stating that cross-examination is "a leading and searching inquiry of the witness for further disclosure touching the particular matters detailed by him in his direct examination, and it serves to sift, modify, or explain what has been said, in order to develop new or old facts in a view favorable to the cross-examiner"
How later courts described this case
- stating that cross-examination is "a leading and searching inquiry of the witness for further disclosure touching the particular matters detailed by him in his direct examination, and it serves to sift, modify, or explain what has been said, in order to develop new or old facts in a view favorable to the cross-examiner"
Written by the judges who cited it.
The opinion
DISSENTING OPINION OF
MIZUHA, J.
On her first appearance, the complaining witness testified as to all of the circumstances surrounding her abduction, the use of force by defendants, and her conversations with defendants during the entire evening. There was no testimony with reference to the perpetration of the acts of sexual intercourse upon her by the defendants. She had no knowledge or recollection of same. On the basis of this testimony, which did not establish a prima facie case for *204 rape, the defendants declined to cross-examine.
The second witness for the State was a Dr. West who testified that he had given her a physical examination on the following day which was about 11 hours after the time when the alleged rape occurred. During this examination which took place approximately at noon on July 9, 1959, the doctor found dead spermatozoa in the complaining witness’ vagina and a more than usual reddening of the vaginal area, from which he concluded that she had sexual intercourse with someone prior to the time of his examination and at the most 36 hours prior thereto.
After Dr. West testified, the prosecution called the complaining witness back to the stand. This was objected to by the defendants.
There was no explanation by the prosecution as to why they were recalling Janet Schenck to the stand nor did the trial court inquire as to the reasons for the recall of Janet Schenck. Likewise at the time the complaining witness’ first direct examination was finished, the prosecution did not indicate that they intended to recall Miss Schenck for further testimony.
In a rape trial where the testimony of the complaining witness is crucial, it would be presumed that the trial court would afford defendant full opportunity to exercise his constitutional right of confrontation. But the following occurred at the conclusion of her first examination:
“Q [MR. TITCOMB] Jan, this testimony you have just related to this jury, did that all take place in this jurisdiction, that is, in the City and County of Honolulu, State of Hawaii?
“A Yes, sir.
“MR. TITCOMB: Take the witness.
*********
“MR. FELZER: The defendants Guillermo and Barro require no cross-examination, your Honor.
*205 * * * [Testimony of Dr. Rodney T. West.] * * *
“MR. TITCOMB: Call Janet Sclienck.
“MR. FELZER: I object to the calling of the witness, yonr Honor.
“MR. TITCOMB: This is bordering on the ludicrous, if the Court please, this objection.
“THE COURT: It will be overruled.
“MR. FELZER: Exception.
“MR. CHANG: Your Honor, I make the same objection on behalf of the defendant Canianes.
“THE COURT: Same ruling.
“MR. CHANG: Exception.
“MR. KIMURA: Your Honor, at this time, for the record perhaps the prosecution can inform us as to how many times he intends to call Janet Schenck.
“THE COURT: He may not.
“MR. KIMURA: Very well, your Honor.”
The prosecution did not ask leave of the trial court to withdraw the complaining witness subject to recall at a later time. When the prosecution concluded the examination of the complaining witness, without establishing a prima facie case as admitted by the State in their brief, and without asking leave of the trial court to withdraw the witness subject to recall, there was no necessity of the defendants to assert their basic right when no crime had been established by the complainant’s testimony.
When the State recalled the complaining witness, and the defendant objected, it was incumbent upon the trial judge to inquire of the prosecution as to the necessity of further testimony from the complainant. Without any reasons being presented to the trial court, it was impossible for the defendant to make any specific objection. If the State had informed the trial court that it intended to prove two of the essential elements of the crime of rape, sexual intercourse and lack of consent which were not cov *206 ered in the initial examination, the propriety of recall could have been thoroughly argued. Likewise, if the trial court in the exercise of its discretion saw fit to permit the State to recall the complaining witness for further testimony to establish the crime of rape, the question of cross-examination on earlier testimony of other elements of the crime had to be considered. In view of the peculiar procedure adopted by the prosecutor, it was the duty of the trial court to permit cross-examination on all the testimony of the complainant after the completion of the second examination. Recall of the complaining witness by the State four days later at the conclusion of its case, does not satisfy the minimal constitutional requirements for a fair trial.
The prosecuting attorney sarcastically termed the objection of the defendants to the recall of the complaining witness as “bordering on the ludicrous.” This remark is more appropriate in referring to the procedure followed by the prosecution for the presentation of evidence without any query by the court, and to the abrupt overruling of defendant’s objection.
The complaining witness’ testimony on her second appearance definitely established that some time around midnight or 1 o’clock, July 8,1959, she had sexual intercourse with the seven defendants, without her consent.
After her second direct examination, the following questions were asked by defendant’s counsel on cross-examination :
“Q [MR. FELZER] Miss Schenck, when you told us yesterday something about your background, you said you went to school at Goshen, Indiana?
“A I went to high school at Goshen, Indiana.
“Q And you also testified yesterday that at some time out at the pine stretch, you were talking about various matters with the defendants; is that correct?
*207 “A That’s right, sir.
“Q And that among the things that yon talked about Avas sports and your home life in Indiana, surfing and a few other matters; is that correct?
“A That’s right.”
This was followed by the colloquy which appears in the margin below. 1
Article I, section 11 of the Constitution of the State of Hawaii guarantees to the accused, in all criminal prosecutions, the right “to be confronted with the witnesses against him.” The main and essential purpose of this constitutional right of confrontation is to secure to the defendant the opportunity for cross-examination. “The right to cross-examine a witness is fundamental and accepted as a right basic to our judicial system.” State v. Broohs, 44 Haw. 82, 89 , 352 P.2d 611, 616 .
The object of the constitutional provision is to protect defendants against any adverse testimony during the course of a criminal trial. It is a substantive right of the *208 accused and not a mere privilege to be granted or withheld at the discretion of the trial court which in the exercise of reasonable discretion may limit the scope and extent of cross-examination but it cannot absolutely deny it to one entitled to it. Alford v. United States, 282 U.S. 687 , 51 S. Ct. 218 , 75 L. Ed. 624 ; J. E. Hanger, Inc. v. United States, 160 F.2d 8 ; Lindsey v. United States, 133 F.2d 368 (D.C. Cir. 1942); Heard v. United States, 255 Fed. 829 ; Smith v. State, 200 Ark. 1152 , 143 S.W.2d 190 ; Frady v. State, 212 Ga. 84 , 90 S.E.2d 664 ; People v. Hume, 56 Cal. App. 2d 262 , 132 P.2d 52 ; State v. Warner, 79 Utah 510 , 13 P.2d 317 .
It can hardly be denied that, insofar as the complaining witness’ initial testimony affirmed no sexual acts having been committed upon her, her testimony was innocuous nnd presented no cause for cross-examination. The State admits in its brief “that complainant’s first testimony, unrebutted and unexplained by appellants, was, in itself, as a matter of law, insufficient to warrant conviction of ^appellants * * There was nothing to cross-examine at the conclusion of the first examination because all of the •essential elements of the crime of rape had not been established.
Any rule addressed to restricting the scope of cross-examination has its roots grounded in the promotion of orderly presentation of evidence. 2 Yamashiro v. Costa, 26 Haw. 54 . In the instant case, the rule as applied by the .lower court had the attendant consequence of forcing the ■defendants to conduct piece-meal cross-examination of a single witness upon the theory that the prosecution’s method of presentation of evidence had transformed the *209 complaining witness into two separate persons. 3 It would seem that, from the standpoint of a fair trial and the allowance of full opportunity to cross-examine, the prosecution’s alleged orderliness had become an unfair advantage. Certainly, the real weight of the complaining witness’ initial testimony, for the purpose of cross-examination, could not have become apparent to the defendants until it was buttressed by her affirmation of sexual acts having been committed upon her without her consent.
As it is pointed out in the State’s brief, “complainant’s testimony on her first appearance was limited to facts relating to issues of force and resistance. Complainant on her second appearance limited her testimony solely to matters relating to sexual intercourse and the lack of consent. No reference was made by complainant in her testimony on her second appearance to matters relating to resistance and the use of force.” Inasmuch as force, resistance, sexual intercourse, and lack of consent are all essential elements to be considered in the crime of rape, I cannot agree with the conclusion of the court’s opinion that the ruling of the trial court was not prejudicial, on the ground defendants may possibly have reached the issues of force and resistance, through cross-examination on the testimony in the second direct examination.
This conclusion fails to consider the principle purpose of ci’oss-examination. “The office of cross-examination is to test the truth of statements of a witness made on direct examination. Cross-examination serves as a safeguard to combat unreliable testimony, providing a means for dis *210 crediting a witness’ testimony, and is in the nature of an attack on his truth or accuracy. The purpose of cross-examination, however, is not limited to bringing out a falsehood, since it is also a leading and searching inquiry of the witness for further disclosure touching the particular matters detailed by him in his direct examination, and it serves to sift, modify, or explain what has been said, in order to develop new or old facts in a view favorable to the cross-examiner. The object of cross-examination, therefore, is to weaken or disprove the case of one’s adversary, and break down his testimony in chief, test the recollection, veracity, accuracy, honesty, and bias or prejudice of the .witness, his source of information, his motives, interest, and memory, and exhibit the improbabilities of his testimony.” 98 C.J.S., Witnesses, § 372. The ruling made it •impossible to impeach the testimony of the prosecutrix during her first examination.
It is difficult to follow the argument of the majority opinion which is unable to find prejudice “because it is not shown that the cross-examination was in fact limited by the ruling requiring counsel to confine themselves to the prosecutrix’s testimony on the second occasion.” Defendants had no obligation to show that the denial of cross-examination on the first examination prejudiced them. As stated by Mr. Justice Stone:
“* * * prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. Tla-Koo-Yel-Lee v. United States, supra; King v. United States, supra; People v. Moore, 96 App. Div. 56 , affirmed without opinion, 181 N.Y. 524 ; cf. People v. Becker, 210 N.Y. 274 . To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts *211 tending to discredit tlie testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. Nailor v. Williams, 8 Wall. 107, 109 ; see People v. Stevenson, 103 Cal. App. 82 ; cf. Brasfield v. United States, 272 U.S. 448 . In this respect a summary denial of the right of cross-examination is distinguishable from the erroneous admission of harmless testimony. Nailor v. Williams, supra.” Alford v. United States, 282 U.S. at 692 .
The first direct examination of the complaining witness which consists of 35 pages of testimony was concluded at 11:30 a.m., September 16, 1959. The second direct examination which consists of 5 pages of testimony commenced at approximately 3:25 p.m., September 16, 1959. Cross-examination which was limited to this second direct examination was concluded at 10:14 a.m., September 17, 1959.
At the conclusion of the State’s case four days later on September 21, 1959, the prosecuting attorney, apparently recognizing that the court had committed error earlier in denying defendants the right to cross-examine the complaining witness on her testimony in the first direct examination, offered her for cross-examination by the defendants as to her first direct examination. 4
The complaining witness was recalled to the stand by the State, and then followed the colloquy which is quoted in the margin below. 5
*212 I cannot agree with the majority that the trial court’s error in denying to defendants their constitutional right of confrontation can be cured, when an opportunity is afforded defendants to cross-examine four days after the conclusion of the prosecutrix’s examination. Cross-examination of the complaining witness in a rape case is ineffective four days later, for the testimony on which the witness would be cross-examined is no longer fresh in the memory of the members of the jury.
The court’s opinion rests upon the failure to properly evaluate the basis for our constitutional right of confrontation in criminal cases. Availability of this constitutional right of cross-examination immediately after the conclusion of the witness’ testimony has been the practice in all of our trial courts in this country. If the practice were different, then the procedure in our trial courts would have the cross-examination begin on State witnesses only after the direct examination of all State witnesses have been *213 concluded. See 6 Wigmore, Evidence, §§ 1882-84.
This court, in accepting the proposition that the denial of the basic constitutional right of confrontation can be cured in the manner in which it was done in this case, now permits the State and our trial courts to adopt the peculiar type of procedure followed in this case without fear of reversal. The error can always be cured by the subsequent recall of the complaining witness for cross-examination at the conclusion of the State’s case, when cross-examination would be ineffective.
In State v. Howard, 35 S.C. 197 , 14 S.E. 481 , it was held that error of the trial court in not allowing a defendant to cross-examine State witnesses is not cured by the fact that the defendant subsequently calls the witnesses as his own and examines them on his own behalf.
In State v. Hollenbeck, 67 Vt. 34 , 30 Atl. 696 , in a trial for rape, where a question was erroneously excluded on cross-examination of the complaining witness, it was held that “The fact that the state, later in the trial called the prosecutrix as a witness upon the same subject, and the *214 respondent had an opportunity to cross-examine, and declined to do so,” does not cure the error.
In People v. Becker, 210 N.Y. 274 , 104 N.E. 396 , where the court improperly and unduly restricted the cross-examination of the state’s main witness, the error was not cured by the fact that he was later recalled for further questions, and then tendered to the defendant “for further and complete cross-examination,” which the accused declined.
In State v. Howard, supra; State v. Hollenbeck, supra; and People v. Becker, supra, the error committed by the court in excluding the particular question in cross-examination was the denial of a basic constitutional right afforded all persons in criminal prosecutions and as the courts have stated in the above cited eases, the error cannot be cured even though defendants were afforded an opportunity later to fully cross-examine the witness on the subject which was previously excluded.
In J. E. Hanger, Inc. v. United States, supra, the District Court denied defendant the right to cross-examine a witness who testified for the government. The colloquy on the subject which is quoted in the margin below 6 indicates the District Court did inform defense counsel on several occasions that the court will permit cross-examination *215 later, if defense counsel saw fit to do so. Likewise, the District Court informed counsel that defendant could call the witness as their own witness. It is evident that the offer of the trial court to permit cross-examination later was not accepted by the defendant who assigned as error this denial of the right of cross-examination. In reversing the judgment, the court stated that “cross-examination is a matter of right and not a mere privilege.” The offer of the District Court to permit cross-examination of the witness later in the trial did not merit discussion by the court.
As stated in People v. Davey, 179 N.Y. 345, 347 , 72 N.E. 244, 245 , a rape case, “* * * it has come to be one of the accepted maxims of our jurisprudence that appellate courts will not be astute to find mere technical errors upon which to reverse judgments. There are cases, however, in which apparently technical errors may be so prejudicial as to produce the gravest injustice. This may be particularly true of a case in which a defendant, accused of an abhorrent and detestable crime, finds himself confronted at the very threshold of the court room, with the subtle, pervasive and almost ineradicable prejudice which the bare charge of such a crime may engender against him, *216 in the minds of those who are to pass upon his guilt or innocence.* * *”
The procedure adopted by the prosecutor in the piecemeal presentation of the testimony of the complaining witness and the ruling of the trial court in restricting cross-examination of the prosecutrix only on what she has testified in the second direct examination, resulted in a definite denial of the defendants’ constitutional right of confrontation and the right to a fair trial. The judgment of conviction of all the defendants should be reversed and a new trial ordered so that they may be tided in accordance with the basic principles of constitutional law.
“MR. TITCOMB: I object, if the Court please, on the grounds that this is improper cross-examination.
“THE COURT: He is merely recapitulating what was said.
“MR. FELZER: I am laying the background, your Honor.
“MR. TITCOMB: May I be heard, if the Court please? If the court and counsel will recall, the witness was offered in direct yesterday and turned over for cross-examination, at which time they waived their right to cross-examine her on that portion of her testimony when she testified as to Ala Moana and the pine or the fir stretch. She was then called as a witness and testified as to no sexual encounters during July 5th, 6th, 7th, 8th and 9th; she was limited to that testimony in direct. If they are to cross-examine her now, they cross-examine her as to her testimony at the second time she took the stand.
“THE COURT: That’s correct.
*********
“THE COURT: I will rule that your cross-examination on her testimony on her first appearance is waived and that you may now cross-examine her only on what she has testified to upon being recaUed.
“MR. FELZER: I take exception to the court’s ruling and I feel that it is entirely contrary to the laws that exist today, your Honor.
“MR. NAMAKA: I make that same motion, your Honor.
“MR. KIMURA: I make the same, your Honor.
“MR. CHANG: I make the same for Canianes, your Honor.”
For a thorough discussion on the merits of the various rules governing the scope of cross-examination, see McCormick, The Scope and Art of Cross-Examination, 47 Nw. U.L. Rev. 177.
The trial court erroneously accepted prosecutor’s argument: “* * * The court recalls and the counsel recalls that the State presented its case in an orderly fashion. We did not go into her knowledge, or lack of same of intercourse until the doctor testified and established that she had had sexual intercourse, so she was not called because we inadvertently omitted to ask her certain questions. She is actually the State’s third witness.”
“MB.. TITCOMB : If the Court please, I know it is a quarter to 11. The State has not contemplated calling any' other witness. However, I’m quite willing to recall Janet Schenck to the witness stand and make her available for purposes of cross-examination to defense counsels if they choose.
“THE OOUBT: That is, as to her testimony on her first appearance?”
“ME. TITCOMB: Miss Schenck, you are still under oath.
“THE WITNESS: Tes, sir.
“MB. EELZEB: If the Court please, it’s with much regret that I must at this time, on behalf of certain defendants, move that the trial *212 judge disqualify himself on the ground of bias and prejudice in entertaining the offer of the prosecution to return Janet Sehenck to the witness stand contrary to the court’s own ruling that we had waived the right to cross-examine the witness on all of her direct testimony.
“THE COURT: It will be denied.
“MR. FELZER: I take exception to that, your Honor.
“MR. KIMURA: All three of my defendants make the same motion.
“THE COURT: Same ruling.
“MR. TITCOMB: May I state for the record that the State felt that it would be imminently fair to present this witness for their examination.
“THE COURT: You have perfect right to do so.
“MR. FELZER: In that respect, your Honor, we feel that it isn’t the prosecution who sets the rules of court and procedure.
“THE COURT: The ruling has been made.
“MR. FELZER: I take exception, your Honor. In the absence of any change in circumstances, your Honor, we feel that there is no advantage of cross-examining the witness at this time because it is out of context with — ■
“MR. TITCOMB: Just a minute. You just take your right or you waive it.
“MR. FELZER: You’re not telling me what to do, Mr. Titeomb.
“MR. TITCOMB: I don’t want any 4th of July speeches before this jury.
“THE COURT: If there is anything further to be said, I think it *213 might be said outside the presence of the jury. Do you wish to avail yourself of the privilege of cross-examination?
“MR. EELZER: No, your Honor.
“THE COURT: How about you, Mr. Kimura ?
“MR. KIMURA: No cross-examination, your Honor.
“MR. NAMAKA: If the Court please, the defendants didn’t call Miss Schenek as a witness. We are not waiving the right to cross-examine her but at this time we want to reserve any right we have to examine her.
“THE COURT: Mr. Chang?
“MR. CHANG: Your Honor, I feel that the right to cross-examination at the appropriate time was not availed to the defendant Canianes; therefore, it would be prejudicial at this time to cross-examine her.
“THE COURT: You do not wish to cross-examine her?
“MR. CHANG: Yes, sir.
“THE COURT: That’s all. You’re excused.
(The witness was excused.)
“MR. EELZER: I feel, your Honor, that taking the opportunity to cross-examine out of position is prejudicial to the defendants, your Honor, because it’s lost its probative value when it comes forth at this time.”
“ ‘The Court: You may go ahead. (Addressing government counsel.) Where is your man that got those instruments?
“ ‘Mr. Godin: I don’t see him in court.
“‘The Court: Have him here. Let’s excuse this witness (Dellinger) now. He won’t be helpful to you.
“ ‘Mr. Godin: All right. We will excuse this witness.
“ ‘Mr. Hardy (counsel for defendants) : May I ask him some questions ?
“ ‘The Court: No, sir. You may later, if you see fit.
“ ‘Mr. Hardy: I would like to cross-examine him.
“ ‘The Court: I am not going to let you do it at this time. Have your other witness here and proceed with the other witnesses. I will let you do it later.
“ ‘Mr. Hardy: May we—
“ ‘The Court: Now, Mr. Hardy, you have an objection. You won’t complain about an ample opportunity to examine as soon as we get through here, but this man Dellinger has testified to very little on his *215 direct. He identified three or four — added a little to the further identification — and I am not going to waste any time on cross-examination. You will have to take your exception.
“ ‘Call your next witness.
“ ‘Mr. Godin: I would like to recall Mr. Feller for just one question: “ ‘The Court: All right.
“ ‘Mr. Hardy: If Your Honor pleases, may I make an offer for the cross-examination of this witness?
“ ‘The Court: No; when we get through, if I have overlooked giving you a fair trial, you call it to my attention. But we are not going to waste any time. That man didn’t help the case a bit. If you want to put him on as your witness, you can put him on at any time.
“ ‘Mr. Hardy: If Your Honor pleases, I think he could help all right. I think he could help my case.
“ ‘The Court: Put him on then, at the proper time.
“ ‘Mr. Hardy: I have the right to cross examine, do I not?
“ ‘The Court: You do not now, and it is your exception.’ ” J. E. Hanger, Inc. v. United States, 160 F.2d at 9-10, n.2 .