Wednesday, August 29, 2007

Opportunity for Cross-Examination at Preliminary Proceedings

I am writing this post to invite readers' comments on this set of questions: California v. Green, 399 U.S. 149 (1970), holds that an opportunity to cross-examine at a preliminary hearing satisfies the confrontation right. How, if at all, does this principle affect the conduct of lawyers and courts at preliminary hearings and other pre-trial evidentiary proceedings (such as depositions taken for discovery purposes) not held for the primary purpose of preserving testimony? For example, how often do defense lawyers conduct a full cross-examination – knowing that if they do not and the witness is unavailable to testify at trial, it may be that the court will admit the earlier testimony and reject a claim of the confrontation right by ruling that the defense already had an opportunity for cross-examination? And how willing are courts to allow a full cross-examination given this possibility?

My own slightly educated guess is that usually the prospect of trial admissibility does not cause defense lawyers to conduct extensive cross-examinations at preliminary proceedings, and that if they tried to do so the courts would constrain them. Preservation of testimony is not the purpose of these proceedings, and if the defense protected itself (though at the potential cost of losing benefits of surprise) by making extensive cross-examinations these proceedings would become much more time-consuming. But I would like to know more than I do now from those who deal with these situations regularly. Thanks!

Friday, August 17, 2007

Ninth Circuit decision in Yida -- on "reasonable means" and unavailability

Yesterday, a panel of the United States Court of Appeals for the Ninth Circuit issued its decision in United States v. Yida, 2007 WL 2325143. This case generated some anticipation because after oral argument the panel issued an order inviting amicus briefs from any interested person. The court's opinion is a good one, and has several interesting aspects to it.

Yida was tried on drug charges, but the jury hung. A key witness against Yida was Reziniano, an Israeli. The Government allowed Reziniano to be deported to Israel, accepting Reziniano's solemn promise that he would return to testify at a retrial. But soon after reaching Israel, on the eve of the retrial, surprise, surprise, Reziniano said he would not return, supposedly for medical reasons. The district court held that Reziniano's testimony from the first trial could not be admitted at the retrial. The Government appealed that ruling, but the Ninth Circuit has now affirmed. Judge Gould wrote the opinion for a unanimous panel, resting the decision squarely on a holding that Reziniano was not unavailable within the meaning of Fed. R. Evid. 804(a). He also added a brief concurrence (rather unusual, isn't it, the same judge issuing majority and concurring opinions at the same time?), emphasizing the constitutional significance of unavailability.

The main opinion has a discussion that I think is quite useful on the advantages of live testimony at a second trial as compared to the transcript of testimony from the first trial. (Some self-interest there, I suppose, because this discussion quotes approvingly from my amicus brief.) The most obvious advantage, of course, is that live testimony gives the jury the chance to observe the demeanor of the witness. Beyond that, requiring the presentation of live testimony when possible gives a defendant a second crack at the witness, and thus a chance to develop inconsistencies; it gives the defense an opportunity to cross-examine on the basis of all information available at the time of the second trial; and it deprives the prosecution of the opportunity to "stand pat" on the transcript when it has reason to believe that the witness would come off worse in live examination. An accused is not guaranteed a second chance to examine a witness, of course, but these are beneficial by-products of holding a second trial, and they should not be forsaken if the witness is available to testify live.

The principal issue at stale in Yida is whether the Government used "reasonable means," within the meaning of Fed. R. Evid. 804(a)(5), to procure Reziniano's attendance at trial. The court's discussion strikes me as very sound. (Same self-interest, same reason.) The court examined alternative choices that the Government might have made, even apart from keeping Reziniano in custody pending a second trial. It might have taken Reziniano's passport away or held him in electronic detention, or done both, to ensure his appearance. Or before deporting Reziniano it might at least have taken a video deposition, which would have offered most of the advantages of live testimony. To the Government's argument that a deposition would have been of no avail, because it could be admitted only if Reziniano was deemed unavailable, the court properly responded that taking a deposition would have altered the calculus of whether the Government's conduct in deporting Reziniano was reasonable.

More generally, the court squarely rejected the Government's contention – which did not have a lot to be said for it – that reasonableness ought to be determined within a time frame beginning shortly before trial. The measure of reasonableness should not be confined by artificial boundaries, and prosecutors should be charged with the ability to think and plan ahead. I hope this same principle will be applied in the somewhat related context of determining whether, for purposes of applying forfeiture doctrine, the accused should be deemed to have rendered a witness unavailable. It sometimes happens that a witness who otherwise would have been able to testify at trial is prevented from doing so by the accused's misconduct – most frequently intimidation or homicide – but if at an earlier time the prosecution had taken reasonable steps (such as holding a deposition) the witness could then have testified subject to confrontation. In this context, as in Yida, it should not be enough for the prosecution to focus on the time immediately before trial and proclaim that there was nothing it could then do to bring the witness to trial.

Friday, August 03, 2007

Standard of review for limitations on cross-examination

Greg May has brought to my attention a significant en banc decision, United States v. Larson, 2007 WL 2192256, issued Wednesday (Aug. 1, 2007) by the Ninth Circuit, addressing the question of the standard of review that applies when an accused contends on appeal that a trial judge’s limitation of questions on cross-examination violated his rights under the Confrontation Clause. (Greg’s comments are available on California Blog of Appeal. My views are in large part, but not completely, in accord with his.) This is an issue on which the Circuits, and indeed panels within the Ninth Circuit, have split in three basic groups.

Some courts have held that restrictions on cross should be reviewed de novo. Some have held that such restrictions should be reviewed only for abuse of discretion. And some courts, often suing rather mystifying language, have held that some combination of these standards applies. The Ninth Circuit now adopts the last of these approaches, with a prevailing opinion that offers considerable elaboration:

If the defendant raises a Confrontation Clause challenge 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).

I wonder how tenable that distinction will be; “area of inquiry” is not a self-defining term. In Larson itself, for example, the court concluded that the restrictions on cross-examination – preventing the defendants from asking about the mandatory minimum sentences that two witnesses would have received had they not cooperated with the Government – lay “within an area of inquiry,” specifically “the biases and motivations to lie” of those witnesses. “[B]iases and motivations to lie” constitute a mighty broad “area of inquiry”; I wonder how often a judge ever forecloses cross-examination of it. In this case, one might have said, it seems to me, that the relevant area of inquiry was “the sentence that the witness would have received absent cooperation.”

Moreover, immediately after articulating the distinction, the court immediately muddied the waters by adding, “A challenge to a trial court's restrictions on the manner or scope of cross-examination on nonconstitutional grounds is thus reviewed for abuse of discretion.” I don’t see any reason why it should matter whether the governing rule of law is constitutionally based or not.

And the court added further confusion by stating, “This standard . . recognizes that whether there has been a Confrontation Clause violation is ultimately a question of law that must be reviewed de novo.” I am scratching my head trying to reconcile that statement with the passage quoting Van Arsdall. Perhaps the Court means that in some circumstances de novo review incorporates a discretionary substantive standard of what constitutes a violation, but if that is so effectively there is review for abuse of discretion. In any event, I do not believe that the premise – that whether there has been a violation is a question of law subject to de novo review -- is completely accurate. Compare the case in which a trier of fact determines that there has been negligence. The reviewing court must determine by de novo review whether the standard applied for what constitutes negligence is the correct one. And the reviewing court might decide as a matter of law that the facts could not support a conclusion that there was negligence in the particular case; if there is a jury, the question of whether the case should have been left to it is subject to de novo review. But in many cases, the evidence could support a conclusion either way, and that includes some cases in which what happened is clear but how it should be characterized is not. De novo review does not apply there.

Having said all this, it seems to me that the en banc court had the right instinct, though its expression was somewhat clunky. As indicated above, I don’t think there is any sharp distinction between preclusion of an area of inquiry and restriction within an area. But there may be a significant continuum here, and perhaps the court is pointing in the general direction of it. Appellate review can be more or less deferential. It should be less deferential, all other things being equal, if a situation is likely to recur with some regularity in materially similar circumstances. Recurrence suggests value in uniformity, which can be gained only with de novo review. And recurrence in materially similar circumstances suggests the possibility of articulating workable rules of law. So the more the trial judge’s ruling sounds like precluding a well-defined area of inquiry, and the less it sounds like merely putting some limitations on the extent to which defense counsel can pursue that inquiry, the stronger the argument for giving little deference to the trial judge’s ruling.

On that basis, I think there may be good reason to conclude as a matter of law that the defense must be allowed a reasonable opportunity to explore what the cooperating witness’s expectations were with respect to the sentence he would receive absent cooperation. But, as noted above, the en banc court treated this as a matter subject to review for abuse of discretion.

In applying that standard, the court – unanimous up to that point, as I understand it – split three ways. The prevailing group concluded in the case of one witness that the defense had an adequate opportunity to demonstrate the bias of the witness. (This was in part, interestingly enough, because the witness actually answered the question as to what the minimum would have been absent cooperation, and though the trial judge intervened at that point and said this was not a proper subject of questioning, he never actually struck the answer; so what should defense counsel have done, say, “Judge, if you’re going to rule against me, please do it clean, and tell the jury to disregard that helpful answer I just got”?) The judge’s ruling with respect to the first witness gave a clear signal, and defense counsel never attempted to reveal to the jury that absent cooperation the second witness faced a mandatory life sentence without the possibility of release. The prevailing group of Ninth Circuit judges concluded that the defense was thus improperly precluded from demonstrating to the jury the magnitude of the incentive that the second witness had to cooperate with the Government. But guess what – the error was harmless. One other group of judges, contending that there was no violation with respect to the second witness, concurred in the judgment; another group contended that there was a violation with respect to the first as well as the second witness, and that the error was not harmless.