Cross-Examination

Olden v. Kentucky, 488 U.S. 227 (1988)

The Supreme Court, in a per curiam decision, reversed the defendant’s kidnapping, rape, and forcible sodomy conviction because of improper restrictions on the cross-examination of the alleged victim. The defendant sought to establish that the victim was trying to protect her relationship with her boyfriend when he saw her disembark from the defendant’s car. The defendant contended that the sexual conduct was consensual. The trial court prevented the defendant from cross-examining the victim about her living arrangements with her boyfriend. Citing Davis v. Alaska, 415 U.S. 308 (1974); Pointer v. Texas, 380 U.S. 400 (1965); Delaware v. Van Arsdall, 475 U.S. 673 (1986), the Court held that this limitation on a matter which represents a prototypical form of bias on the part of the witness required reversal of the conviction.

Nappi v. Yelich, --- F.3d --- (2d Cir. 2015)

The defendant was charged with felon in possession of a firearm that was located in his house. His wife, who resided in the house, but in a separate bedroom, was the principal witness against him. At trial, the defense wanted to cross-examine her about her relationship with another man and argued that this was her motive to frame the defendant to get rid of him. The trial court excluded this line of cross-examination as a “collateral matter.” The Second Circuit granted a writ of habeas corpus.

Blackston v. Rapelje, 780 F.3d 340 (6th Cir. 2014)

If the state introduces a prosecution witness’s prior sworn testimony at defendant’s trial, the defense is entitled to introduce evidence that the witness recanted that testimony. This is implicit in the right to confront one’s accusers.

United States v. Mergen, 764 F.3d 199 (2d Cir. 2014)

The government was permitted to ask an FBI agent if he believed that his informant – the defendant – had done anything wrong. The agent testified that he had violated the terms of his informant agreement and was criminally responsible for his conduct. The defendant offered a taped statement of the defendant talking to the agent in which the informant asked the agent “Did I do anything wrong” and the agent responded, “No, no.” Excluding this impeachment evidence on evidentiary grounds (including hearsay) was reversible error.

Alvarez v. Ercole, 763 F.3d 223 (2d Cir. 2014)

The state trial court erred in preventing the defense from cross-examining the lead detective about other investigations that were not pursued. The investigation that was not done was not subject to a hearsay objection, because the issue is not the truthfulness of what was told to a police officer conducting the investigation, but whether there were leads that were not followed. Denying the defense the right to cross-examine the detective violated the Confrontation Clause and was particularly harmful, because the prosecutor arged in closing that the investigation was thorough.

Ortiz v. Yates, 704 F.3d 1026 (9th Cir. 2012)

The defense sought to cross-examine the defendant’s wife regarding whether she was afraid to deviate from her initial statements accusing her husband of abuse because of threats the prosecutor’s investigator made towards her about changing her story (that is, the investigator had threatened to put her in prison for lying at the preliminary hearing if she did not stick to that version of events). The trial court prevented this line of questioning. This violated the defendant’s right of Confrontation.

United States v. Woodard, 699 F.3d 1188 (10th Cir. 2012)

The trial court erred in barring the defendant from cross-examining a government witness – a law enforcement officer – about a prior judicial determination that the witness was not credible. In the prior case, the law enforcement officer testified hat he smelled raw marijuana in the trailer. The district judge in that case concluded that the testimony of the officer regarding smelling marijuana was not credible. In this case, the officer again testified about having smelled raw marijuana in the defendant’s trailer. The Tenth Circuit cited the Second Circuit case United States v. Cedeno, 699 F.3d 1188 (2d Cir. 2011) in support of its holding that this was proper cross-examination under Rule 608(b) and the Confrontation Clause.

United States v. White, 692 F.3d 235 (2d Cir. 2012)

Based on Cedeno, noted below, which was decided after the trial was held in this case, the Second Circuit held that it was reversible error to exclude evidence of a prior judicial finding that a government witness was not credible. The prior judicial finding involved the law enforcement officer’s testimony at a suppression hearing which the judge, in that case, refused to credit. The appellate court also held that excluding evidence of the government’s initial charging decision was also reversible error. The defendant was an occupant of a vehicle with four women. Three guns were found in the car. One of the guns was allegedly found in the defendant’s pocket. The women, however, were initially charged with possessing all the guns, including the gun allegedly found in the defendant’s pocket. Subsequently, the government changed its charging decision. The appellate court held that the defendant should have been permitted to introduce evidence about the initial arrest of the women for that gun.

United States v. Sanabria, 645 F.3d 505 (1st Cir. 2011)

A co-conspirator came to the defendant’s attorney’s office and reported that the agents had intimidated him and threatened him to conform his story to the testimony that helped the government. At trial, the co-conspirator testified for the government. The defense attorney sought to cross-examine the co-conspirator about having been intimidated by the agents, as had been reported to the attorney. The trial judge excluded this testimony on the theory that it was outside the scope of direct. This was error.

United States v. Woodard, 699 F.3d 1188 (10th Cir. 2012)

The trial court erred in barring the defendant from cross-examining a law enforcement officer about a prior judge’s determination that the officer was not credible. This method of impeachment is permitted under Rule 608(b). The factors the cout should consider in exercising his discretion are as follows: (1) whether the prior finding involved a determination of the officer’s credibility generally, or just in that case; (2) whether the prior testimony involved a subject matter similar to the subject matter in the instant case; (3) whether the prior “lie” was in a judicial proceeding or some othe forum; (4) whether the prior lie was about a significant matter; (5) how much time had elapsed between the two proceedings; (6) whether the witness had a motive to lie in the prior proceeding and whether the same motive existed in this proceeding; (7) whether any explanation offered by the witness in the prior proceeding was plausible. The holding in this case is not limited to prior testimony of law enforcement officers, but applies to any witness.

United States v. Cedeno, 644 F.3d 79 (2d Cir. 2011)

The trial court erred – though it was harmless error – in barring the defense from questioning a prosecution wintness about a prior judicial finding that the witness was not credible. The witness’s prior testimony can be viewed as prior conduct that comes within the scope of Rule 608(b). See also, United States v. Terry, 702 F.2d 299, 316 (2d Cir. 1983).

United States v. Kohring, 637 F.3d 895 (9th Cir. 2011)

The government failed to reveal to the defendant that a key prosecution witness was being investigated by state agents for child sx abuse offenses and efforts to obstruct justice in connection with those sex offenses. Though the trial court recognized that this evidence should have been disclosed, the trial court further held that the evidence would not have been admissible under Rule 403, because it would have confused the issues. The Ninth Circuit reversed. The evidence should have been disclosed and it would have been admissible to impeach the witness.

Sussman v. Jenkins, 636 F.3d 329 (7th Cir. 2011)

Trial counsel failed to provide pretrial notice of the intent to introduce evidence that the child molestation victim had made prior false allegations of sexual abuse against another man (his father). Trial counsel’s failure was ineffective assistance of counsel, because such evidence – prior false allegation evidence – was admissible and significant evidence relating to the child’s credibility and motive for fabricating allegations (i.e., to get attention, or for punishing people for not paying attention to him). This evidence was clearly admissible under the Confrontation Clause.

Childers v. Floyd, 642 F.3d 953 (11th Cir. 2011)

The defendant, a county commissioner, was on trial for paying a bribe to another commissioner to vote on a particular project that benefitted a citizen who was paying the bribe money. The second commissioner was the key government witness. At a trial involving the citizen bribe-payor, the second commissioner testified and the bribe payor was acquitted. The second commissioner then was debriefed again and added to his factual recitation and changed other facts. The government threatened to revoke his plea agreement, but the court would not allow it. The first commissioner’s trial then was held and the trial judge held that the defendant could not mention the acquittal of the bribe payor or the circumstances surrounding the second commissioner’s change of story, though he was allowed to cross-examine the witness about the prior inconsistent statements. A panel of the Eleventh Circuit reversed the conviction, but the en banc court held that regardless of what the court might do in a case on direct review, under the deference required pursuant to the AEDPA, it was not proper to grant the writ. See also 736 F.3d 1331.

United States v. Robinson, 583 F.3d 1265 (10th Cir. 2009)

The trial court erred in barring the defense from reviewing the mental health records of the key eyewitness in this case. The parties and the lower court knew that the witness had just been released from a mental health facility prior to his testimony, but the defense was barred from reviewing the records. The trial court also erred in barring the defense from cross-examining the witness about his mental health infirmity and use of drugs. Among the cases relied upon by the Tenth Circuit were United States v. Lindstrom, 698 F.2d 1154 (11th Cir. 1983) and Greene v. Wainwright, 634 F.2d 272 (5th Cir. 1981).

Holley v. Yarborough, 568 F.3d 1091 (9th Cir. 2009)

The defendant was charged with child molestation. Barring cross-examination of the chid about her “active” sexual imagination and her prior statements about having sex with neighborhood children and her brother deprived the defendant of his Sixth Amdendment right of Confrontation and required that the writ be granted. The excluded evidence would have shown her tendency to exaggerate, if not fabricate allegations of sexual conduct and demonstrate her familiarality of sexual terminology.

Slovik v. Yates, 556 F.3d 747 (9th Cir. 2009)

A witness for the state was on probation as a result of a DUI conviction. He was asked by the defense whether, at the time of his testimony, he was on probation. He responded that he was not. This was not true and the defense sought to cross-examine him with a document that showed that he was on probation. The state judge excluded the cross-examination. This was constitutional error for two reasons: first, the cross-examination that he was on probation was admissible as evidence of bias; second, the witness’s false testimony that he was not on probation was a further basis for cross-examination to show the jury that the witness was willing to lie under oath.

Brinson v. Walker, 547 F.3d 387 (2d Cir. 2008)

The defendant was accused of robbing the victim. The defense attempted to cross-examine the victim on his racist attitudes. The defense was that the victim concocted the entire robbery story because he was a racist, even though he had no particular animus directed toward the defendant personally. Precluding this line of questioning violated the defendant’s Sixth Amendment right of confrontation and the Second Circuit held that the writ should have been granted. The Second Circuit reached a similar result in a decision five days later in United States v. Figueroa, 548 F.3d 222 (2008), where the defendant sought to cross-examine the witness about his swastika tattoos to demonstrate that he was a bigot, thus showing the jury the witness’s bias against the defendant. The court in Figueroa held that limiting the cross-examination violated the defendant’s Confrontation Clause rights but was harmless error.

Vasquez v. Jones, 496 F.3d 564 (6th Cir. 2007)

The constitutional right to cross-examine a witness is not limited to exploring motive, bias and prejudice. Other attacks on credibility, including information about the prior criminal record of the witness, are also protected by the Sixth Amendment’s Confrontation Clause. In this case, barring the defense from introducing impeachment evidence (criminal record) of a non-testifying hearsay declarant was a violation of the Confrontation Clause.

United States v. Larson, 495 F.3d 1094 (9th Cir. 2007)

Though it was harmless error, the trial court erred in limiting the defendant’s cross-examination of a witness about the mandatory minimum sentence she faced (and was trying to eliminate based on her cooperation).

United States v. Jiminez, 464 F.3d 555 (5th Cir. 2006)

The trial court committed reversible error by limiting the defendant’s cross-examination of an officer on the subject of his exact location when he claimed to have surveilled the defendant’s house, and the defendant selling drugs from her house.

United States v. Smith, 454 F.3d 707 (7th Cir. 2006)

When a defense attorney is cross-examining a government witness, if the witness is prepared to answer questions about what his lawyer told him (i.e., the value of cooperating, the meaning of a § 5K1.1 departure, etc), the government may not object on grounds of attorney-client privilege. The government may bring the privilege to the attention of the court and the witness, but may not object. The privilege may only be asserted by the witness. Thus, in this case, when the government objected and the trial court promptly granted the objection (without the witness every having invoked the privilege), it was error. Harmless error in this case.

United States v. Watler, 461 F.3d 1005 (8th Cir. 2006)

The trial court erred in barring the defense from cross-examining a witness about a threat he made to stab the defendant if he ever met him in the street. Harmless error.

United States v. Larson, 460 F.3d 1200 (9th Cir. 2006)

The trial court erred in barring defense counsel from cross-examining a cooperating witness about the mandatory minimum sentence he would face but for his cooperation. Harmless error. The en banc court reached the same conclusion, finding that excluding evidence about the mandatory minimum sentence was a Confrontation Clause violation, but was harmless. (August 1, 2007 decision).

United States v. Smith, 451 F.3d 209 (4th Cir. 2006)

The trial court erred in barring the defense from questioning a law enforcement officer about the destruction of evidence (drugs) that were the basis for the prosecution in this case. The drugs had been seized by state agents and were initially the focus of a state prosecution. When the case was transferred to the federal prosecutors, the state case was dismissed and the drugs were destroyed. Cross-examination on the inappropriate destruction of the contraband should have been permitted – but the error was harmless.

United States v. Montelongo, 420 F.3d 1169 (10th Cir. 2005)

The defendant was convicted of transporting marijuana in a truck. The owner of the truck also owned other trucks and another of the trucks was also found to have been carrying marijuana. When the owner testified, the defendant sought to cross-examine him about the other incident (to suggest that the owner was using the trucks to haul marijuana, unbeknownst to the drivers). Barring this cross-examination was reversible error. The defendant was permitted under Rule 404(b) to show the other incident to prove his innocence.

White v. Coplan, 399 F.3d 18 (1st Cir. 2005)

A state court decision that limited a defendant’s ability to cross-examine two child molestation victims about prior false allegations violated the Confrontation Clause. The state court required that before such evidence may be admitted, the trial court must find that the prior allegations were “demonstrably false” – a threshold that the First Circuit held was too demanding in the context of this case.

Kittelson v. Dretke, 426 F.3d 306 (5th Cir. 2005)

The state court violated the defendant’s confrontation clause rights by barring cross examination in this child molestation on the topic of prior false allegations.

Fowler v. Sacramento County Sheriff’s Department, 421 F.3d 1027 (9th Cir. 2005)

Barring questioning about prior false molestation accusations violated the defendant’s right to confront his accuser.

United States v. Vega Molina, 407 F.3d 511 (1st Cir. 2005)

Limiting a defendant’s cross-examination of a cooperating co-conspirator was reversible error. Among the topics that should have been allowed was probing the witness’s relationship to another defendant who was on trial and who supposedly conspired with the witness to frame the defendant. In addition, the other defendant’s abuse of the witness was a proper subject of cross-examination.

Howard v. Walker, 406 F.3d 114 (2d Cir. 2005)

A co-conspirator’s statement to the police was excluded on Bruton grounds. However, an expert witness for the state relied on that statement in reaching her conclusion that the victim’s death was caused by conduct of the conspirators. Though an expert may generally rely on inadmissible evidence in reaching a conclusion, including hearsay, that rule assumes that an expert will carefully analyze the basis of his opinion and that the trial court will conduct a sufficient Daubert hearing to ensure the reliability of the expert’s underlying data from which she draws her conclusion. In this case, the unreliable statements of the co-conspirator were not reliable and the expert’s opinion was therefore improperly admitted. The error was compounded by the state trial court’s ruling that if the defense cross-examined the witness about her conclusions, the inadmissible Bruton statement would be admitted. A defendant cannot be compelled to sacrifice one right – the Sixth Amendment right to cross-examine witnesses – to protect another right – i.e., the right of Confrontation embodied in the Bruton doctrine. Simmons v. United States, 390 U.S. 377 (1968).

De LiSi v. Crosby, 402 F.3d 1294 (11th Cir. 2005)

A witness who waives his Fifth Amendment privilege with regard to a topic in a judicial proceeding, may not later invoke the privilege, even in a separate legal proceeding, on the same topic. In this case, a prosecution witness previously waived his Fifth Amendment rights regarding possible charges of tax evasion. When cross-examined by the defendant at the defendant’s trial, the trial court erred in permitting the witness to invoke his Fifth Amendment rights. Harmless error.

United States v. Schoneberg, 396 F.3d 1036 (9th Cir. 2004)

Because the witness’s plea agreement left it up to the government whether to offer the witness a reduction in sentence, the defendant should have been allowed to cross-examine the witness about his expectation of a Rule 35. The specific questions that were disallowed focused on the fact that only the government had the power to file the Rule 35 motion. This was not harmless error, even though the jury was able to review the witness’s plea agreement, which was admitted in evidence with the Rule 35 language. The trial court’s repeated statements that it was the jury in this case, not the prosecutor who assessed the credibility of the witness missed the point of the cross-examination, which was to explore the witness’s motive to exaggerate, fabricate, and shade his testimony to please the government.

United States v. Wilmore, 381 F.3d 868 (9th Cir. 2004)

The government’s introduction into evidence of a witness’s grand jury testimony, coupled with the lower court’s restriction of defendant’s cross-examination of that government witness amounted to a violation of defendant’s Confrontation Clause rights and necessitated reversal of the conviction. The witness had testified at the grand jury that she had seen the defendant (charged with being a felon in possession of a gun) in possession of a gun. At trial, she was called as a witness for the government and denied seeing the defendant in possession of the weapon. The government introduced relevant portions of the grand jury testimony and when the witness was confronted by the government with her previous grand jury testimony, she ultimately invoked her Fifth Amendment rights. The judge then instructed defense counsel to avoid asking any questions that would lead to further invocations of the Fifth Amendment. This was erroneous. Because the grand jury testimony was actually introduced in evidence by the government, the defendant could not be limited in his cross-examination of the witness regarding the circumstances of that testimony. More importantly, the introduction of the grand jury testimony amounted to testimony that was not subject to cross-examination, which violated Crawford v. Washington, 124 S.Ct. 1354 (2004).

United States v. Whitmore, 359 F.3d 609 (D. C. Cir. 2004)

The trial court erred in precluding the defendant from cross-examining a police officer about his prior untruthful testimony in an unrelated trial. In that prior trial, the trial judge concluded that the officer had lied and granted a judgment of acquittal for the defendant on trial. Excluding the evidence of that prior perjury was erroneous. “Nothing could be more probative of a witness’s character for untruthfulness than evidence that the witness has previously lied under oath.” The D.C. Circuit also held that the trial court erred in preventing the defense from cross-examining the officer about his suspended driver’s license and his failure to pay child support. Reversible error.

United States v. Chandler, 326 F.3d 210 (3rd Cir. 2003)

Barring the defense attorney from questioning a witness about the sentence he could have faced had he been held responsible for the large amount of drug dealing with which he was involved was reversible error.

United States v. Love, 329 F.3d 981 (8th Cir. 2003)

The trial court erred in preventing the defense counsel from questioning a critical government witness about his mental defects. The witness suffered from short- and long-term memory impairment. The nature of the mental defect, coupled with the timing of the diagnosis made this evidence relevant to the jury’s evaluation of the credibility of his testimony.

United States v. Cruz-Garcia, 344 F.3d 951 (9th Cir. 2003)

The defense attempted to prove the facts underlying the witness’s prior convictions to show that he had the capacity to commit the offenses with which the defendant was charged. The trial court erroneously excluded this evidence. The evidence was admissible under Rule 404(b) to prove the witness’s capacity to commit the crime. Indeed, the prosecutor had repeatedly argued that the witness was too stupid to have committed the crime without the defendant’s help. The court noted that Rule 404(b) should be more liberally interpreted when the evidence is being offered against a witness, as opposed to the defendant.

United States v. Mills, 138 F.3d 928 (11th Cir. 1998)

Both a corporate and individual defendant were charged with Medicare Fraud. The trial court became impatient with duplicative cross-examination of witnesses and finally declared that only one attorney could cross-examine one of the government's summary witnesses. This was error; but harmless. A party may not be denied the right of cross-examination, despite the similarity of interest of that party with another party.

United States v. Stavroff, 149 F.3d 478 (6th Cir. 1998)

The trial court erred in refusing to allow the defendant to question a cooperating co-conspirator about his hopes in entering a plea agreement. The court also criticized the trial judge for sua sponte excluding this line of cross-examination, despite the government’s failure to raise an objection. If the trial judge believes that a question posed by the defense is inappropriate, but the government does not object, the trial court should ask the lawyers to approach the bench, rather than taking on an adversarial role with the defense counsel. Harmless error.

United States v. Lynn, 856 F.2d 430 (1st Cir. 1988)

The trial court erred in preventing the defendant from cross-examining a co-conspirator on the issue of a polygraph examination which was given pursuant to a plea agreement. The inquiry was intended to show the motivation of the witness to continue to lie to curry favor with the government.

United States v. Kaplan, 832 F.2d 676 (1st Cir. 1987)

It was error for the trial court to prohibit the defense from questioning a government witness about his cocaine use. Because the defendant sought to establish that the witness was using cocaine during the times relevant to his testimony, and in connection with his ability to remember or observe the events about which he was testifying, the impeachment was relevant. Harmless error in this case.

United States v. Giovanelli, 945 F.2d 479 (2d Cir. 1991)

The trial court erred in prohibiting counsel from cross-examining witnesses about their testimony in the prior trial of the defendants – a trial which resulted in mistrials and acquittals. The trial court’s concern with the jury’s inability to digest the fact that there had been a prior trial was understandable, but the defendant’s Sixth Amendment rights to confront witnesses, to point out prior inconsistent testimony and to suggest recent fabrication were improperly sacrificed.

Harper v. Kelly, 916 F.2d 54 (2d Cir. 1990)

A defendant was denied his Sixth Amendment right to confrontation when his attorney was prevented from cross-examining an armed robbery victim about her state of mind at the time of the incident. The purpose of the cross-examination was to demonstrate the frailty of the victim’s identification testimony. The exclusion of this line of questioning was reversible error.

United States v. Riggi, 951 F.2d 1368 (3rd Cir. 1991)

The trial court’s failure to permit the defense to re-cross-examine witnesses, after the government was permitted to ask “new” questions on redirect, was reversible error. Even though the defense counsel did not object to new matters being covered on redirect, this did not forfeit his right to cross-examine the witness about these new matters.

United States v. Williams, 892 F.2d 296 (3rd Cir. 1989)

Though a ten-year old conviction cannot be used for impeachment purposes, a defendant should have been permitted to use that conviction to show the witness’ bias. The error in excluding this testimony, however, was harmless.

United States v. Nelson, 852 F.2d 706 (3rd Cir. 1988)

The defendant was on trial for obstruction of a grand jury investigation. The defendants were prohibited from cross-examining a government witness about the purpose for which the grand jury subpoena was issued, a line of questioning intended to demonstrate that the subpoenas were not issued for the purpose of obtaining evidence before a grand jury. Reversible error.

United States v. Landerman, 109 F.3d 1053 (5th Cir. 1997)

Restricting defendant’s cross-examination of a prosecution witness was reversible error. Specifically, the trial court erred in prohibiting the defense from questioning a witness about a pending state felony charge which carried a potential life sentence.

United States v. Stewart, 93 F.3d 189 (5th Cir. 1996)

The trial court abused its discretion in the manner in which it limited the defendant’s cross-examination of the police officer during the suppression hearing. The attorney attempted to place the witness’s testimony in the context of his prior testimony and the judge erroneously barred this method of examining the witness on the theory that it was simply a reiteration of prior testimony. Harmless error.

United States v. Alexius, 76 F.3d 642 (5th Cir. 1996)

The trial court erred in prohibiting the defendant from cross-examining a government witness about pending federal felony charges. This was reversible error.

United States v. Cooks, 52 F.3d 101 (5th Cir. 1995)

The trial court granted a new trial to one defendant because of an improper limitation on the defendant’s cross-examination of the witness relating to the possible sentence on pending charges in another jurisdiction which, arguably, the witness was trying to mitigate by his cooperation in this case. The court also disallowed questioning about a subsequent and pending purse-snatching charge. The government appealed the granting of the new trial. The Fifth Circuit affirmed.

United States v. Smith, 831 F.2d 657 (6th Cir. 1987)

Defense counsel was entitled to cross-examine a prosecution witness as to the bias that witness held against the defendants because of the defendants’ alleged threat to have the witness’ baby taken away from her if the witness did not engage in immoral conduct. Refusal to permit this cross-examination was harmless in this case.

United States v. Ebens, 800 F.2d 1422 (6th Cir. 1986)

A key witness in this civil rights prosecution had been “coached” in preparation of his testimony. The defense attorney sought to play a tape of this coaching but was prohibited by the trial court which held that this constituted impermissible hearsay. The Sixth Circuit holds that this is incorrect. The tapes were introduced not to prove the truth of the matter asserted – quite the contrary – they were introduced to show that the witness was influenced by this coaching.

Lindh v. Murphy, 124 F.3d 899 (7th Cir. 1997)

The state introduced evidence from an expert psychiatrist about the defendant’s mental condition when he committed several murders. The trial judge barred the defense from cross-examining the psychiatrist about the fact that he had sexually abused some of his patients, was about to lose his medical license and his prestigious faculty positions and stood a chance of going to prison. Though the psychiatrist had no reason to believe that his testimony would alter his future (that is, that the state would reward him), the false impression created by the prosecutor about the psychiatrist’s impeccable credentials necessitated allowing the defense to show the jury the truth about the psychiatrist.

Clark v. O’Leary, 852 F.2d 999 (7th Cir. 1988)

In the defendant’s murder trial, he sought to demonstrate that certain state’s witnesses were members of a gang to suggest that their testimony was colored by fear of retaliation and gang loyalty. The trial court’s refusal to permit such cross-examination violated the defendant’s right to full confrontation. The trial court’s preliminary screening of the credibility of the witnesses was improper and required reversal.

United States v. Eagle, 867 F.2d 436 (8th Cir. 1989)

The trial court was clearly wrong in preventing a defendant from cross-examining a witness about the details of her plea agreement. The witness had been a co-defendant in this murder prosecution but had agreed to testify in exchange for a plea to voluntary manslaughter. Because the witness’s testimony did not incriminate the defendant, the error was not reversible.

United States v. Barnes, 798 F.2d 283 (8th Cir. 1986)

Prior to trial, the defendant filed a motion to dismiss the indictment on grounds that the chief DEA agent had lied about the existence of exculpatory tapes. The motion was denied by the trial court on the grounds that the DEA agent may have misunderstood his obligations under Brady. At trial, the defense attorney, while cross-examining the DEA agent, sought to question him about his misconduct in the case. The trial court denied this line of questioning. This was reversible error. The court of appeals relies on the Supreme Court decision in Crane v. Kentucky, in holding that a pre-trial ruling does not bar relevant cross-examination on the same issue. In this case, the cross-examination may have served to impeach the credibility of the DEA agent who, according to the defense theory, was using improper means to secure a conviction.

United States v. Dees, 34 F.3d 838 (9th Cir. 1994)

The defendant was charged with mail fraud in connection with her scheme to defraud a couple who sent the defendant money to adopt her child. The defendant sought to question the victim about a movie contract she had signed about her plight and thus her efforts to profit from the conviction of the defendant. The trial court’s limitation of this cross-examination was an abuse of discretion, though harmless error. If a victim/witness stands to gain more from a conviction than an acquittal, then that fact is relevant to bias.

United States v. Mayans, 17 F.3d 1174 (9th Cir. 1994)

The trial court erred in holding that the best evidence of the witness’ understanding of a plea agreement was the agreement itself. Rather, the witness’ understanding is an issue which the defense is allowed to probe with the witness himself, regardless of what the agreement actually provides.

United States v. Bernal-Obeso, 989 F.2d 331 (9th Cir. 1993)

Just prior to trial, the government alerted the defense that an informant had killed two people several years earlier, but had never been charged with a crime. The defense learned that the informant had in fact pled guilty to two counts of manslaughter and asked the court to permit the defense additional time to determine the background, and also asked to be permitted to ask the informant why he lied to the DEA about his background. Both requests were denied by the trial court. The Ninth Circuit reversed. A lie by an informant-witness to the authorities paying for his services about his felony criminal record would be relevant evidence as to the informant’s credibility.

United States v. Jones, 982 F.2d 380 (9th Cir. 1992)

The trial court’s ruling which precluded re-cross-examination after re-direct was a violation of defendant’s right to confront the witnesses. Because new matters were brought out on re-direct, the defense had a right to re-cross the witness about these new matters.

United States v. Vargas, 933 F.2d 701 (9th Cir. 1991)

In order to prevent any improper questioning of a witness in front of the jury, the trial judge required the attorneys to question the witness with the jury out of the courtroom and then, when the jury returned the next day, the lawyers were only permitted to question the witness from the transcript – as edited by the judge. If the witness’s answer differed in front of the jury from the rehearsed testimony, the judge “impeached” the witness with the transcript. This procedure amounted to a denial of the right to cross-examine the witness and required the reversal of the conviction of all defendants on all counts.

United States v. Platero, 72 F.3d 806 (10th Cir. 1995)

The defendant was charged with sexually assaulting the victim. He sought to cross-examine the victim about the relationship she had with another man (not her husband) a la Olden v. Kentucky, 488 U.S. 227 (1988). The trial court determined that there was insufficient evidence of such a relationship and barred the testimony pursuant to Rule 412. This was error. If a jury could believe that such a relationship existed, the defendant must be allowed to probe this topic. The judge may not make a preliminary factual finding barring the testimony if there is evidence which would support the jury’s determination. See Huddleston v. United States, 485 U.S. 681 (1988).

United States v. DeSoto, 950 F.2d 626 (10th Cir. 1991)

The witness testified that the defendant was carrying a gun when he purchased a car from her boyfriend. The defendant sought to cross-examine the witness with evidence that the defendant had accused the boyfriend of stealing the defendant’s money, and thus the girlfriend was “retaliating” on behalf of her boyfriend for these earlier allegations. The trial court’s ruling precluding this area of cross-examination was reversible error. Any motive for a witness to falsify her testimony may be probed by the defendant.

United States v. Morales-Quinones, 812 F.2d 604 (10th Cir. 1987)

The defendant may impeach a government witness by cross-examining him about specific instances of conduct not resulting in conviction if the conduct is probative of the witness’ character, truthfulness or untruthfulness.

United States v. Burston, 159 F.3d 1328 (11th Cir. 1998)

The district court erred – though harmlessly – in restricting the defense from cross-examining the government’s witness about his numerous prior felony convictions. The witness had four prior felony convictions for theft, aggravated assault and armed robbery. The trial court limited the defense to asking simply if the witness had a prior felony conviction, without even specifying the number or nature of the offenses. This was an improper limitation on the defendant’s right to present evidence pursuant to Rule 609 to impeach the witness.

United States v. Sheffield, 992 F.2d 1164 (11th Cir. 1993)

A witness may be cross-examined about a prior failure to make a statement which was consistent with the statement made at trial. That is, a prior failure to implicate the defendant in a statement made by the witness is the proper subject of cross-examination.

United States v. Lankford, 955 F.2d 1545 (11th Cir. 1992)

The defendant, the Sheriff of Fulton County, Georgia, was on trial for extortion and filing false tax returns. One of the prosecution’s witnesses had two sons who had been charged in the state with selling marijuana. The defense sought to cross-examine the witness about his sons to show a possible motive or bias. The trial court’s preclusion of this topic of cross-examination was reversible error. The fact that there was, in fact, no deal does not foreclose the admissibility of this line of inquiry, for it is the witness’s perception and personal motive, not the actual existence of a deal which is probative. Furthermore, the fact that the son had already been prosecuted and sentenced was not determinative, because there could have been a separate federal prosecution. “A reasonable juror could have concluded that [the witness’s] testimony was the result of his desire to protect his sons and to obtain federal assistance in avoiding a subsequent federal prosecution against them.”

United States v. Williams, 954 F.2d 668 (11th Cir. 1992)

The trial court committed reversible error by excluding evidence about the amount of reward money received by the informant. Incredibly, the trial court held that the amount of money given to the informant (nearly $450,000) was so obscene (he was given 25% of all assets seized in connection with his deals), that it would prejudice the government to allow this evidence to be heard by the jury. The Eleventh Circuit holds that it is precisely for this reason that the evidence is admissible: “The jury has the right to know what may be motivating a witness, especially a government paid, regularly employed, informant-witness. If the amount paid an informant is felt by the government to be too prejudicial for an American jury to hear about, the solution is for the government to make reasonable payments; the solution is not for the court to rule the evidence irrelevant as too prejudicial.”

United States v. Cohen, 888 F.2d 770 (11th Cir. 1989)

One of the government’s key witnesses was a former business partner of the defendants who testified that they were engaged in a tax fraud scheme. The defense sought to cross-examine the witness and demonstrate that he had previously engaged in fraudulent acts unbeknownst to the defendant. The trial court excluded the evidence. The defendants argued that the evidence was admissible under Rule 404(b): The evidence of the witness’ other crimes, wrongs or acts demonstrated his ability to concoct and manage a fraudulent scheme without the knowledge of the defendants. This case is significant in recognizing that Rule 404(b) can be applied against a government witness, not just a criminal defendant.

Brown v. Dugger, 831 F.2d 1547 (11th Cir. 1987)

A police officer testified about the statements of a third party. Defense counsel sought to cross-examine that officer in a way to demonstrate bias on the part of that third party declarant. The trial court prohibited this mode of cross-examination of the officer. This was error of constitutional dimensions and required reversal.

United States v. Smith, 77 F.3d 511 (D.C.Cir. 1996)

In the context of considering a Brady challenge to a conviction, the D.C. Circuit held that evidence of a witness’s prior psychiatric history may be admissible to impeach the witness. Therefore, the district court should have reviewed the medical records to determine if the witness’s medical condition was the proper subject of cross-examination.

United States v. Shyllon, 10 F.3d 1 (D.C.Cir. 1993)

The defendant claimed that the prosecution witnesses had been intimidated by the investigator into testifying against him. In support of this argument, he sought to call a potential prosecution witness, who did not testify for the government, and elicit testimony that the investigator threatened him, too. The defendant also tried to cross-examine the investigator about his threatening that non-testifying witness. The trial court erroneously excluded the testimony and the cross-examination. If the investigator intimidated that potential witness, it would make it more likely that he intimidated the other witnesses; therefore, the testimony was relevant under Rule 401. Harmless error.

United States v. Foster, 982 F.2d 551 (D.C.Cir. 1993)

A police officer was a witness to several drug sales by the defendant. At the preliminary hearing, the officer made no mention of seeing the defendant give the proceeds to anybody. When the defendant was arrested, he had no cash on him. At trial, however, the police officer testified that he observed the defendant give the sales proceeds to another individual after each sale. The defense sought to cross-examine the officer about why he did not testify about this at the preliminary hearing. The trial court’s ruling curtailing this topic of cross-examination was reversible error. Moreover, even though the officer’s written report was introduced – and it, too, was silent about where the proceeds went – the defense should have been permitted to question the officer about his prior sworn testimony. (Majority opinion authored by Judge, now-Justice Ruth Bader Ginsburg).

United States v. Stock, 948 F.2d 1299 (D.C.Cir. 1991)

The defendant sought to impeach a police officer with a prior statement of his which did not contain the same allegations as his courtroom testimony. Prior statements that omit details covered at trial are inconsistent if it would have been “natural” for the witness to include them in the earlier statement. The judge’s error in denying this cross-examination prevented defense counsel from arguing that the officer had a poor memory or was fabricating parts of his story in order to ensure a conviction. Harmless error.

United States v. Pryce, 938 F.2d 1343 (D.C.Cir. 1991)

The trial court erred in prohibiting defense counsel from cross-examining a prosecution witness about hallucinations the witness suffered prior to the time of the transaction about which the witness was testifying. Limiting the cross-examination to the month of the transaction was an improper restriction. The defense attorney decided not to ask about hallucinations during that month, fearful that the witness would deny hallucinations at that time and the defendant would not be able to impeach the witness with the psychiatric report he had obtained for the prior months. The defendant’s decision not to ask the question about the particular month did not waive the issue as to the trial court’s error in preventing the attorney from asking about the prior months.

United States v. Anderson, 881 F.2d 1128 (D.C.Cir. 1989)

Murder charges against a prosecution witness had been dismissed recently, but could have been revived. The defense sought to cross-examine the witness with regard to these charges. The trial court’s exclusion of the evidence was a violation of the defendant’s right to confront the witness and demonstrate possible motives for fabrication or exaggeration.