Oklahoma Criminal Law

Oklahoma Criminal Defense Lawyer Kevin Adams

The Right of Confrontation and Cross-Examination in Criminal Trials

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The Importance of Cross-Examination in Defending Criminal Cases

Along with the right to counsel and the right to trial by jury, a criminal defendant's right to confrontation is one of the most valuable rights a defendant possess. Often times the key to victory at trial and exoneration by the jury is exposing the biases of the government's witnesses. In Ford v. Wainwright, 477 U.S. 399, paragraph 36 (1986) , the United States Supreme court wrote:

"[C]ross-examination . . . is beyond any doubt the greatest legal engine ever invented for the discovery of truth."

A vital part of cross-examination is the right to expose the bias of the witnesses offering testimony against the accused the right to expose the bias of the witness.

In Davis v. Alaska, 415 U.S. 308 (1974) the United States Supreme Court also addresses the issue of a defendant’s right to confront the witnesses during trial.

The partiality of a witness is subject to exploration at trial, and is "always relevant as discrediting the witness and affecting the weight of his testimony." 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.

Davis v. Alaska, 415 U.S. 308, 316-317 (1974)


A defendant's right to expose the bias of witnesses testifying against them through confrontation is not codified in the rules of evidence in Oklahoma, but is found in common law. In Beck v. State, 824 P.2d 385 (Okla. Crim. App. 1992), the Oklahoma Court of Criminal Appeals explained the proper parameters of cross-examination regarding bias and that extrinsic evidence is permitted to establish bias.

Unlike the strict restrictions placed on most other forms of impeachment evidence, a witness may be cross-examined about any matter tending to show his bias or prejudice. See, e.g., Dunham v. State, 762 P.2d 969, 973 (Okla. Cr. 1988); Mills v. State, 733 P.2d 880, 882 (Okla. Cr. 1986); Crawford v. State, 688 P.2d 357, 360 (Okla. Cr. 1984). In fact, "the prohibition against extrinsic evidence of specific instances of conduct found in Section 2608(B) is inapplicable to impeachment evidence which tends to show a witness' bias . . ." Fisher v. State, 761 P.2d 900, 901 (Okla. Cr. 1988). Nevertheless, we have permitted the use of extrinsic evidence to demonstrate bias despite the prevailing rule against its use. See, Id. at 901; Rhodes v. State, 695 P.2d 861 (Okla. Cr. 1985). Clearly bias evidence is never collateral.

Beck v. State, 824 P.2d 385, 388 (Okla. Crim. App. 1992)


Also in Beck, the Court instruct on the constitution protections regarding cross-examination on testimony of bias and motive to lie.

We also recognize and adhere to the view of the United States Supreme Court that the exposure of a witness' motivation in testifying is a proper important function of the constitutionally protected right of cross- examination. , Delaware v. Van Arsdall, 475 U.S. 673, 683, 106 S.Ct. 1431, 1437, 89 L.Ed.2d 674 (1986); Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959). Thus, a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby "to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness." Delaware, 475 U.S. at 680, 106 S.Ct. at 1436. This is especially true in situations where the relations between the witness and the party to whom he serves is such that it may lead the witness to slant his testimony in favor or against a party. See Braden v. Hendricks, 695 P.2d 1343, 1348 (Okla. 1985).

Beck v. State, 824 P.2d 385, 389 (Okla. Crim. App. 1992)

Standard of Review and the Right of Confrontation

Understanding the concept of Standard of Review and knowing the Standard of Review that will be applied to specific legal situations is vital for both trial lawyers and appellate lawyers. This is very important for a criminal defense trial lawyer to understand. Generally speaking if you are going to successfully defend your client against the government, you are going to do so through an effective cross-examination.

You need to know that on appeal that an appellate court will review a court's restriction of a defendant's right for his or her counsel to cross-examine a witness differently depending on whether or not the limitations on cross-examination directly implicate a defendant's Sixth Amendment right of Confrontation.

Cross-Examination Limitation Implicates the Sixth Amendment

Where limitations on cross-examination directly implicate a defendant’s Sixth Amendment right of confrontation, the Oklahoma Court of Criminal Appeals will review the limitation using the “de novo” review standard. (See Scott v. State, 1995 OK CR 14, ¶¶ 21-27, 891 P.2d at 1292-93)

Cross-Examination Limitation Does Not Implicates the Sixth Amendment

The extent of cross-examination rests in the discretion of the trial court and reversal is only warranted where there is an abuse of discretion resulting in prejudice to the defendant, this is true as long as the restrictions on cross examination do not implicate the defendants Sixth Amendment right to confront the witnesses against them. (See Parker v. State, 1996 OK CR 19, ¶ 13, 917 P.2d 980, 984, cert. denied, 519 U.S. 1096, 117 S.Ct. 777, 136 L.Ed.2d 721 (1997).

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Kevin D Adams, Attorney at Law
36 East Cameron Street, #16 Tulsa, Oklahoma 74103
Phone: 918 582 1313