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.