GAVEL GAMUTÂ By Jim Redwine
CROSS EXAMINATION, THE ENGINE OF TRUTH
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 accusersâ€, 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.Â
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