Cross-examination is the examination of a witness by a party opposed to the party who produced the witness. Cross-examination is based upon and comes after the direct examination of the witness, in most cases directly following the direct examination. It serves to test the credibility of the witness and the truth of the witness’s evidence and to ascertain and exhibit all aspects involving the witness with respect to the parties, to bring out facts which may have a bearing on the witness’s testimony or the subject of the litigation and to bring out the witness’s interest, bias, means of obtaining a correct and certain knowledge of the facts and powers of discernment, memory and description.1 Cross-examination is one of the safeguards of the accuracy and truthfulness of testimony.2 “Wisely employed, it is perhaps the most powerful weapon in the arsenal of the lawyer in pursuit of the whole truth.”2.1
All parties have a fundamental right, and not a mere privilege, to cross-examine witnesses called by an adverse party.3 This right derives in criminal cases from the constitutional right to confront witnesses4 and in civil cases from principles of due process.5 Underlying this right is the principle that individuals are entitled to elicit through cross-examination information sufficient to appraise the motivations and biases of the witnesses.6 However, the right is not unlimited in scope.7
If a party is deprived of the opportunity for cross-examination without fault on the part of that party, that party is entitled to have the direct testimony stricken from the record.8
1. Wilkerson v. State, 953 A.2d 152, 156 (Del. 2008); Fensterer v. State, 493 A.2d 959, 963 (Del.), rev’d on other grounds, 474 U.S. 15 (1985); Keys v. State, 337 A.2d 18, 22 (Del. 1975); A. H. Angerstein, Inc. v. Jankowski, 187 A.2d 81, 86 (Del. Super. 1962).
2. Atkinson v. State, 778 A.2d 1058, 1061-62 (Del. 2001), cert. denied, 535 U.S. 1011 (2002); Jackson v. State, 770 A.2d 506, 515 (Del. 2001); A. H. Angerstein, Inc. v. Jankowski, 187 A.2d 81, 86 (Del. Super. 1962); State v. Adams, Cr. A. No. N85-10-01 16T, slip op. at 4-5, Gebelein, J. (Del. Super. Nov. 4, 1987), reprinted in Hamann v. State, 515 A.2d 924, 932 (Del. 1989) (“the process of cross examination is the greatest engine for the discovery of truth known to our legal system”).
2.1. Panaro v. J.C. Penney Co., Inc., C.A. No. 01C-02-101JOH, slip op at 6, Herlihy, J. (Del. Super. Jan.11, 2002) (quoting Treharne v. Callahan, 426 F.2d 58, 62 (3rd Cir. 1970)).
3. Mitchell v. Delaware Alcoholic Beverage Control Comm., 193 A.2d 294, 305 (Del. Super. 1963), rev’d on other grounds, 196 A.2d 410 (Del. 1963); A. H. Angerstein, Inc. v. Jankowski, 187 A.2d 81, 86 (Del. Super. 1962).
4. See U.S. Const. am. 6; Del. Const. art. 1, § 7; Wright v. State, 513 A.2d 1310, 1314 (Del. 1986); Van Arsdall v. State, 524 A.2d 3, 6-7 (Del. 1987); Van Arsdall v. State, 486 A.2d 1, 6 (Del. 1984), vacated on other grounds, 475 U.S. 673 (1986); Wintjen v. State, 398 A.2d 780, 782 (Del. 1979); Johnson v. State, 338 A.2d 124, 127 (Del. 1975); State v. Adams, Cr. A. No. N85-l0-01 16T, slip op. at 5, Gebelein, J. (Del. Super. Nov. 4, 1987), reprinted in Hamann v. State, 515 A.2d 924, 932 (Del. 1989).
5. Truman v. Watts, 598 A.2d 713, 719 (Del. Fam. 1991).
6. Lewis v. State, No. 397, 1990, slip op. at 2-3, Christie, J. (Del. Oct. 1, 1991) (ORDER), disposition reported at 604 A.2d 417 (Del. 1991) (TABLE).
7. See § 14:3.
8. A. H. Angerstein, Inc. v. Jankowski, 187 A.2d 81, 86 (Del. Super. 1962).
© 2010 David L. Finger