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CROSS-EXAMINATION

Cross-examination of a cooperating prosecution accomplice witness poses special problems for the defense attorney. In addition to a working knowledge of the law generally applicable to the accused’s Constitutional right to confront and cross-examine, this type of witness presents the practitioner with unique and often challenging opportunities to explore and attack the witness’ credibility and expose his biases and motives for testifying, other than telling the truth.

In this regard, there must be a plausible explanation as to why the snitch would be willing to lie and more importantly, why he would single out your citizen in particular. i.e. What benefit might accrue to the Government’s client for laying off some of the blame on yours.

Since the Government’s burden of proof “beyond a reasonable doubt” is often defined in terms of “such a doubt as would cause you to hesitate before acting in matters of utmost importance to you or your loved ones,” your aim should be to demonstrate that if after all the evidence is heard the jurors would not hesitate before acting on this slimeball’s representations in matters of utmost importance to them or their loved ones, your citizen never had a chance in the first place.

First the basics:

THE DEFENDANT HAS AN EXPRESS CONSTITUTIONAL RIGHT TO “CONFRONT” AND “CROSS-EXAMINE” ADVERSE WITNESSES

 “In all criminal prosecutions, the accused shall enjoy the right to …be confronted with the witness against him.”

SIXTH AMENDMENT GUARANTEE OF CONFRONTATION INCLUDES RIGHT TO CROSS-EXAMINE

 “[A] major reason underlying the Constitutional Confrontation Rule is to give a defendant charged with crime an opportunity to cross- examine the witness against him.”

Pointer v. Texas, 380 U.S. 400, 406-7 (1965).

But see            Delaware v. Van Arsdall, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (applicability of harmless error rule).

However, jointly tried co-defendants do not have the right to cross-examine each other where each one’s testimony does not inculpate the other. U.S. v. Crockett, 813 F.2d 1310 (4th Cir. 1987) (where judge found the co-defendant’s testimony exculpatory as to each other).

YOU HAVE THE RIGHT TO SEE THE WITNESS AGAINST YOU

However, the Supreme Court over Scalia’s dissent, held: upon a demonstration that a child would suffer severe emotional distress by confronting the accused his or her testimony could be received by closed circuit television. Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed. 666 (1990).

Maryland v. Craig has been adopted in Texas. Hightower v. State, 822 S.W.2d 48 (Tex. Cr. App. 1991). The Court of Criminal Appeals held that the use of a closed-circuit system to enable an alleged child victim to testify in a sexual assault trial pursuant to TEX. CODE CRIM. PRO. Art. 38.071(3) does not offend the Confrontation clause if the proper findings are made by the trial court.

See also           Manoccio v. Moran, 708 F.Supp 473 (D.R.I. 1989) (holding government can’t admit an autopsy report without affording the defendant an opportunity to confront and cross-examine the medical examiner). Reversed as habeas, Manoccio v. Moran, 919 F.2d 770 (1st Cir. 1990) (those portions of the autopsy report which go beyond medical data and conclusions are not admissible without opportunity to cross exam).

APPLICABLE TO STATES THROUGH FOURTEENTH AMENDMENT

 See                  Pointer v. Texas, 380 U.S. 400 (1965) (error to admit testimony at preliminary hearing where defendant not represented by counsel);

Parker v. Gladden, 385 U.S. 363 (1966) (right to confront Bailiff who made disparaging remarks while escorting jury).

STATE “VOUCHER RULE” DENIED DEFENDANT HIS SIXTH AMENDMENT RIGHT OF CROSS-EXAMINATION

 The common law notion of the “voucher rule” was that once a party called witness to testify on his behalf, the party “vouched” for the witness’s credibility. Chambers v. Mississippi, 410 U.S. 284, 295 (1973). Therefore, he was not allowed to impeach his own witness on cross-examination even if he later found that the witness gave false testimony. Chambers v. Mississippi, 410 U.S. 284, 295 (1973). The United States Supreme Court, however, stated that a ‘voucher’ rule denied a defendant “a trial in accord with traditional and fundamental standards of due process.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973)

See                  Chambers v. Mississippi, 410 U.S. 284 (1973) (defense counsel entitled to cross- examine witness regarding statements against interest, even though hearsay).

RIGHT TO FULL AND UNFETTERED CROSS-EXAMINATION

See                  Smith v. Illinois, 390 U.S. 337 (1970) (holding right to inquire as to witness’ true identity and residence);

Chambers v. Mississippi, 410 U.S. 284 (1973);

Davis v. Alaska, 415 U.S. 308 (1974) (noting right to cross-examine key fact witness as to pending juvenile probation to show bias or motive);

U.S. v. Miranda, 510 F.2d 385 (9th Cir. 1975)

Snyder v. Coiner, 510 F.2d 224, 225 (4th Cir. 1975);

Mississippi v. Pancer, 514 S.2d 767 (Miss.S.Ct. 1986) (stating right to use transcripts from prior trials and impeachment testimony of live witnesses); Lawson v. Murray, 837 F.2d 653 (4th Cir. 1988) (noting where a defense witness cut-off cross examination by invoking privilege against self-incrimination, trial court properly struck entire testimony of witness).

Accused’s Sixth Amendment right of confrontation [as well as Rule 402(2), Tex.R.Ev., “evidence of district trait or character of victim of the crime offered by an accused” and Rule 405(b), Tex.R.Ev., where “character or a trait of character of a person is an essential element of a

…defense, proof may also be made of specific instances of his conduct”] entitled defendant to inquire as to rape complainant’s subsequent sexual acts in order to demonstrate consent or acts consistent or “in keeping with a diagnosis of nymphomania.”

Chew v. State, 804 SW2d 633, No. 04-89-00149 (C.A.—San Antonio, February 20, 1991).

WHAT’S GOOD FOR THE GOOSE IS GOOD FOR THE GANDER

 The Supreme Court recently held that a court had discretion to preclude defense counsel from speaking to his client during a fifteen minute recess, Perry v. Leeke, 488 U.S. 272, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989).

Defense counsel should be mindful to ask courts to exercise such discretion to preclude the prosecutor from “coaching” their witnesses during recesses such as the lunch break, which seemed to afford witnesses with the opposition to “catch their breath” and rehabilitate prior transactions. Such was the obvious intent of the rules [i.e. Rule 613’s express provision that a cross-examiner need not show nor disclose contents of a prior inconsistent statement to the witness, even though same must be disclosed to opposing counsel on request. What good would such a rule do if opposing counsel were allowed, for example, to disclose the contents during a lunch recess?].

But see            Bovar v. Dugger, 858 F.2d 1539 (11th Cir. 1988) (per curiam) (holding more rights afforded accused in the Eleventh Circuit where the court found a fifteen minute recess was sufficiently long to permit meaningful consultation between the defendant and his attorney and that denial of same was a denial of the rights to effective assistance of counsel).

The Houston 14th District has approved the holding and reasoning of Perry v. Leeke. Schuldreich v. State, 899 S.W.2d 253, (Tex. App. – Houston [14th Dist.] 1995). The court quoted Perry to say, “When a defendant becomes a witness, he has no constitutional right to consult with his lawyer while he is testifying [although he has an absolute right beforehand].”

In Hightower v. State, 822 S.W.2d 48, 54 (Tex. Cr. App. 1991), the Court held that the Defendant’s right to effective assistance of counsel was not violated by his inability to sit with his lawyer during cross-examination of the child witness (closed-circuit television was used). The court, however, did point out that there was nothing in the record to show that the separation of counsel and his client impaired counsel’s ability to effectively cross examine the child witness. One of the cases the court cited was Perry v. Leeke.

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