Document Type

Article

Publication Date

2024

Abstract

According to the popular culture of criminal trials, skillful cross-examination can reveal the whole “truth” of what happened. In a climactic scene, defense counsel will expose a lying accuser, clear up the statements of a confused eyewitness, or surface the incentives and biases in testimony. Constitutional precedents, evidence theory, and trial procedures all reflect a similar aspiration—that cross-examination performs lie detection and thereby helps to produce accurate outcomes. Although conceptualized as a protection for defendants, cross-examination imposes some unexplored costs on them. Because it focuses on the physical presence of a witness, the current law of confrontation suggests that an opportunity for in-person questioning suffices to ensure the reliability of testimony. Confidence in the value of demeanor evidence endures despite extensive social science on the garbled signals that nonverbal cues send. That misplaced trust can lead to the admission of problematic evidence that has not otherwise been substantively tested. Reliance on cross-examination also precludes development of broader potential meanings of defendants’ Sixth Amendment right to confront the government’s case, which could require access to the reports and resources necessary to conduct effective questioning. In addition, appellate courts often point to cross-examination when they decline to consider trial errors or to evaluate the deficiencies of defense counsel. This Essay challenges conventional wisdom about the purposes of cross-examination. It suggests that a clearer view of its role could lead to deeper evaluation of the reliability of testimony, broader challenges to prosecution evidence, and more complete review for error.

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Library of Congress Subject Headings

Evidence (Law), Cross-examination, False testimony--Law and legislation, Truthfulness and falsehood

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