Fencing the Confrontation Clause

As the Court of Criminal Appeals aptly recognized, "the constitutional right of confrontation includes the right to cross-examine the witnesses and the opportunity to show that a witness is biased or that his testimony is exaggerated or unbelievable."  In the 1974 Supreme Court case Davis v. Alaska, the Court held that evidence that a witness with a juvenile record might be testifying because of a need to "curry favor" with the State or shift suspicion away from himself is constitutionally relevant and admissible under the Confrontation Clause.  However, rather than view this holding as one of inclusion, the CCA decided last week, in Irby v. State, that rather it was one of exclusion.  This recent holding by the CCA stands to significantly hamper the right to confrontation in Texas.

Regarding the right to confrontation of a witness with a prior juvenile record, the CCA held:

the confrontation clause may require the admission of such evidence if the cross-examination is reasonably calculated to expose a motive, bias, or interest for the witness to testify.  But the mere fact that a juvenile had been placed on probation or had some other vulnerable relationship with the State is not enough to establish bias or prejudice; the cross-examiner must show some causal connection between the witness’s vulnerable relationship and the witness’s testimony.

 Recognizing the potential implications of such a holding, Judge Holcomb dissented (joined by Judges Womack and Hervey), stating:

I believe that we cast a dark shadow on the constitutional right of confrontation by requiring a defendant to establish the kind of “logical relationship” the majority requires before allowing cross examination of a juvenile witness on his pending probationary record to show his possible bias or motive in testifying for the same prosecutorial authority which also supervises his probation. The majority, in my view, misapplies Davis v. Alaska, which clearly held that the constitutional right to question a juvenile witness regarding his pending probationary status trumps any State interest in protecting such juvenile offenders. Denying the defendant any opportunity to cross-examine a critical juvenile witness regarding his possible bias stemming from his probationary relationship with the State constitutes a denial of the right to effective cross-examination.