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Report No. 198

(A) Right to cross-examination absolute: initial cases:

We shall first refer to some of the leading decisions of the US Supreme Court, namely, Alford v. United States: (1931) 282 US 687; Pointer v. Texas: (1965) 380 US 400; Smith v. Illinois: (1968) 390 US 353129 which treated the right to cross-examination as absolute and without any exceptions.

In Alford, decided in 1931, the Supreme Court held that the trial Court had improperly exercised discretion by permitting a witness to give evidence without revealing his address. The Supreme Court held that the right to ask a witness where he lived was "an essential step in identifying the witness with his environment" to which cross examination may always be directed. It stated:

"no obligation is imposed on the Court...to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional right from self-incrimination. There is a duty to protect him from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him. But no such case was presented here".

Smith v. Illinois (1968) 390 US 129 was a case where the witness had refused to answer questions about his real name and address. Stewart J for the majority stated that where the credibility of the witness was in issue, the starting point on making inquiries about a witness's credibility is his name and address. He observed:

"when the credibility of a witness is in issue, the very starting point in 'exposing falsehood and bringing out the truth' through cross examination must necessarily be to ask the witness who he is and where he lives.

The witness's name and address open countless avenues of in-Court examination and out of Court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross examination itself."

White J's dictum:

In the concurring but separate judgment of White and Marshall JJ, they however pointed out that

"it may be appropriate to excuse a witness from answering questions about his or her identity if the witness's personal safety was endangered."



Witness Identity Protection and Witness Protection Programmes Back




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