James M. Redwine

Indiana Constitution

Cross Examination, The Engine Of Truth

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Freedom of Speech is a good thing. That includes the “right” to lie and disparage anonymously. Cross examination is recognized in legal matters as the greatest engine of truth. It is just as much a Constitutional Right as Freedom of Speech. The First Amendment to the United States Constitution protects one’s right to speak and the Sixth Amendment protects the right to “confront one’s accusers”, i.e. to cross examine them, in criminal cases. Indiana’s Constitution guarantees both Freedom of Speech and “Face to Face” cross examination. It is clear that those who founded both our state and our country considered both rights sacred.

However, as with much of life and law the devil is in the details when particular situations that implicate conflicting Constitutional Rights must be addressed. If CNN and MSNBC want to proclaim President Trump a pariah while FOX News proclaims him a messiah both positions are constitutionally protected even if they might cite to anonymous sources to do so. So, how do those who disagree with either position exercise the right of cross examination. Well, they don’t. Private citizens and non-governmental entities are perfectly within their rights to cite or even make up anonymous sources.

When the government wants to use Confidential Informants in criminal cases to seek an arrest or search warrant, the police officer or Prosecuting Attorney must, under oath, set forth facts whereby the reviewing Judge or Magistrate can determine a C.I.’s information is credible. Such things as the ability and opportunity to observe are essential considerations. And, even if the Judge grants the request for a warrant, when a case is filed the Court has the authority to order the disclosure of a C.I.’s identity so that a person who is charged may cross examine the C.I. or have the case thrown out.

This protection of the truth is not available in the civil area nor should it be. If a media outlet wants to lie or make up sources the outlet might be sued but the government should not be allowed to squelch free speech. On the other hand, those of us who are inundated with a constant barrage of personal invective described by the media as “news” owe it to ourselves and our country to demand that news organizations disclose “anonymous sources” or, at least thoroughly vet them and set out the vetting process along with the source’s bona fides so we can judge for ourselves.

Anonymous Sources

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Law enforcement agencies often rely on Confidential Informants to investigate criminal matters. Many times crimes cannot be solved if those who commit the crimes or those they voluntarily tell about the crimes do not talk to the police. It is a truism that it is hard to catch a fish that does not open its mouth.

As long as the police are simply investigating a crime there is no reason why “anonymous sources” should not be mined for information. However, once a law enforcement agency decides to ask a judge for permission to arrest someone or search someone’s home or business, the basis for the judge to determine probable cause must comport with Constitutional standards. And there are both the U.S. Constitution and the Indiana Constitution to consider.

No longer can “anonymous sources” be cited as a basis for probable cause but Confidential Informants may be used as long as the police support the C.I.’s ability to actually know the evidence attributed to them by setting out the facts establishing the C.I.’s ability and opportunity to observe or know of the crime in question.

And if the case goes to court the C.I.’s identity may be ordered disclosed by a judge. In other words, a C.I. must be an actual person who truly had direct knowledge of the crime and the involvement of the defendant who was arrested or whose premises were searched. In my experience as a prosecuting attorney for seven years, a practicing attorney, and a judge for thirty-eight years, when a law enforcement officer cites to a Confidential Informant such a person has almost always been shown to actually exist when required to be divulged by a Court.

Unfortunately, there have been a very few times that a C.I. was created by an officer who let the “ends justify the means”. When such failures occur we all lose because the system of justice is not just. Of course, these bad acts are only disclosed because a court of law can be asked to force the police to disclose the C.I. If there were no oversight of these activities, people could be unjustly convicted and we would all lose because we would lose faith in the legal system. Then even when the officers acted strictly in compliance with the Constitution we might not believe them.

That is the danger of “anonymous sources”. If there is no mechanism to determine if such people truly exist or are simply the figment of a writer’s desire to advance an agenda, the public may lose faith in all reports.