Federal Evidence Review

In kidnapping prosecution, during defense cross-examination about the victim’s inability to recall certain details and statements made to a nurse and after the victim started crying, the trial judge's order to defense counsel to "move on" did not violate the defendant's Confrontation Clause rights; alternatively, any error was harmless beyond a reasonable doubt, in United States v. Wilcox, __ F.3d __ (5th Cir. Jan. 20, 2011) (No. 09-10950)

Pressing a witness on their inability to recall events or inconsistencies on details provided by another witness can provide fruitful areas for cross-examination. At what point does the inability to pursue these issues violate the Confrontation Clause? Are the details of any consequence in the case? These issues were recently raised in in a case considered by the Fifth Circuit.

In the case, defendant Wilcox had told the parents of three minor children that he would take the children to a theme park. Instead, he took the children into the woods for a few days and had them help him find “a million dollars buried in the woods.” The defendant told the children about “his friends in the area and their proclivity to torture, kill and cannibalize girls.” He said “his friends wanted to buy the two girls; and, that the only way to escape was to kill or be killed.” The defendant asked one minor “if she was willing to die or become a sex slave, and explained that his friend wanted to make sex slaves of the two girls.” Wilcox, _ F.3d at _.

On the fourth day, the defendant was arrested. He was charged with kidnapping. At trial, during the cross-examination of one of the minor victims, J.B., a 12-year old girl, defense counsel pressed her about her inability to recall certain details. The witness began to cry on the stand. The trial judge directed defense counsel to “move-on.” After his conviction, on appeal the defendant claimed the trial judge interfered with his Sixth Amendment rights under the Confrontation Clause.

The Fifth Circuit concluded there was no violation of the Confrontation Clause. The details under cross-examination did not have a significant role in the offense. As the circuit explained:

The thrust of Wilcox’s Confrontation Clause complaint arises out of J.B.’s inability to recall if she saw a hook as a means of torture during the trip and her confusion surrounding the inability to remember whether she told an examining nurse, upon reunification with her parents and authorities, if Wilcox had sexually abused her. A review of the transcript reveals that the district court only directed defense counsel to 'move-on' after J.B. started crying, presumably out of distress, because of her inability to remember the details of a 'hook,' and what (small) role it played in this bizarre expedition.

In assessing whether the Confrontation Clause was violated, the defendant did not “show that a reasonable jury might have had a significantly different impression of witness credibility if defense counsel had been allowed to pursue the questioning.” Wilcox, _ F.3d at _ (citing United States v. Maceo, 947 F.2d 1191, 1200 (5th Cir. 1991) (noting “the jury would not have received a significantly different impression of Martinez's credibility if Cary's lawyer were allowed to continue questioning Martinez about his plea bargain because the jury was well aware of the terms of Martinez's plea”); see also Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (noting “the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish”)) .

Alternatively, the circuit noted that the “error, if any at all,” was “utterly” harmless. The Confrontation Clause argument based on what the circuit described as “twin issues of compelling immateriality is inconsequential.” Wilcox, _ F.3d at _. While the minor’s “testimony as one of three kidnapping victims was critical,” the trial judge asked defense counsel “to move past an insignificant issue” which “was inconsequential, and thus harmless.” The “material facts” were not in question. Wilcox, _ F.3d at _ (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (listing factors in determining whether any error was harmless beyond a reasonable doubt)). Additionally, the evidence of guilt was overwhelming and included corroborative testimony by two other victims.

The Wilcox case demonstrates two levels of analysis in determining whether limits on cross-examination violate the Confrontation Clause. First, on the merits, was an effective opportunity for cross-examination provided? Did the jury have a meaningful opportunity to assess witness credibility without the proffered area of cross-examination? In other words, if the questions had been asked was there any material consequence. On the second level, if there was error, or assuming error, was it harmless beyond a reasonable doubt.