Washington Law Review


Appellant, Ernest Welcome, was convicted in a New York state supreme court on charges of murdering two real estate brokers in their Bronx office. Before indicting Welcome, the State tried another party, Albert Cunningham, for the same offenses. Cunningham had admitted his participation in the crimes to police, giving an accurate account of the date, time, and location of the shootings. After a separate evidentiary hearing, the state court held that his confession to police had been voluntary and thus was admissible against him. Nevertheless, the charges against Cunningham were dropped in mid-trial. At his trial, Welcome called Cunningham as a defense witness. On direct examination he testified that he and two men named Branch and Green had committed the crimes of which Welcome was accused, but on cross-examination Cunningham denied having had anything to do with the murders. When Welcome's counsel attempted to impeach this repudiation by introducing Cunningham's confession as a prior inconsistent statement, the trial court barred the testimony on the ground that the witness had not explicitly implicated the defendant and, therefore, under New York's voucher rule could not be impeached by the party that had called him to the stand. Welcome appealed the ruling. He also sought a new trial when a witness for the prosecution later changed his story. When his request was denied, he took a second appeal. The New York Court of Appeals affirmed the conviction and dismissed the appeal from the motion for a new trial. Welcome thereupon petitioned for a writ of habeas corpus in the federal district court for the southern district of New York. The district court rejected his argument that the state's refusal to permit cross-examination of Cunningham as to his confession and, alternatively, its refusal to grant him a new trial in the face of another witness' recantation each constituted a deprivation of his fourteenth amendment due process right to a fundamentally fair trial. The Court of Appeals for the Second Circuit reversed. Held: When another person, present on the witness stand, has previously confessed that he, rather than the defendant on trial, has committed the crime, to restrict examination of such a witness so that his prior confession may not be proven is to deny the defendant a fair trial under the fourteenth amendment due process clause, at least when the confession, though retracted, has some semblance of reliability. Welcome v. Vincent, 549 F.2d 853 (2d Cir.), cert. denied, 97 S. Ct. 2960 (1977).

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