U.S. Supreme Court

Toughens Standard for Trial Testimony

By Henry W. Wiggins, III; Sept 1999

  It has always been a basic right under the U. S. Constitution that a criminal defendant be afforded the opportunity to confront witnesses against him. 

     But when Mark Lilly refused to testify against his brother, Ben Lilly, at Ben’s 1996 murder trial in Virginia, prosecutors had an alternative plan.  They decided to use a transcript and tape of an earlier confession Mark made to police which also implicated his brother as the trigger man.

     Judges in Virginia, including the Virginia Supreme Court, found no problem with the tactic.  Recently, however, the U.S. Supreme Court ruled that the prosecutors violated Ben Lilly’s Sixth Amendment right to confront and cross-examine all witnesses at his trial.  Lilly v. Virginia, 119 S. Ct. 1887 (1999).

     The high court’s decision sends a loud and clear message to judges, prosecutors and defense lawyers that the justices take serious the Sixth Amendment right to confront witnesses.

     The essence of the Sixth Amendment’s confrontation clause is that a defense attorney will have the opportunity to cross-examine all witnesses.  It is seen as an efficient and effective means of discovering the truth while helping jurors gauge the credibility of witnesses. 

     But when prosecutors build a case around transcripts and tape recordings from police interrogations, defense attorneys can’t cross-examine their contents, and a jury may place too much or too little importance on them.

     The Lilly case is important because it establishes that evolving rules of evidence in Washington and other states will be closely scrutinized by the U.S. Supreme Court.