Circuit Consensus: Third Circuit Joins Five Others In Applying The "Full and Fair" Opportunity Confrontation Clause Standard

On federal habeas review, Third Circuit finds no violation of the prisoner's Sixth Amendment confrontation rights during his third trial on homicide charges by reading the testimony of incriminatory statements from a witness who was no longer available but had testified during the petitioner's second trial; at the third trial, the petitioner was unable to confront the witness with newly found evidence suffesting that the confession story was fabricated; there was no violation of the confrontation clause right to a full and fair opportunity to cross-examine the witness when the limitations are not imposed by the trial court or by statute, in Ross v. District Attorney of the County of Allegheny, __ F.3d __ (3d Cir. March 6, 2012) (No. 10-1320)

The Supreme Court has held that the Confrontation Clause requires that a defendant have “a full and fair opportunity to probe and expose [testimonial] infirmities” of unavailable government witnesses in order for that witness's prior testimony to be admissible. United States v. Owens, 484 U.S. 554, 558 (1988). But how far does a "full and fair opportunity" reach? The Third Circuit recently identified and joined the Sixth, Seventh, Eighth, Eleventh and D.C. Circuits in concluding that limitations on confrontation that "cannot be attributed to any decision by the court, or statutory limitation on the scope or nature of ... cross-examination" satisfied Confrontation Clause requirements. The Sixth Amendment only guarantees a defendant “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Kentucky v. Stincer, 482 U.S. 730, 739 (1987) (quoting Delaware v. Fensterer, 474 U. S. 15, 20 (1985) (per curiam)).

In the case, petitioner Ross was convicted in a third state court trial for third degree murder. On federal habeas review, he argued that his Confrontation Clause rights were violated bsed on the state's use of "prior testimony from an unavailable government witness," even though the petitioner "did not have the opportunity to cross-examine the witness with newly-discovered impeachment evidence." On his appeal of the denial of federal habeas relief, the Third circuit acknowledged that "there were other constitutional avenues by which a defendant might introduce such newly-discovered evidence," but one was not by a Confrontation Clause challenge that the petitioner was denied a "full and fair" opportunity to cross-examine a witness, resulting from limitations not imposed by the trial court or by statute.

The Third Circuit probed whether the prisoner received during his trial "a prior opportunity for cross-examination" of the impeaching witness when that witness became unavailable at his third trial. The circuit noted several Supreme Court Cases that guided the matter, including:

  • Delaware v. Fensterer, 474 U.S. 15, 19 (1985)(Confrontation Clause was not violated where “the trial court did not limit the scope or nature of defense counsel's cross-examination in any way.”).
  • United States v. Owens, 484 U.S. 554, 558 (1988) (Sixth Amendment provides “a prior opportunity for cross-examination.”)
  • Pennsylvania v. Ritchie, 480 U.S. 39, 53-54 (1987) (The Confrontation Clause is concerned primarily with “specific statutory or court-imposed restriction[s] at trial on the scope of questioning.”)

The Third Circuit's resolution of prisoner Ross's appeal of denial of his habeas petition was to find it was "simply not a cognizable Confrontation Clause claim." The circuit noted that in reaching this result, it "...agree[d] with our sister circuits." At least five other circuits had noted that there was no denial of the Sixth Amendment right to a “full and fair opportunity” to cross-examine a witness, even for the purpose of impeaching that witness, where there were no “specific statutory or court-imposed restriction[s] ... on the scope of questioning” at the challenged trial. The Constitution guaranteed only an “opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Ross, __ F.3d at __ (citing Kentucky v. Stincer, 482 U.S. 730, 739 (1987) (quoting Fensterer, 474 U.S. at 20)).


The Third Circuit identified the following circuits and cases as reflecting the interpretation of the Confrontation Clause that it was applying to deny Ross habeas relief:

  • Sixth Circuit - Middlebrooks v. Bell, 619 F.3d 526, 542 (6th Cir. 2010) (noting that where “the trial court permit[s a defendant's] attorney to cross examine [a witness] with no limitations aside from routine evidentiary rulings, it [does] not impinge on his confrontation rights”)
  • Seventh Circuit - Rizzo v. Smith, 528 F.3d 501, 506 (7th Cir. 2008) (noting that the right to confrontation "is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination’“)
  • Eighth Circuit - United States v. Watson, 650 F.3d 1084, 1088 (8th Cir. 2011) (declining to find a Confrontation Clause violation where a defendant's inability to cross-examine a witness on a particular point was not attributable to the trial court))
  • Eleventh Circuit - Dorsey v. Chapman, 262 F.3d 1181, 1190 (11th Cir. 2001) (No Confrontation Clause violation where the defendant “was not prohibited from pursuing any line of inquiry, but strategically chose not to”)
  • D.C. Circuit - United States v. Mejia, 448 F.3d 436, 458 (D.C. Cir. 2006) (Prevent improper restrictions on the types of questions that the defense "may ask during cross-examination“ is also a feature of implementing the right to confrontation)

While joining these circuits in assessing constitutional limitations on the scope of cross-examination, the Third Circuit cautioned about the limited nature of its decision in Ross:

Our holding today is limited to the case before us. We hold only that Ross was not denied his Sixth Amendment rights under the Confrontation Clause where Ross's inability to cross-examine [witness] Erwin [as to defendant's alleged confession] about [impeaching witness] Thornton's testimony cannot be attributed to a limitation imposed by the trial court or by statute. Ross had a full and fair opportunity to cross-examine Erwin at the second trial within the meaning of the Sixth Amendment. His Confrontation Clause rights were not violated when Erwin's prior testimony was read into the record at his third trial.
Ross, __ F.3d at __.

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