Confrontation Clause and Prior Criminal History

"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. The right of the accused to cross-examine derives from the Confrontation Clause. Bruton v. United States, 391 U.S. 123 (1968). The Anglo-American tradition relishes live in-court testimony "by testing in the crucible of cross-examination." Crawford v. Washington, 541 U.S. 36 (2004). Only by cross-examination can a defendant expose falsehood and bring out the truth in a criminal trial. Pointer v. Texas, 380 U.S. 400 (1965).

In a criminal trial, when it comes down to it, cross-examination is all the defendant really has. It is the one thing standing between the truth and the government's case in chief. This hallmark of great trial lawyers alerts the jury to holes the government might want to conceal.

But this right has limitations. The issue in the following case is whether the Confrontation Clause allows cross-examination to get into an adverse witness' criminal history. The Appellate Division held in this case that it does not. This was because the adverse witness was fully cross-examined in front of the jury about inconsistent statements, and his testimony was corroborated by evidence linking the defendant to the crime.

State v. Raafiq Leonard (App. Div. 2009).