April 06, 2011 The Tax Lawyer

Cross-Examination of the Government’s Witnesses in a Criminal Tax Defense Case

Vol. 64, No. 1 - Fall 2010

Michael Louis Minns

Introduction

    “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . [and] to be confronted with the witnesses against him . . . .” That impartial jury decides the ultimate question of guilt or innocence based, often in large part, on confrontation by cross-examination of witnesses hostile to the defendant—the ultimate tool to test the witnesses’ truth-telling. The Confrontation Clause requires the witness who is adverse to the defendant “to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth.’” “The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.”

    President Dwight Eisenhower recognized the principle of confrontation behind cross-examination:

I was raised in . . . Abilene, Kansas. We had as our marshal for a long time a man named Wild Bill Hickok . . . . Now that town had a code, and I was raised as a boy to prize that code.
It was: meet anyone face to face with whom you disagree. You could not sneak up on him from behind, or do any damage to him, without suffering the penalty of an outraged citizenry.

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