IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,293

BARY SHEENE BYARS, Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS

FROM CAUSE NUMBER 91788 I N THE CRIMINAL JUDICIAL

DISTRICT COURT OF JEFFERSON COUNTY

The Confrontation Clause reflects a judgment about how the reliability of testimony can best be determined. ⁽¹⁾ The Clause commands that reliability be assessed by testing in the crucible of cross-examination. ⁽²⁾ That judgment is valid regardless of the circumstance that the Confrontation Clause does not apply to the State.

The habeas court in this case examined the witness in camera, with a court reporter present, but in the absence of the prosecuting attorney and of the defense attorney. The State did not object to the procedure. Perhaps the habeas court wanted to protect the witness from unnecessary distress - which is an admirable and understandable goal. But adversarial testing is the constitutionally prescribed method of assessing reliability, and it "beats and bolts out the Truth much better" ⁽³⁾ than the procedure used here.

So the Court overturns an error-free conviction on the basis of testimony that was not subjected to cross-examination. I concur in the Court's judgment because the trial court's findings are supported by the record, but my confidence in the outcome would have been higher had the recanting witness been cross-examined by the State.

Date filed: November 9, 2005

Publish

1. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1370, 158 L.Ed.2d 177 (2004).

2. Id.

3. Id. citing M. Hale, History and Analysis of the Common Law of England 258 (1713).