In United States v. Larson, the Ninth Circuit Court of Appeals, sitting en banc, finds that the Confrontation Clause was violated by an order of the trial court barring defendants from cross-examining two witnesses about the mandatory minimum prison sentences they would have faced but for their cooperation with the Government. The majority, however, found the error to be harmless and affirmed the convictions.
In addressing the issue, the Circuit recognized that there was an intra-circuit conflict regarding the standard of review for Confrontation Clause challenges to a trial court's limitation on cross-examination. It clarified this conflict by holding that "If the defendant raises a Confrontation Clause challenged based on the exclusion of an area of inquiry, we review de novo. In reviewing a limitation on the scope of questioning within a given area, we recognize that 'trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.' Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). A challenge to a trial court's restriction on the manner or scope of cross-examination on nonconstitutional grounds is thus reviewed for abuse of discretion."
The Circuit then found that the abuse of discretion standard applied here because the challenge was to the trial court's limitation on the scope of cross-examination within an area of inquiry: the biases and motivations to lie of the Government's cooperating witnesses.
"The Confrontation Clause of the Sixth Amendment which 'guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him,"' Van Arsdall, 475 U.S. at 678, includes 'the right of effective cross-examination,' Davis v. Alaska, 415 U.S. 308, 318 (1974). Effective cross-examination is critical to a fair trial because '[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.' Davis, 415 U.S. at 316. We, like the Supreme Court, have 'emphasized the policy favoring expansive witness cross-examination in criminal trials.' Lo, 231 F.3d at 482; see also Van Arsdall, 475 U.S. at 678-79; Davis, 415 U.S. at 316."
Other nice language is included in the opinion. It's worthy of review for anyone facing an issue re: limitiation on cross-examination.
The Circuit then examined the facts concerning the limitations placed on the cross-examination of two witnesses. For the first witness, the Circuit found that sufficient details were explored prior to the district court's ruling which limited cross-examination. For the second witness, the Circuit found that the trial court's ruling as to the first witness made it abundantly clear that it would not permit defense counsel to cross-examine the second witness regarding his mandatory minimum life sentence that he faced in the absence of cooperation. Defense counsel heeded the court's admonition and did not affirmatively explore the issue with the second witness. In footnote 8, the Circuit explained that "although defense counsel did not attempt to question [the second witness] further on the issue of his mandatory life sentence, Defendants did not forfeit their Confrontation Clause claims in light of the district court's clear ruling." It further found that the fact that the second witness faced a mandatory minimum sentence of life imprisonment in the absence of cooperation with the Government was clearly relevant to assessing his testimony, as it would reveal to the jury his potential biases and motivations for testifying against the defendants.
The Circuit next considered various factors for and against admission of the testimony. Of particular interest is its finding that the Government's interest in prevent a jury from inferring a defendant's potential sentence is outweighed by a defendant's right to explore the bias of a cooperating witness who is facing a mandatory life sentence.
The Circuit next drew a distinction between previous holdings that it is not error for the trial court to prohibit cross-examination regarding the potential maximum sentence that the witness faces and the minimum mandatory sentence at issue in this case.
Ultimately, the Circuit concluded that the defendant's right of confrontation was violated by the trial court's order disallowing cross-examination on the potential sentence faced by the witness, but that the error was harmless beyond a reasonable in light of significant evidence against the defendants, the fact that the witness's credibility was challenged in other areas, and the fact that the court instructed the jury to view the testimony of a cooperating witness with greater caution than that of other witnesses.
The majority opinion was authored by Judge Paez, a concurring opinion was authored by Judge Graber, a dissenting opinion was authored by Judge Hawkins