State Constitutions and Criminal Justice

By Barry Latzer | Go to book overview

dence--even if it falls within an exception to the hearsay rule. Thus, Mississippi would not permit hospital records to come into evidence (arguably falling within the business records exception) when the maker of the report did not take the stand.101

Cross-examination is also the time-honored mechanism for undermining the credibility of a witness, and the Supreme Court has been very solicitous of the criminal defendant's right to use the technique.102 The states have been equally protective, also upholding the defendant's right to cross-examine on such matters as a state witness's juvenile priors and his arrangement with the prosecutor for leniency in unrelated criminal matters.103 But Louisiana refused to hold that its confrontation clause was violated by the use of a rape-shield statute to bar testimony on a rape victim's prior sexual activity.104 The court found the evidence "essentially irrelevant."

A somewhat unusual confrontation issue arose in the South Dakota case of State v. Wiegers.105 The defense counsel subpoenaed three cell-mates of a state's witness because they stated they had heard the witness say that he had "lied . . . and hung the son of a bitch." One refused to testify and the other two recanted. The defense then established that a deputy had warned the three that they could get sentences for perjury equal to that of the defendant. Wiegers was nonetheless found guilty. On appeal, South Dakota's high court ruled that there was a "serious question" whether the defendant's state constitutional rights to call witnesses on his behalf and to confront adverse witnesses were impaired. The court remanded for a determination on the voluntariness of the recantation, guaranteeing a new trial should the recanted testimony prove tainted.

Except for Wiegers and the child witness cases, state confrontation rulings have been largely a reflection of the federal. Especially to be noted is the widespread adoption of the rule that with adequate safeguards, such as the hearsay exception for prior sworn testimony, the statements of an unavailable witness are admissible at trial.106 Thus, for both the right to counsel and confrontation rights, state constitutions generally provide no more protection than the federal. Supreme Court cases interpreting these rights, unlike those on search and seizure and Miranda, have not inspired much of a revolt.107


NOTES
1.
Scott v. Illinois, 440 U.S. 367 ( 1979) (no state-paid counsel for indigent not actually imprisoned); Argersinger v. Hamlin, 407 U.S. 25 ( 1972) (state-paid counsel for

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