Defendant was given “the widest possible latitude to crossexamine” the witness but chose not to exercise it for tactical reasons, in United States v. Contreras, 536 F.3d 1167 (10th Cir. Aug. 18, 2008) (No. 07-2145)
As the Supreme Court has noted, the Confrontation Clause guarantees the defendant “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 18-20 (1985) (emphasis added). A recent Tenth Circuit case underscores that “opportunity” is the operative word.
Contreras case involved another bank robbery case where the central issue concerned the identity of the bank robber depicted in the surveillance photo. The defense raised questions about the teller’s identification by impeaching her. One key piece of evidence was the surveillance film taken during the robbery. The defendant’s probation officer had identified the defendant after seeing the photograph in a flyer. The defense motion to exclude the probation officer’s lay opinion identification was denied. The probation officer testified but did not reveal her position. After the probation officer testified on direct examination, defense counsel declined to cross-examine the witness “because he could not effectively cross-examine” the probation officer. Contreras, 536 F.3d at 1169. After the defendant was convicted, he claimed his Confrontation Clause rights were violated.
The circuit dismissed the Confrontation Clause challenge. The trial court did not impose any limitations on the defense cross-examination. In contrast, the trial court disallowed the government from disclosing the probation officer’s position to the jury to avoid possible unfair prejudice. As the circuit point out, defendant “Contreras received the widest possible latitude to crossexamine” the probation officer. Contreras, 536 F.3d at 1172.
The tactical decision (for whatever) to pass an opportunity to cross-examine the witness on the stand did not violate the Confrontation Clause.
Comments
Post new comment