Federal Evidence Review

In cocaine conspiracy trial, limitation of defendant’s ability to cross-examine a cooperating witness regarding expected benefits from testifying in defendant’s case closed off the defendant’s ability to probe the witness’s bias and violated the defendant’s Sixth Amendment Right to Confrontation; as the witness’s testimony was proffered as evidence of the defendant’s link to the charged cocaine conspiracy but provided no new information on this other than what had already been properly admitted, the error was harmless beyond a reasonable doubt, in United States v. Martin, __ F.3d __ (7th Cir. Aug. 24, 2010) (Nos. 07-2272, 07-3893, 07-3940, 07-4010, 08-3265)

FRE 611 states that the trial judge may reasonably “control … the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.” FRE 611(a). A rather treacherous danger in limiting cross-examination in criminal cases is the possibility a limitation will violate a defendant’s Sixth Amendment Right to Confrontation. Recently, the Seventh Circuit reviewed a challenge to the trial judge’s limits on cross-examination of a cooperating witness for grounds of bias. The case illustrates the care that appellate courts may take when there is an appeal that a defendant was denied Confrontation Rights by limiting his cross-examination of a witness for bias.

In the case, defendants Martin, Bell and Terrell were convicted in a cocaine conspiracy prosecution. During their trials, the trial judge limited their cross-examination of a cooperating witness (Rudy) who had been a member of the charged conspiracy and managed a drug spot. The witness had been named as a defendant in the indictment of the defendants. Pleading guilty, the witness made a cooperation plea agreement with the prosecutor to testify against the defendants in exchange for a reduced sentence recommendation.

At the defendants’ trial, the defense informed the trial judge that it “intended to cross-examine [cooperating witness] Rudy about his involvement in a pending state murder investigation … in Maywood, Illinois.” Defense counsel knew that, when Rudy was arrested by federal agents for his role in the charged conspiracy, “the Government had made Rudy available” to state police for questioning and counsel “believed that Rudy had given a statement” regarding his role in the murder the state was investigating. In this light, “[d]efense counsel asked the district court to permit cross-examination of Rudy about whether he expected to receive any benefit in the state murder investigation in return for giving testimony” in the defendant’s federal drug conspiracy trial. The prosecutor opposed this request, arguing that there had been no arrangement regarding his cooperating in the state investigation and in any case, if called, the witness would invoke his Fifth Amendment Privilege Against Self-Incrimination. The trial judge decided to “permit[ ] a voir dire of Rudy to determine whether he intended to testify about” the state investigated murder “and whether he expected to receive any benefit in that case in exchange for his cooperation in the federal action.” Martin, _ F.3d at _.

At trial, the judge made a series of intrusions into the voir dire of the cooperating witness, which the defendants contended on appeal had limited their ability to cross-examine the witness about possible bias arising from the state murder investigation. Absent certainty about the existence of evidence on this, the court decided to preclude presenting the jury with evidence that the witness “was biased in favor of the prosecutors because of his desire to secure their assistance” in the pending state murder investigation. Specifically, the defendants contended that the trial judge’s interference in their cross-examination of the witness prevented them from establishing:

“1) that [Rudy] was suspected of murder in state court; 2) that [Rudy] had not yet been prosecuted for that murder; 3) that [Rudy] was first informed of that murder investigation immediately following his arrest by the federal government in this case; 4) that the federal authorities delivered [Rudy] to the state officials for interrogation regarding that murder; 5) that [Rudy] had made a statement to state authorities admitting his involvement in the murder; and 6) that [Rudy] was never prosecuted for the murder to which he confessed after he began cooperating with federal authorities.”

Martin, __ F.3d at __ (citing Appellant’s Briefs)

The defendants were convicted and they appealed, contending in part that by preventing questioning on these matters, the defense was unable to probe “an entire source of bias” before the jury. The Seventh Circuit agreed and concluded that the trial judge had erred in limiting the cross-examination of the cooperating witness, violating the defendants’ constitutional right to “be given an opportunity for effective cross-examination.” Martin, __ F.3d at __ (citing Pennsylvania v. Ritchie, 480 U.S. 39, 51-53 (1987); Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986)).

The circuit found that the matters the defense sought to explore fit the definition of “[b]ias … a term used in the ‘common law of evidence’ to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party.” Cross-examination regarding a witness’s bias “directly implicates the Sixth Amendment,” the circuit noted. Martin, __ F.3d at __ (citing United States v. Abel, 469 U.S. 45, 52 (1984) (“Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony.”); United States v. Recendiz, 557 F.3d 511, 530 (7th Cir. 2009) (“A core value [of the Sixth Amendment] is the ability to expose a witness’s motivation for testifying, his bias, or his possible incentives to lie.”))

The circuit found that the defendants’ appeal was clearly meritorious:

“We believe that the situation before us today clearly implicates the defendants’ rights to meaningful cross-examination with respect to witness bias. The Government had made Rudy available to state prosecutors for questioning about the Maywood murder. Rudy conceded that he had given a statement to those prosecutors with respect to that murder and that he never was charged with that murder. He denied the existence of a quid pro quo with the state or federal prosecutors. The district court took the view that the Maywood murder was ‘unrelated’ to the issues on trial.

“We respectfully take a different view from the one taken by our colleague in the district court. Upon examination, the record makes clear that defense counsel sufficiently articulated a link between Rudy’s involvement in the pending state murder investigation and his testimony in the federal action. The conceded facts that Rudy was interrogated by state investigators soon after he was arrested, that he gave a statement about the murder … and that he might have been charged with the murder-a serious offense that carries a severe punishment-could have been linked to Rudy’s decision to cooperate with the Government in this action. We believe the established facts were probative of Rudy’s possible bias. He had been implicated in the murder, he had been subject to the investigation, he had not been charged and there was no indication that the investigation was closed.”

Martin, __ F.3d at __.

This situation demonstrated that the possibility of prosecution of the cooperating witness “was not so speculative as to make defense counsel’s attempt to demonstrate it fall outside the guarantee of the Sixth Amendment.” The circuit noted that “[a] bias theory may be so speculative that a court would be entitled to preclude its admission under Rule 403,” but that was not applicable in the defendants’ case since “although Rudy’s bias was denied by the Government and Rudy himself, the defendants articulated a reasonable argument to the contrary. The timing, nature and status of the Maywood murder investigation was probative of bias and the defense had the right to explore it fully and allow the jury to draw its own conclusions.” As a result, the circuit concluded “that the questions that the defendants were not permitted to ask were directly relevant to the jury’s assessment of Rudy’s possible bias. Accordingly, the restriction of the defendants’ cross-examination of Rudy violated their rights under the Sixth Amendment.” Martin, __ F.3d at __.

Despite the constitutional error, the defendants were not entitled to relief on this basis. The reason was that the error in limiting their cross-examination was harmless beyond a reasonable doubt. In reaching this conclusion, the circuit applied a test that explored “factors such as the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of corroborating or contradictory evidence and the overall strength of the prosecution’s case.” Martin, __ F.3d at __ (citing United States v. Smith, 454 F.3d 707, 715 (7th Cir. 2006) (“The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.”) (citation omitted)) “After a thorough examination of the record,” noted the circuit as it concluded its discussion of the issue, “we are convinced that Rudy’s testimony contributed little, if any, new information for the jury’s consideration and that its corroborative value to the Government’s overall effort to convict … was, at best, minimal. We are convinced beyond a reasonable doubt that the Confrontation Clause error was harmless.” Martin, __ F.3d at __.