Articles Tagged with cross-examination

Here is an interesting case from the Tenth, about cross-examination of a witness about a prior judicial “finding” that the witness was not credible — United States v. Woodard.

The court states this basic principle from its own jurisprudence:

The Sixth Amendment guarantees the right of a defendant to “be confronted with the witnesses against him.”  U.S. Const. amend. VI.  One of the primary interests secured by the Sixth Amendment’s confrontation clause is the right of cross-examination.  Davis v. Alaska, 415 U.S. 308, 315 (1974).  This is the“principal means by which the believability of a witness and the truth of his testimony are tested.”  Id. at 316.  A violation of this constitutional right occurs when “the defendant is prohibited from engaging in otherwise appropriate cross-examination that, as a result, precludes him from eliciting information from which jurors could draw vital inferences in his favor.”  United States v. Montelongo, 420 F.3d 1169, 1175 (10th Cir. 2005) (internal quotation marks omitted).  Stated differently, “‘a defendant’s right to confrontation may be violated if the trial court precludes an entire relevant area of cross-examination.’”  Id. (quoting Parker v. Scott, 349 F.3d 1302, 1316 (10th Cir. 2005)).

To paraphrase CMTG, Military (Federal) Rule of Evidence 801(d)(1) provides that

A statement is not hearsay if:

1.  The declarant testifies and is subject to cross-examination about a prior statement.

2.  The declarant testified under oath at a prior “hearing” or “or proceeding.”

Evan Schaeffer has posted an interesting tip, reminder, on his Trial Practice Tips Weblog.  There are two requirements for success in exposing the liar.

First, you must be certain that you can establish that the witness has a "clear-cut motive to fabricate that the jury will understand";

Second,  you must be certain that you have at least one "clean substantive line of cross-examination" during which you can establish that the witness probably lied.

Your client is charged with burglary, theft, and false official statement.  You call a good Sailor witness.  The witness testifies.  Imagine the questions I asked in MJ Summer Camp I, or just as easily that there has been no prior impeachment cross-examination.

Trial counsel:  LTC Witness, does a good Sailor commit burglary?  No.

Trial counsel:  LTC Witness, does a good Sailor commit theft?  No.

The King James (UK) version of Proverbs 18-17 says:   He that is first in his own cause seemeth just; but his neighbour cometh and searcheth him.

The King James (Am.) version says:  He that is first in his own cause seems just; but his neighbor comes and searches him.

The New Living Testament (2007) says:   The first to speak in court sounds right–until the cross-examination begins.

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