witnesses whose testimony is true only in certain parts, so far as the parties are concerned, and may need to impeach the witness on other parts.
Protection of The Right to Cross-Examine: The Hearsay Rule
The value that the American legal system places on cross-examination as a fact-finding tool is reflected in the hearsay rule. This rule (legislatively imposed in many jurisdictions, including federal, but a matter of common law in others) bars the introduction of statements made out of court if those statements are being offered to prove the truth of what the out-of-court declarant intended to say. (If the statements are offered to prove something other than their ‘‘truth’’— perhaps the mere fact that they were said is relevant—the hearsay rule poses no bar to their consideration.) The rationale for the rule is that a fact-finder ought not to rely on the truth of a statement that someone made when no one had a chance to cross-examine him. Rather than trust a jury to discount the reliability of these untested statements, the hearsay rule categorically excludes them from trials, even in those trials in which the person who made the out-of-court statement actually testifies as a witness. The fear is not simply that the jury would not be able to tell the difference between a first-hand account and a second- or third-hand account, but that the jury would be more ready to credit evidence from an out-of-court declarant (who would not be subject to cross-examination) that is presented through documentary proof or a naive trial witness than to credit evidence from an in-court witness subject to cross-examination. In the absence of the hearsay rule, parties would thus have a disincentive to present their cases through witnesses with personal knowledge of the matters at issue.
There are, of course, many exceptions to the hearsay rule. Some, like those covering business records or statements made in response to a startling event, arose because legislators or courts decided that out-of-court statements under these special circumstances were sufficiently reliable to be considered at trial for their truth even in the absence of cross-examination. Other exceptions, like those permitting one party to introduce any out-of-court statements by the opposing party, developed out of considerations of fairness and accountability. Notwithstanding the proliferation of such exceptions in recent years, however, the hearsay rule cuts deeply, frequently preventing the introduction of highly relevant out of court statements, and encouraging the use of incourt witnesses who can be cross-examined at trial.
The Confrontation Clause
While the hearsay rule, which applies to both criminal and civil trials, recognizes the value of in-court cross-examination only by implication, criminal defendants can also assert an explicit constitutional right to cross-examination under the confrontation clause of the Sixth Amendment. That clause, which technically addresses only proceedings in federal court, has been interpreted to apply to state cases by virtue of the due process clause of the Fourteenth Amendment. It provides that, in all criminal prosecutions, the accused shall enjoy the right ‘‘to be confronted with witnesses against him.’’
When drafting the confrontation clause, the Framers were doubtless influenced by the English jurist William Blackstone, whose Commentaries on the Laws of England, first published in 1765–1769, had noted that ‘‘open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer, or his clerk.’’ They also had a dramatic demonstration, in the well-known trial of Sir Walter Raleigh, of how a criminal defendant could be oppressed through the denial of confrontation. When Raleigh was tried in 1603 for treason against the Crown, the main piece of prosecution evidence was a sworn ‘‘confession’’ that Lord Cobham, an alleged co-conspirator, had made to officers of the Crown in proceedings at which Raleigh was neither present nor represented by counsel. Aware that Cobham had thereafter recanted his confession, Raleigh demanded that Cobham be produced, to give testimony in open court. The prosecution responded by producing not Cobham but a boat pilot, who told of having heard an unidentified Portuguese gentleman say that Raleigh and Cobham were plotting to kill the king. Raleigh was convicted and eventually executed, never having had a chance to test the reliability of the principal witnesses against him.
Over the years, the Supreme Court has interpreted the confrontation clause with an eye to Raleigh’s plight. At its most basic, the clause has been read to give defendants the right to actually see and confront the witnesses the prosecution has called to give testimony under oath. The importance of this physical confrontation should not be underestimated. Seeing a witness testify will make a defendant better able to assist in his own defense, and seeing a defendant before her may help impress a witness with the importance of truthful testimony. There are to be no secret witnesses, and no trial witnesses identified but excused from giving live testimony.
The focus, in recent years, on prosecuting child abuse cases, and the recognition of the lasting harm that the criminal justice system can inflict on child witnesses, has put a special pressure on settled confrontation clause doctrine. In 1990, in Maryland v. Craig (497 U.S. 836 (1990)), a case involving a child witness testifying about alleged child abuse, the Supreme Court held that ‘‘the face-to-face confrontation requirement’’ is not absolute, and may be trumped by an important state interest, such as the need to protect young victims of child abuse from the trauma of testifying against the alleged perpetrator, so long as the reliability of the testimony is otherwise assured. The Court went on to suggest that a procedure wherein a child testified and was crossexamined by defense counsel, outside the presence of the defendant, judge, and jury—who all watched the proceedings via close-circuit television—might well pass constitutional muster, so long as there were specific findings of need in a particular case. Craig is an important case doctrinally because it envisions trials in which the jury never sees the interaction between a criminal defendant and his primary accuser. At least so far, however, it should be seen more as a response to the plight of the most vulnerable witnesses than as a rejection of the virtues of face-to-face confrontation.
Because there are limits to the benefits of a silent confrontation, the Supreme Court has also read the confrontation clause to allow criminal defendants a reasonable opportunity to crossexamine the witnesses whom the prosecution calls to the stand. The defendant whose lawyer is cut off in the middle of a prolonged inquiry into a witness’s prior bad acts and prior inconsistent statements will rarely have a serious objection, even when good ammunition was left unused. Yet appellate courts have recognized the constitutional dimension of this right to inquire, and have reversed convictions where the defendant was prevented from pursuing an especially significant line of impeachment, even when the trial court’s ruling was in accordance with state evidentiary law. The key Supreme Court cases have demanded that trial courts take particular care not to foreclose cross-examination that probes a prosecution witness’s bias—their deal with the government to testify in exchange for leniency, or other reasons a witness might have to fabricate evidence against the defendant. These cases give a constitutional bite to the demand of defense counsel that she be permitted to crossexamine on matters that a witness believes private, even embarrassing. Where the privacy or dignitary interests of a witness have been given special protection by law, cross-examination may still be foreclosed. Thus, confrontation clause claims against the prohibition of inquiry into an alleged rape victim’s prior sexual history have failed in a number of cases. But confrontation clause concerns do lead some (but certainly not all) courts to give defense lawyers more leeway in cross-examination than they give prosecutors, who have no constitutional right to assert.
Constitutional values can clash in this area when a criminal defendant asserts his constitutional right to probe a witness’s credibility but the witness invokes his constitutional right against self-incrimination and refuses to answer questions that might expose him to future prosecution. When this happens, the witness’s invocation, if valid, will trump the defendant’s constitutional right to inquire. The witness will be able to remain silent. If this silence prevents the defendant from pursuing an important line of impeachment, a trial court might, if possible, prevent the witness from testifying in the first place. Alternatively, the court might seek to cure the prejudice by striking all or part of the witness’s direct testimony from the record.
Interaction Between Confrontation Clause and Hearsay Rules
The Supreme Court has also recognized that the guarantee of reasonable cross-examination of witnesses who appear in court can be of limited value when those witnesses simply repeat what some out-of-court declarant said at some previous time. It did not do Sir Walter Raleigh much good to be able to cross-examine the boat pilot, when the pilot could shed no light on the reliability of the unidentified Portuguese gentleman and could only repeat what he heard the gentleman say. The Court therefore has read the confrontation clause’s reference to ‘‘witnesses’’ to include out-of-court declarants on whose extrajudicial statements the prosecution seeks to rely. This reading, at least in theory, might have paved the way to an entire body of constitutional evidentiary doctrine that paralleled the hearsay rule in its concern with the reliability of out-ofcourt statements, but put more of an emphasis on in-court confrontation. That has not occurred, however. The important move the Court made was to reason that, under the confrontation clause, physical confrontation and crossexamination are largely means to the more general end of assuring the reliability of evidence. And because the Court has seen well-established hearsay doctrine as serving this same end, it has generally found that the confrontation clause requires no more in the way of reliability or physical confrontation than does standard hearsay doctrine. If, for example, the circumstances under which an out-of-court statement was made are found to satisfy the requirements of the ‘‘dying declaration’’ hearsay exception, or those of the rule allowing statements ‘‘made for the purposes of medical diagnosis or treatment,’’ the Court would allow a jury to consider it, without any separate inquiry into the reliability of the particular statement, or into why the party offering the statement failed to produce the out-ofcourt declarant for cross-examination.
Even where cross-examination is required by the confrontation clause, it does not necessarily have to be particularly effective in order for the clause to be satisfied (at least under recent interpretations). An opportunity to confront a witness ready and willing to answer questions will generally suffice. Thus, where the victim of an assault could testify to having previously identified the defendant as his attacker while in the hospital, but could not recall having seen his assailant or whether any of his hospital visitors had suggested that the defendant had committed the crime, the Court found it sufficient that defense counsel could inquire into such matters as the witness’s bias, his eyesight, and his memory. ‘‘The weapons available to impugn the witness’s statement when memory loss is asserted,’’ the Court noted in United States v. Owens, 484 U.S. 554, 560 (1988), ‘‘will of course not always achieve success, but successful cross-examination is not the constitutional guarantee’’ (p. 560).
A criminal defendant may be found to have forfeited his confrontation clause right to challenge the introduction of an unavailable witness’s out-of-court statements if the defendant had a hand in preventing that witness from appearance in court by, say, bribing the witness to stay away, threatening the witness, or having the witness murdered.
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