DAVIS V. ALASKA – The Right To Cross-Examination

Cross-Examination has been famously described as “the greatest legal engine ever invented for the discovery of truth.” At trial, cross-examination is the primary way to test, inspect, and examine the reliability of a witness’ testimony. It is through cross-examination that a witness can be impeached, or shown to be untruthful, biased, or otherwise lacking credibility. For this reason, the United States Supreme Court has held that a key aspect of a defendant’s Sixth Amendment right to confront witnesses is the right to question the witnesses on cross-examination in order to demonstrate to the jury why the witness should not be believed.

The case was Davis v. Alaska, 415 U.S. 308 (1974), and involved a burglary trial in which the prosecution’s star witness was a juvenile who was on probation for burglary. Prior to the witness’s testimony, the prosecution sought, and the judge granted, a protective order that barred the defense attorney from making any reference to the witness’s juvenile record on cross-examination. The defense theory was that the witness made a hasty and faulty identification of the defendant as the person who committed the burglary because the witness was on probation and wanted to shift the suspicion away from himself out of fear that his probation would be revoked. Thus, the defense attorney wanted to introduce the juvenile record to show possible bias or prejudice in the witness’s testimony. The defendant was convicted, and appealed on the ground that he was deprived of the right to cross-examine a key witness against him.

The Supreme Court agreed and reversed the defendant’s conviction, finding that the opportunity to question adverse witnesses is a vital constitutional right. The majority opinion recognized that questioning a witness on cross-examination “is the principal means by which the ability to believe a witness and the truth of his testimony are tested.” As such, on cross-examination, the attorney’s goal is to discredit the witness. This right goes beyond simply asking the witness whether he or she is biased. Instead, the cross-examiner must be afforded the opportunity to demonstrate why the witness is biased or untruthful.

In the Davis case, defendant’s attorney was entitled to impeach the witness’s credibility based upon his prior juvenile record. Another common way of impeaching a witness is to demonstrate that the witness is testifying in exchange for the prosecutor dropping charges against the witness. Because such circumstances may affect a witness’s motive to testify truthfully, a fair trial requires that the defense attorney be allowed to expose biases and motivations so the jury is able to draw informed inferences about the reliability of the witness.

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The paramount importance of cross-examination makes clear the need for an experienced and skilled criminal defense attorney to advocate on your behalf, contact Masorti Law Group today.