L. 94149, 1(12), substituted a semicolon for the colon in catchline. After a defendant or a defence witness has given evidence-in-chief, the . by s 35(3)(i) of the Constitution and by s 166 of the Criminal Preparation. Procedure Act on the grounds that the accuseds right to 1318, 20 L.Ed.2d 255 (1968). We are delighted to have helped over 75,000 clients get a consult with a verified lawyer for their legal issues. Cross-examination is the legal process of interrogating a witness that has been called to testify by the opposing party in a legal proceeding. originates from the audi alteram partem rule. The The most notable exception is when the accuser placed a 911 call seeking real-time help. 446. Give reasons and also refer to case law, if any, on the point? v Manqaba 2005 (2) SACR 489 (W) was a minimum sentence hearing in defendant be excused from further attendance and that the evidence Subdivision (b)(3). This was done to facilitate additions to Rules 803 and 804. The Committee amended the Rule to reflect these policy determinations. The title of the rule was changed to Forfeiture by wrongdoing. The word who in line 24 was changed to that to indicate that the rule is potentially applicable against the government. on the remainder of the Khumalo J came to the conclusion that if a witness dies before cross-examination commences, his evidence is untested and must be regarded as pro non scripto (at 531e). Subdivision (b)(6). convicted of Rule 804(b)(6) has been renumbered to fill a gap left when the original Rule 804(b)(5) was transferred to Rule 807. Chauvin's defense attorney, Eric Nelson, did not cross-examine all the young witnesses, but did focus on one of the teenagers as he tried to raise what he called inconsistencies in her. (d) witness's presence cannot be obtained without any amount of delay or expense which, under the circumstance of the case, the Court considers unreasonable. The exception discards the common law limitation and expands to the full logical limit. > What suffices to be able to use the testimony of a witness as evidence is the opportunity to cross-examine and there need not be an actual cross-examination defendants attorney brought 806; Mar. exclusion has nothing to do with the probative That can come in and keep the case alive. where an accuseds right to cross-examine a witness is See also 5 Wigmore 1389. Where a party has more than one legal representative, only one of them is allowed to cross-examine a particular witness. See Gichner v. Antonio Triano Tile and Marble Co., 410 F.2d 238 (D.C. Cir. GeorgiaCriminal Law "Hearsay which is inadmissible because it does not satisfy the provisions of the former testimony rule will still be admissible if it satisfies the provisions of rule 1.330.". The court rules that this is enough to satisfy the goals of the . the evidence of the witness who had denied, 449 U.S. 840 (1980); United States v. Carlson, 547 F.2d 1346, 135859 (8th Cir. Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. If the party that called the witness sees the need to examine the witness again after cross-examination, they may examine the witness one more time. Mattox v. United States, 156 U.S. 237, 15 S.Ct. of whom cross-examination has not been completed McCormick 246, pp. Moshidi J referred to various tests that had been propounded in Technique 3: So your answer to my question is "Yes.". The purpose of cross-examination is to create doubt about the truthfulness of the witness's testimony, especially as it applies to the incidents that are at issue in the case. Professor Falknor concluded that, if a dying declaration untested by cross-examination is constitutionally admissible, former testimony tested by the cross-examination of one similarly situated does not offend against confrontation. considering the cases referred to above as well as similar cases in Antoine's wife did not have the opportunity to question Antoine, however, "Florida Rule of Civil Procedure 1.330(a) provides that: [a]t the trialany part or all of a deposition may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice of it so far as admissible under the rules of evidence applied as though the witness were then present and testifying in accordance with any of the following provisions:.(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead . (Pub. He went on to conclude that the irregularity was of such a nature The contents of Rule 803(24) and Rule 804(b)(5) have been combined and transferred to a new Rule 807. Id. The Conference adopts the Senate amendment with an amendment that renumbers this subsection and provides that a party intending to request the court to use a statement under this provision must notify any adverse party of this intention as well as of the particulars of the statement, including the name and address of the declarant. case was closed without leading any further evidence. None of these situations would seem to warrant this needless, impractical and highly restrictive complication. excluded on one of two bases. After weekend, the defendant was absent. (3) The position that a claimed lack of memory by the witness of the subject matter of his statement constitutes unavailability likewise finds support in the cases, though not without dissent. See also the provisions on use of depositions in Rule 32(a)(3) of the Federal Rules of Civil Procedure and Rule 15(e) of the Federal Rules of Criminal Procedure. Counsel for the accused had commenced his cross-examination of the The use of this website to ask questions or receive answers does not create an attorneyclient relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. You should also have an outline of what you expect opposing counsel to ask. a) and b) -- No the legal heirs will not be a prt of the cross examination on behalf of the late defense witness. 337, 39 L.Ed. This is existing law. At common law the unavailability requirement was evolved in connection with particular hearsay exceptions rather than along general lines. McCormick 254, pp. Dec. 1, 2011. 90.804(2)(a). In view of the conflicting case law construing pecuniary or proprietary interests narrowly so as to exclude, e.g., tort cases, this deletion could be misconstrued. 34 of the Constitution guarantees a litigant the right to a fair that is stated below applies equally to civil cases. his February 28, 2023 at 1:26 p.m. EST. Provisions of the same tenor will be found in Uniform Rule 63(3)(b); California Evidence Code 12901292; Kansas Code of Civil Procedure 60460(c)(2); New Jersey Evidence Rule 63(3). Rule 804(b)(4) as submitted by the Court (now Rule 804(b)(3) in the bill) provided as follows: Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. Unavailability is not limited to death. Oct. 1, 1987; Pub. It is now well settled that where a witness dies after his examination in chief and before cross-examination would depend upon the fact of each case. However, no reason is apparent for making distinctions as to what satisfies unavailability for the different exceptions. If the conditions otherwise constituting unavailability result from the procurement or wrongdoing of the proponent of the statement, the requirement is not satisfied. 1968). it may have affected the outcome of the case. The accuseds conviction was set aside. Every circuit that has resolved the question has recognized the principle of forfeiture by misconduct, although the tests for determining whether there is a forfeiture have varied. One possibility is to proceed somewhat along the line of an adoptive admission, i.e. The other is simply to rule it inadmissible. The Committee settled upon the language unless corroborating circumstances clearly indicate the trustworthiness of the statement as affording a proper standard and degree of discretion. Relationship is reciprocal. party has a right to adduce and challenge evidence. is affected by the fact that he or she could not be cross-examined. weekend, he had suffered Last 30 Days. Even so, every detail necessary for effective examination of witnesses cannot be found in a single source.1 Such unfound details are practical skills and require years of learning, practice, and experience. Cross-examination grew tense at times as the prosecution pressed Fowler on the many contributing factors he suggested and on the delay in emergency care after Floyd went into cardiac arrest.. Notes of Committee on the Judiciary, Senate Report No. On resumption of 1965). S The words Transferred to Rule 807 were substituted for Abrogated.. If a witness had died before cross examination, then the statement of witness is invalid in eyes of law. Give reasons and also refer to case law, if any, on the point? Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information. (2) Statement Under the Belief of Imminent Death. Those additional references were accordingly deleted. Article. had commenced, then the opposing party may, if he or she considers cross-examination of the complainant concerning the contents Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only. To know more, see our, Law of Evidence Mains Questions Series Part-I, Law of Evidence Mains Questions Series Part-II, Law of Evidence Mains Questions Series Part-III, Law of Evidence Mains Questions Series Part-IV, Law of Evidence Mains Questions Series Part-V, Law of Evidence Mains Questions Series Part-VI, Law of Evidence Mains Questions Series Part-VII, Law of Evidence Mains Questions Series Part-VIII, Law of Evidence Mains Questions Series Part-IX, Law of Evidence Mains Questions Series Part-X. It is a J came to the conclusion that the failure to allow cross-examination defence then applied to recall L for the purposes of 4:36 p.m. State cross-examines John . whose evidence is prejudicial or potentially prejudicial to him or of the right of an accused person to adduce and challenge In each instance the question resolves itself into whether fairness allows imposing, upon the party against whom now offered, the handling of the witness on the earlier occasion. It would follow that, if the probative 897 (Q.B. that the purposes of cross-examination The internet is not a lawyer and neither are you.Talk to a real lawyer about your legal issue. See United States v. Dovico, 380 F.2d 325, 327nn.2,4 (2nd Cir. At given and ignored for the determination of the trial. no probative value should Whether it is because The Bank of Montreal v. Estate of Antoine. For comparable provisions, see Uniform Rule 63 (23), (24), (25); California Evidence Code 1310, 1311; Kansas Code of Civil Procedure 60460(u), (v), (w); New Jersey Evidence Rules 63(23), 63(24), 63(25). Defendant Alex Murdaugh cries as the shooting injuries his family suffered are described in detail during his double murder trial at the Colleton County Courthouse, Tuesday, Feb. 28, 2023, in Walterboro, S.C. Lawyers, Answer Questions & Get Points The amendments are technical. Khumalo J excluded the time of the witnesss Hileman v. Northwest Engineering Co., 346 F.2d 668 (6th Cir. The general common law requirement that a declaration in this area must have been made ante litem motam has been dropped, as bearing more appropriately on weight than admissibility. on his right to a fair trial guaranteed by the Constitution. McCormick 234, 257, 297; Uniform Rule 62(7)(c); California Evidence Code 240(a)(3); Kansas Code of Civil Procedure 60459(g)(3); New Jersey Evidence Rule 62(6)(c). The Conference adopts the Senate amendment. For these reasons, the committee deleted the House amendment. Where, however, the proponent of the statement, with knowledge of the existence of the statement, fails to confront the declarant with the statement at the taking of the deposition, then the proponent should not, in fairness, be permitted to treat the declarant as unavailable simply because the declarant was not amendable to process compelling his attendance at trial. Consequently, it amended the provision to limit their admissibility in criminal cases to homicide prosecutions, where exceptional need for the evidence is present. Changes Made After Publication and Comments. Back to top Evidence of witnesses - general rule 32.2 (1) The general rule is that any fact which needs to be proved by the evidence of. The state wrapped up its cross-examination of Murdaugh Friday afternoon, leaving the remaining two defense witnesses for Monday morning. be no fair trial without the exercise of the right to The term unavailable is defined in subdivision (a). Id., 1487. in civil next witness should be kept. As to firsthand knowledge on the part of hearsay declarants, see the introductory portion of the Advisory Committee's Note to Rule 803. Get expert legal advice from multiple lawyers within a few hours, Witness died before cross examination how will the case proceed, LawRato.com and the LawRato Logo are registered trademarks of PAPA Consultancy Pvt. Since identity of issues is significant only in that it bears on motive and interest in developing fully the testimony of the witness, expressing the matter in the latter terms is preferable. The common law required that the interest declared against be pecuniary or proprietary but within this limitation demonstrated striking ingenuity in discovering an against-interest aspect. Finally, about 18 This is called "direct examination." Moreover, the deposition procedures of the Civil Rules and Criminal Rules are only imperfectly adapted to implementing the amendment. encompasses the right to cross-examine witnesses. 0.2590, I want leagal advice on case related to blackmail, Asking money for issuing the degree certificate. (b)(3). 548549. litigant in a civil case to a fair public hearing in terms of s 34 of in casu would prejudice the accused since there will be kindly give me some legal advice, Connect with top Criminal lawyers for your specific issue, The information provided on LawRato.com is provided AS IS, subject to. Mahi Manchanda Cross-examination questions are usually the opposite of direct examination questions. The Committee considered that it is generally unfair to impose upon the party against whom the hearsay evidence is being offered responsibility for the manner in which the witness was previously handled by another party. It is therefore a constitutional right. litigant in both civil and criminal law proceedings has a right to (1) If the party against whom now offered is the one against whom the testimony was offered previously, no unfairness is apparent in requiring him to accept his own prior conduct of cross-examination or decision not to cross-examine. 4.Where the counsel indicates that the witness is not cross examined to save time. The committee decided to delete this provision because the basic approach of the rules is to avoid codifying, or attempting to codify, constitutional evidentiary principles, such as the fifth amendment's right against self-incrimination and, here, the sixth amendment's right of confrontation. The House bill did not refer specifically to civil liability and to rendering invalid a claim against another. Question3. the trial in the regional court, the magistrate refused to allow 489490; 5 Wigmore 1388. McCormick 255, p. 551. died during the trial. Advocate Rajagopalan 4.6| 100+ user ratings Banjara Hills, Hyderabad CONTACT NOW defence. magistrate ", Get the legal help & representation from over 10,000 lawyers across 700 cities in India, Post your question for free and get response from experienced lawyers within 48 hours, Contact and get legal assistance from our lawyer network for your specific matter, Apply for Free Legal AidA Pro-bono initiative of LawRato in association with NALSA, deposition of witness not cross examined by other party and subsequently the witness died. 52120, or has expanded the area of offenses to include abortions, 5 Wigmore 1432, p. 224, n. 4. researcher at Legal Aid South Africa in Johannesburg. 908.045(4).]. The first is that it is simply Rule 611(b) allows cross-examination "on any matter relevant to any issue in the case, including credibility." The North Carolina courts have consistently held that cross-examination may serve four purposes: to expand on the details offered on direct examination; to develop new or A few days after the deposition was postponed, Antoine died. for discharge in terms of s 174 of the can This serves two purposes: First, it may relax and lull a witness into admitting damaging evidence either then . These Top 10 Books on Cross Examination will teach you how to effectively elicit facts that are favorable to your case from every credible witness you examine, or alternatively, demonstrate the witness is so biased they will not admit even the most obvious facts that support your case. The wrongdoing need not consist of a criminal act. Being dead is as unavailable as you can get so like Mr. Stone stated above, the court could admit otherwise inadmissible hearsay into evidence. People v. Spriggs, 60 Cal.2d 868, 36 Cal.Rptr. Item (ii)[(B)] deals with declarations concerning the history of another person. In a trial of Sessions case, or a Civil Case including the Motor Accidents Claims Cases, the cross examination of a witness is considered as the major element in a trial. Although the committee recognizes considerable merit to the rule submitted by the Supreme Court, a position which has been advocated by many scholars and judges, we have concluded that the difference between the two versions is not great and we accept the House amendment. partem rule, a party has the right to be afforded an opportunity The House amended the rule to apply only to a party's predecessor in interest. At the end of the states case, counsel for the accused The weight or probative value attached to such evidence would depend upon the facts and circumstances of each case. The rule departs to the extent of allowing substitution of one with the right and opportunity to develop the testimony with similar motive and interest. The circumstances of the matter are: That the defendant witness had tendered his examination in chief before the court in a civil suit but he died before his cross examination could be done and his legal heirs have been substituted. it often happens that trials are protracted and postponed for long But if not so far advanced, substantially to be complete, it must be rejected. Thereafter, the defendant partly cross-examined the said witness and the proceedings were deferred for further cross-examination. Whether such evidence should be taken or not would depend upon the fact as to how far and to what extent the deposition has been made. evidence, no reasonable man might convict the The Senate amendment to subsection (b)(3) provides that a statement is against interest and not excluded by the hearsay rule when the declarant is unavailable as a witness, if the statement tends to subject a person to civil or criminal liability or renders invalid a claim by him against another. In any event, deposition procedures are available to those who wish to resort to them. As a further assurance of fairness in thrusting upon a party the prior handling of the witness, the common law also insisted upon identity of parties, deviating only to the extent of allowing substitution of successors in a narrowly construed privity. No purpose is served unless the deposition, if taken, may be used in evidence. The definition of unavailability implements the division of hearsay exceptions into two categories by Rules 803 and 804(b). The House bill provides in subsection (a)(5) that the party who desires to use the statement must be unable to procure the declarant's attendance by process or other reasonable means. (a) Criteria for Being Unavailable. Ct. 959, 959-960(1992). In addition, and contrary to the common law, declarant qualifies by virtue of intimate association with the family. The only missing one of the ideal conditions for the giving of testimony is the presence of trier and opponent (demeanor evidence). A unitary approach to declarations against penal interest assures both the prosecution and the accused that the Rule will not be abused and that only reliable hearsay statements will be admitted under the exception. Some See, e.g., United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. (1973 supp.) This is done by means of questions and in accordance with the following working rules: - "Come to the point as soon as possible". The Fourth District analyzed analogous caselaw from around the country and held that the partial deposition was improperly excluded. A question arose before the Calcutta High Court in Dever Park Builders Pvt Ltd v. Madhuri Jalan, AIR 2002 Cal 281 as to the admissibility of the evidence of a person where cross-examination could not be finished. Can a non agriculturist buy a agriculture land at, Grandson's rights on grandfather's property, Can landlord stop water and electric while not get. not allowed. witness in criminal r civil case. In Murphy on evidence it is stated: It seems that where a witness, who has given evidence in chief, becomes unavailable to be cross-examined, his evidence in chief remains admissible, but is unlikely to carry very much weight. This position is supported by modern decisions. a nervous breakdown. It is something far more abstract, more subtle, more artistic. [Uniform rule 63(10); Kan. Stat. Rule 803 supra, is based upon the assumption that a hearsay statement falling within one of its exceptions possesses qualities which justify the conclusion that whether the declarant is available or unavailable is not a relevant factor in determining admissibility. S v Mgudu 2008 (1) SACR 71 (N) the state, during the trial in (5) [Other Exceptions .] When a witness dies in order for hearsay to be admitted under the residual exception, requirements must be satisfied: the statement must concern a material fact, must be probative, and the interest of justice will be served by admission of the statement. Comparable provisions are found in Uniform Rule 63 (5); California Evidence Code 1242; Kansas Code of Civil Procedure 60460(e); New Jersey Evidence Rule 63(5). The circumstantial guaranty of reliability for declarations against interest is the assumption that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true. Thus, in a civil case, a party can put its own case before the jury by the cross-examination of witnesses called by the opposing party. 931277, set out as a note under rule 803 of these rules. The instant rule proceeds upon a different theory: hearsay which admittedly is not equal in quality to testimony of the declarant on the stand may nevertheless be admitted if the declarant is unavailable and if his statement meets a specified standard. There is the decision of the Madras High Court in Maharaja of Kolhapur v. S Sundaram Ayyar, [AIR 1925 Mad 497] where the court held that where a witness was examined-in-chief and there was hardly any cross-examination and before it could be concluded, the witness died and the unfinished testimony of the deceased witness was not rejected or held to be inadmissible. The cross examiner should know the facts of the case well and know what information to get from the witness [9]. 282, 189 S.W.2d 284 (1945); Band's Refuse Removal, Inc. v. Fairlawn Borough, 62 N.J.Super. A number of courts have applied the corroborating circumstances requirement to declarations against penal interest offered by the prosecution, even though the text of the Rule did not so provide. Codification of a constitutional principle is unnecessary and, where the principle is under development, often unwise. Where the witness has notice beforehand. regarded as pro non scripto (at 531e). Because more than 90% of cases end before trial, . This has been laid down as re-examination in Section 137 of the Indian Evidence Act, 1872. Griffin asks if Kinsey reviewed Dr. Riemer's findings. L. 94149, 1(13), substituted admissible for admissable. Cross-Examination of the Defendant The defendant is the classic "interested witness," because he or she is obviously biased towards obtaining a favorable outcome of the case. But the credibility of the witness who relates the statement is not a proper factor for the court to consider in assessing corroborating circumstances. Attorneys can learn how to control the outcome with careful preparation, calculated strategy, effective skills, and a disciplined demeanor. Question2. Give reasons and also refer to case law, if any, on the point?] See Moody v. Another decision was that of the Allahabad High Court in Ahmad Ali v. Joti Pd, AIR 1944 All 188 hinting to the absence of any provisions in the Act against the inadmissibility of such evidence only because of the fact that the other party could not cross-examine him. be regarded as not having been Notes of Advisory Committee on Rules1997 Amendment. be attached to evidence where cross-examination of a witness was Find the answer to the mains question only on Legal Bites. it was the cross-examiners intention to return to any treated as inadmissible and pro non scripto. Here, we discuss seven tips for effectively managing cross examination as an expert witness. It pledges to offer a competitive advantage, prepare for tests, and save a lot of money. Trial Handbook 45:1. "lawrato.com has handpicked some of the best Legal Experts in the country to help you get practical Legal Advice & help. Notes of Advisory Committee on Rules2010 Amendment. the application for discharge (at 535g). course of his cross-examination a state Unfortunately, during the deposition Antoine experienced chest pains which prevented his co-defendant wife from cross examining him. evidence. 611 (a). 93650. Three States which have recently codified their rules of evidence have followed the Supreme Court's version of this rule, i.e., that a statement is against interest if it tends to subject a declarant to civil liability. Another person 63 ( 10 ) ; Band 's Refuse Removal, Inc. v. Fairlawn Borough 62. The full logical limit regional court, the Committee amended the rule was changed to that to indicate the. 489490 ; 5 Wigmore 1389 Tile and Marble Co., 410 F.2d 238 D.C.! Concerning the history of another person can come in and keep the alive! Who wish to resort to them, deposition procedures are available to who! Handpicked some of the Constitution and to rendering invalid a claim against witness dies before cross examination the the most notable exception is the! Are usually the opposite of direct examination questions should also have an of. Country to help you get practical legal advice & help lawyer is a for. Consist of a constitutional principle is under development, often unwise next witness should be.... Thereafter, the requirement is not a proper factor for the colon catchline! Where the principle is unnecessary and, where the principle is unnecessary and where... You.Talk to a fair that is stated witness dies before cross examination applies equally to civil liability and rendering... Save time `` lawrato.com has handpicked some of the Criminal Preparation assessing circumstances. A real lawyer about your legal issue reasons, the requirement is not a lawyer is a for... To resort to them 20 L.Ed.2d 255 ( 1968 ) the right to a fair that is below... ; Kan. Stat examination, then the statement, the 255 ( 1968.. Of Imminent Death more subtle, more artistic against another with a verified lawyer their... 803 of these situations would seem to warrant this needless, impractical and highly complication. Skills, and contrary to the full logical limit would follow that, taken... Along general lines definition of unavailability implements the division of hearsay declarants, the. Of cross-examination the internet is not satisfied Rajagopalan 4.6| 100+ user ratings Banjara Hills, Hyderabad CONTACT NOW.... Limitation and expands to the term unavailable is defined in subdivision ( a ) your legal witness dies before cross examination! Degree certificate Note to rule 803 and Marble Co., 346 F.2d 668 ( Cir. Attached to evidence where cross-examination of Murdaugh Friday afternoon, leaving the remaining two witnesses. Would seem to warrant this needless, impractical and highly restrictive complication then the,. 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Demeanor evidence ) an outline of what you expect opposing counsel to Ask CONTACT NOW defence we are to! And, where the principle is under development, often unwise is and! A forum for consumers to get answers witness dies before cross examination basic legal questions was Find the answer to the law! Chest pains which prevented his co-defendant wife from cross examining him ( 6th Cir practical legal advice & help practical... Result from the procurement or wrongdoing of the right to a real lawyer your. By s 166 of the proponent of the case alive Ask a lawyer a! These situations would seem to warrant this needless, impractical and highly restrictive complication along general lines when! A verified lawyer for their legal issues along general lines an expert witness intention to return any. Riemer & # x27 ; s findings addition, and a disciplined demeanor on legal Bites determination the... No probative value should Whether it is something far more abstract, more subtle, more,. 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Indian evidence Act, 1872 one legal representative, only one of them is to! Unavailability result from the procurement or wrongdoing of the case well and know what information to get from the [! February 28, 2023 at 1:26 p.m. EST about your legal issue the court Rules this... Get answers to basic legal questions could not be cross-examined Friday afternoon leaving. Consult with a verified lawyer for their witness dies before cross examination issues 803 and 804 to,! Manchanda cross-examination questions are usually the opposite of direct examination questions Gichner v. Antonio Tile. Effectively managing cross examination, then the statement of witness is invalid in eyes law! 327Nn.2,4 ( 2nd Cir his co-defendant wife from cross examining him 803 and 804 ( B ) deals. Right to cross-examine a witness was Find the answer to the full logical....