In State v. Williams, decided January 13, 2021, the SC Court of Appeals reaffirmed that a defendant has a constitutional right to cross examination of a witness as to the length of the potential sentence they are facing.

Of course, that right is meaningless when, as in this case, the trial court denies it and the Court of Appeals finds that it is harmless error…

It’s critical for any criminal defense trial attorney to understand what the Constitution requires, because, as in the Williams case, the prosecutor will attempt to limit your cross examination (because it exposes their promises, threats, and lies), and because the judge will often allow it if you do not have the cases ready and at your fingertips to make a record and to show that it would be reversible error.

When you are on trial, your attorney has the right to cross examine the state’s witnesses to bring out their bias and their reason for lying. That right is found in the Rules of Evidence (Rule 608) and the SC and US Constitutions (the Confrontation Clause found in the Sixth Amendment).

Below, we’ll talk about what’s fair game during cross examination of a state’s witness, and I’ll go through some other examples of cross examination questions that the SC Supreme Court and the US Supreme Court have held are constitutionally protected under the Confrontation Clause.

Rule 608 – Cross Examination and Evidence of Bias

Perhaps the most important right in cross examination is the right to expose a witness’s bias – why would they lie?

If the prosecutor were literally holding a gun to the head of a witness as they testified during trial, would you trust what they had to say?

What if the state has the power to either 1) let the witness go home to their family and live free or 2) put the witness in prison for years or even the rest of their life? Wouldn’t it be important for the decision makers – the jurors – to know this fact?

Rule 608 of the SC Rules of Evidence says that “[b]ias, prejudice or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced.”

That means that you have the right to expose any motive to lie, including the witness’s instinct for self-preservation and the specific nature of express or implied threats from the prosecution. You can introduce evidence of bias either through cross examination of the state’s witness or through your own witnesses who have personal knowledge of the state’s witness’s bias.

Below, we’ll look at some specific types of cross examination that are constitutionally protected, but first let’s go over a few of the evidence rules regarding impeachment and attacks on a witness’s credibility.

Cross Examination and Evidence of Character

Evidence of bias under Rule 608 is not the same as evidence of character – if you want to talk about why the state’s witness is just an all-around untrustworthy person, there are rules you must follow:

• You can only introduce evidence as to a witness’s general reputation for truthfulness or untruthfulness, through testimony from someone who knows the state’s witness;
• Once a witness’s character for truthfulness has been attacked, that side can then introduce evidence of truthful character; and
• In the discretion of the court, you may be able to discuss specific instances of truthfulness or untruthfulness in reply to an attack on credibility.

Rule 609 – Evidence of Prior Crimes

Under Rule 609, you can attack the credibility of a witness with their prior convictions for crime in some cases:

• If the witness is not the defendant, evidence of convictions that would carry a year or more as a potential sentence or convictions that involve dishonesty are admissible.
• If the witness is the defendant, evidence of convictions that would carry a year or more are admissible only if the probative value of the conviction outweighs its prejudicial effect to the defendant, or if the convictions involved dishonesty.

With a few exceptions, convictions more than 10 years old are not admissible against any witness.

Rule 613 – Impeachment by Prior Inconsistent Statement

Under Rule 613, you can impeach a witness with their prior inconsistent statements.

If the witness admits making the prior inconsistent statement, you must move on. But, if the witness denies making the prior inconsistent statement, you can introduce “extrinsic evidence” to prove that they made the statement – either through an audio recording of the prior statement or later witness testimony when it’s your turn to call witnesses.

Rule 607 – You can Impeach Your Own Witness

Did you know that you can impeach your own witness?

Congratulations if you did, because I’ve seen several prosecutors and judges who claim they have never heard of Rule 607, which says “[t]he credibility of a witness may be attacked by any party, including the party calling the witness.”

You can call a witness to the stand, knowing that they will lie, and then prove the lie through extrinsic evidence…

Rule 806 – Hearsay Declarants can be Impeached

What if the prosecutor gets the court to agree to allow hearsay evidence against you? How do you cross examine a witness who is not there?

Rule 806 says that you have the right to cross examine the hearsay witness even though they are not present:

• You can attack the credibility of the absent witness;
• You can introduce any evidence that would have been admissible if the hearsay witness had been there;
• The hearsay witness does not need to be given any opportunity to deny or explain the evidence that you introduce against them; and
• If you later call the hearsay witness during your case, you can now cross examine them as a hostile witness (otherwise you would have been limited to direct examination as if they were your own witness).

Cross Examination and the Right to Confrontation in a Criminal Trial

The SC Supreme Court and the US Supreme Court have issued opinions that cover most situations where a state’s witness’s bias needs to be exposed – because prosecutors will attempt to limit your cross examination and judges will go along with them, every trial lawyer in a criminal case should be familiar with these opinions and have them readily available during trial.

• State v. Sims: You can cross examine a witness about their pending charges, including the specific details of the allegations and potential penalties.
• State v. Mizell: You can cross examine a state’s witness about the potential sentence they are facing on their own charges – even if it’s the same as the defendant’s (ordinarily, you cannot tell the jury what a defendant’s potential sentence is if convicted).
• State v. Gracely: You can cross examine a witness about mandatory minimum sentences that they face, even if it is the same mandatory minimum sentences that the defendant is facing.
• State v. Jones: You can cross examine a witness about times they have negotiated plea bargains with the state, even if they do not currently have pending charges, to show the jurors that the witness is familiar with the system of plea bargaining and rewards for favorable testimony.
• State v. Brown: You can cross examine a witness about what their potential sentence would have been, even if the state has already reduced their charges.
• State v. Smith: You can cross examine a witness about their pending charges and potential sentence even if their charges are unrelated to the defendant’s case.
• Davis v. Alaska: You can cross examine a witness 1) about their status on probation 2) even if they are a juvenile offender.

Criminal Defense Lawyer in Charleston, SC

Charleston, SC criminal defense attorney Grant B. Smaldone represents people charged with crimes in SC state and federal courts.

If you have been charged with a crime or believe that you are under investigation in the Charleston, Georgetown, or Myrtle Beach areas of SC, call now at (843) 808-2100 or send an email to schedule a free consultation.