Cross-Examination

Melendez-Diaz v Washington (2009)

A certificate was offered at trial to show that a confiscated substance was cocaine. The chemist who did the test did not testify. Melendez was convicted, but the Court overturned the conviction. Held that Crawford barred the use of the certificates as the sole proof of the weight and chemical composition of the drugs since the chemist could not be cross-examined BUT EXPERT TESTIMONIES ARE USUALLY DISCLUDED?

State v Campbell (S.C. 1844):

Excluded a deposition taken by a coroner in the absence of the accused. It held "If we are to decide the question by the established rules of the common law, there could not be a dissenting voice. For, notwithstanding the death of the witness, and whatever the respectability of the court taking the depositions, the solemnity of the occasion and the weight of the testimony, such depositions are ex parte, and, therefore, utterly incompetent.

State v Webb (1794):

Held that depositions could be read against an accused only of they were taken in the presence of the accused. Rejecting a broader reading of the English authorities, the court held "It is a rule of the common law, founded on natural justice, that no man shall be prejudiced by evidence which he had not the liberty to cross examine.

Lee v Illinois (1986):

Involved a confession of a co-defendant in a murder case. The statement was "an admission against" hence admissible under state law, but was a statement by a co-defendant and inadmissible under Federal law (the Bruton rule). In the end "reliability" proved to be the deciding factor. The 6th amendment threatened to become a restatement of ancient hearsay law.

Cross Examination

Is presently the most contentious area of criminal procedure. In the past decade alone, the Court has decided three highly significant cases. A reactive procedure. It's probably the most important element of fairness in a trial. It is trial by fire. Cross examination subjects a witness's testimony to the intense heat of various facts and scenarios. If testimony survives, it will be believed. If it fails, it will be rejected, most likely in total.

The Modern Era:

It need not be the facts of the crime. Davis concerned the credibility of the witness. Miller concerned the victim's propensity for violence when the issue was self defense. The sixth Amendment does not bar all limitations, see Maryland v Craig which found that the sixth amendment's confrontation clause did not categorically prohibit cross-examination of child witnesses by this means.

Davis v Alaska (1974)

One of the few cases where the very right of confrontation was at issue The defendant was charged with grand larceny and burglary. At trial, he sought to question a key witness with elements of his juvenile record was prohibited by Alaska law Overturning the conviction, the Court found that imposition of the Alaska state prohibition violates the Sixth and Fourteenth. It unduly restricted his right to cross-examination on the issue of the witnesses credibility See people v Rodawald (1904) and People v Miller (1976)

Crawford v Washington (2004)

Reversed Roberts v Ohio Crawford was charged with stabbing a man who allegedly tried to rape his wife. Crawford did not testify and his wife Sylvia Crawford could not testify as a result of the marital privilege. Washington's marital privilege did not extend to tape recordings and a tape recording refuting the defendant's position was played. HOWEVER, Crawford could not cross examine the tape. The court (per Scalia) held admission violated the 6th amendment and reversed. The 6th amendment applied to any statement which was "testimonial". A formal statement to government officers bears testimony. It found that the Roberts test of reliability which left admission to hearsay principles to be too broad. SINCE ITS DECISION THE MAJOR ISSUES HAS BEEN WHAT IS "TESTIMONIAL"? (see Melendez-Diaz v Washington 2009)

Maryland v Craig (1990)

Sexual abuse of a child. The child, prosecutor, and defense counsel withdrew to another room, where the child was examined and cross-examined; the judge, jury, and defendant remained in the courtroom, where the testimony was displayed via closed circuit television The court found that the sixth amendment confrontation clause did not categorically prohibit cross-examination of child witnesses by this means. On the other hand, "confrontation" meaning the right to see one's accuser, has been rather strictly construed by the Court

Question: Will the possibility to cross-examine the witness in a prior action or proceeding suffice?

Some early cases went so far as to hold that prior testimony was inadmissible in criminal cases even if the accused had a previous opportunity to cross examine (Finn v Commonwealth 1827; State v Atkins (1807) MOst courts rejected the view, but only after reaffirming that admissibility depended on a prior opportunity for cross examination (State v Houser (1858); Kendrick v Sate (1850); Bostick v State (1842)

White v Texas (1992):

The court permitted statements under the excited utterance and medical diagnosis rule.

United States v Inadi (1985).

The court swept aside "unavailability" when confronted with the co-conspirator's exception to the hearsay rule.

Coy v Iowa (1988)

The court, per Justice Scalia, found that a screen placed between the defendant and alleged assault victims violated the defendant's right. The difference between Craig and Coy was that Craig could see the witness, Coy could not.

Roberts v Ohio (1980)

The defendant was convicted of theft and drug offenses. He claimed a missing witness had given him her parent's checkbook and credit cards to use. The witness failed to show. The prosecutor offered the preliminary hearing testimony of a witness. Although the defendant had the opportunity to cross-examine the witness at the pre-trial hearing, he chose not to do so. The trial court held that the defendant had the opportunity to cross-examine the witness at the pre-trial hearing, he chose not to do so. The trial court held that the defendant had adequate opportunity to cross-examine. The court affirmed the conviction: When a hearsay declarant is not present for cross-examination at trial . . . his statement is admissible only if it bears adequate 'indicia of reliability'. Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of untrustworthiness. Rule of Roberts: if the witness was unavailable; if there was prior opportunity to cross-examine; if the statement bore 'indicia of reliability' (hearsay exception) it would be admissible. Trouble with Roberts A nightmare in application. "Reliability" (falling within a hearsay exception) meant that application of a Federal right, the 6th amendment, which was made binding upon the states in Davis, was forced to turn on the application of state hearsay and availability rules. "Availability" also proved to be difficult, pursuant to United States v Inadi (1985). The court swept aside "unavailability" when confronted with the co-conspirator's exception to the hearsay rule. United States v Inadi (1985). The cou

Cross Examination in the original Constitution

The original Constitution, pre-amendment, contained no provision for protection of the right to cross examination although oddly it protected the right to trial by jury. It sparked debate, mostly because there was uncertainty as to where the new national government would fit in. Real fear existed as to whether the absence of such a right would abolish the existence of the right in various state constitutions such as virginia, pennsylvania, delaware, maryland, north carolina, vermont, massachusetts, new hampshire. Given the enormous historical precedent (raleigh), Madison's draft of what became the 6th passed with little debate. "In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him"

The right to cross examine and applicable amendment

The right to cross examine is referred to in the text of the Bill of RIghts. The sixth provides that: In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.

Litigation of the 6th

Unlike the situation confronting Raleigh, the power of the subpoena means that the most frequently litigated aspect of the 6th amendment has not been the right to physically confront the witness. Instead it has concerned those situations where it was believed that the right had been impinged upon by the use of out-of-court statements and depositions. If an out of court statement is entered, there's no ability to cross-examine it if it was not done during the statement.

The history of cross examination: Sir Walter Raleigh

VERY IMPORTANT, 1603 treason trial of Sir Walter Raleigh, The case's notoriety assured that this issue was first and foremost in the mind of James Madison as he drafted what became the Sixth Amendment An alleged conspiracy by English courtiers, of whom Sir Walter Raligh was one, to remove King James I from the English throne, to replace him with his cousin Arabella Stuart. In 1603, Raleigh was charged with conspiring with Lord Cobham and other to kill James I and to place Lady Arabella Stuart on the throne. Cobham, interrogated in infamous Tower of London, signed a sworn statement, upon which the case against Raleigh was based. Believing that Cobham had implicated him in an effort to save himself, Raleigh made an eloquent plea for the confrontational right which was later incorporated into the Sixth. Raleigh challenged that Codham should be produced against him, but the judges answered that such a law would be inadmissible by law since it was prejudicial to the King (lmao) Judge Popham replied with what was unwittingly the basis for production: "The accuser is not to be produced; for having first confessed against himself voluntarily, and so charged another person, if we shall now hear him in person, he may for favour or fear retract what formerly he hath said, and the jury may, by that means, be enticed . . ." Aka, they're not going to call him as a witness because he may change his statement, leaving them without a case. Sir Walter lost the trial and ultimately, after an unsuccessful fight with Spain, his life. However Popham's response was enlightening because his fear of cross examination was that the witness may change his testimony.

Bullcoming v New Mexico (2011)

answers the question: BUT EXPERT TESTIMONIES ARE USUALLY DISCLUDED? DWI, .21 BAC blood test. The analyst was not called to testify. The state called an analyst who was familiar with the laboratory's testing procedures, but had neither participated in nor observed the test on Bullcoming's blood sample. The defendant was convicted, the Court (per Ginsburg, reversed. Rejected the arguement that the report was not sworn but testimony based on what it was.