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The Right to Confront and Cross-Examine Witnesses

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Included among the Bush administration’s new rules for the trials of suspected terrorists captured abroad is the right of the accused (or his attorney) to confront and cross-examine witnesses, a right guaranteed to Americans in criminal prosecutions by the Sixth Amendment.

But the Bush administration is being disingenuous in the granting of that particular right to the accused. Why? Because it steadfastly continues to hold that hearsay evidence will be admissible at trial.

What is hearsay? It is a statement made out of court and not under oath that is being repeated by another person on the witness stand. The reason that U.S. courts will not permit hearsay to be used in a criminal case is that it denies the accused the opportunity to confront and cross-examine the person who actually made the statement.

For example, let’s assume that Smith tells Jones, “I saw the defendant at a meeting of terrorists.” Jones takes the stand, and says, “Smith told me that he saw the defendant at a meeting of terrorists.” The accused will be able to cross-examine Jones, but how effective is that? All he can question is whether in fact Smith made the statement to Jones. The real damaging evidence is the statement by Smith, and Smith is not there to be cross-examined as to the truthfulness of his allegation.

Thus, the use of the hearsay in the trial denies the accused the opportunity to cross-examine Smith. That’s why the Sixth Amendment (and fundamental principles of due process of law) requires the government to put Smith on the stand to make his statement, after which he and his testimony can be subjected to cross-examination.

At the risk of belaboring the obvious, there is one — and only one — reason that Bush has elected to hold his military trials in Cuba rather than the United States—he doesn’t want to be constrained by the U.S. Constitution and its Bill of Rights in the prosecution of criminal suspects. Perhaps it’s appropriate that Bush has elected to hold his military tribunals in Cuba, given the enormous contempt that the Castro regime also has for such important principles as constitutional restraints and civil liberties.

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    Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.