Terence MacCarthy - Maccarthy on Cross-examination

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Excerpt from Presumed Innocent by Scott Turow (Farrar, Straus & Giroux, 1987) used by permission of the author.

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Library of Congress Cataloging-in-Publication Data

MacCarthy, Terence.

Maccarthy on cross-examination / Terence F. MacCarthy.

p. cm.

1. Cross-examinationUnited States. I. Title.

KF8920.M33 2007

347.7375dc22

ISBN: 978-1-61438-338-3

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Epigraph

The age-old tool for ferreting out truth in the trial process is the right to cross-examination. For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law.

Perry v. Leake , 488 U.S. 272, 283 n.7 (1989)

[T] he principal purpose of cross-examination [is] to challenge whether the declarant was sincerely telling what he believed to be the truth, whether the declarant accurately perceived and remembered the matter he related, and whether the declarants intended meaning is adequately conveyed by the language he employed.

Ohio v. Roberts , 448 U.S. 56, 71 (1980)

Cross-examination often depends for its effectiveness on the ability of course to punch holes in a witness, testimony at just the right time, in just the right way.

Perry v. Leake, 488 U.S. 272, 282 (1989)

The Sixth Amendment right of an accused to confront the witnesses against him is a fundamental right.

Pointer v. State of Texas , 380 U.S. 400, 403 (1965).

[A] denial of cross-examination without waiver would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.

Brookhart v. Janis , 384 U.S. 1, 3 (1966)

In Alford v. United States, 282 U.S. 687, 692 (1931), in reversing a federal conviction because of restrictions on cross-examination, a unanimous Court stated:

It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them . To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial.

And in Smith v. Illinois , 390 U.S. 129, 132-33 (1968), the Court reversed a state conviction where the trial judge restricted the right of cross-examination.

Cross-examination is the greatest legal engine ever invented for the discovery of truth.

5 J. Wigmore, Evidence 1367 (J. Chadbourn, rev. 1974)

Cross-examination is the principle means by which the believability of a witness and the truth of his or her testimony are tested.

Davis v. Alaska , 415 U.S. 308, 316 (1974).