Distinguishing The Sixth Amendment Right To Confront A Witness From the Fifth Amendment Right To Present A Defense

In a drug conspiracy prosecution, the defendants’ Sixth Amendment Confrontation Clause rights were not implicated by the failure of the court to order discovery of information about an opposing witness that might be useful to the defense; however the failure could, to the extent it withheld potentially impeaching evidence about a prosecution witness, implicate the defendants’ rights under the Due Process Clause of the Fifth Amendment to present a defense, in United States v. Wilson, 605 F.3d 985 (D.C. Cir. May 25, 2010) (Nos. 06-3128, 06-3131, 06-3133, 06-3136, 06-3140) (per curiam)

Five defendans were convictd in a large drug conspiracy. On appeal, one of their multiple grounds for appeal involved their argument that their cross-examination of the government’s key witness (Officer Leftridge) was improperly limited in violation of their rights under the Confrontation Clause of the Sixth Amendment. They objected to the trial judge’s restriction of their cross-examination of the undercover officer concerning an “ongoing investigation” that the police department was making of the officer. One aspect of the defendants multiple objections to the court’s limitation of examination of the witness, was their allegation that it improperly failed to order the prosecutor to disclose to the defendants “the subject matter of the investigation of Leftridge,” and as a result they were unable to develop evidence to confront the witness.

The D.C. Circuit found that no Confrontation Clause error resulted from the trial court’s decision not to order disclosure of the subject of the police investigation of the witness. The circuit noted one theoretical and three practical reasons that the defendants’ rights were not implicated by the trial court’s failure to order disclosure of the subject of the investigation of the witness. The theoretical reason was that the failure of disclosure did not implicate the Sixth Amendment Confrontation Clause, but rather the Fifth Amendment Right to Present a Defense under the Due Process Clause:

“[T]he withholding of potentially relevant impeachment evidence does not implicate the Confrontation Clause in the sense of ‘any direct restriction on the scope of cross-examination.’ Instead, ‘the constitutional error, if any,’ involves ‘the Government’s failure to assist the defense by disclosing information that might have been helpful in conducting the cross-examination.’ This latter duty arises under the Due Process Clause of the Fifth Amendment. As a plurality explained in Pennsylvania v. Ritchie, 480 U.S. 39 (1987), the Confrontation Clause did not create ‘a constitutionally compelled rule of pretrial discovery’ of information that might be useful to the defense in preparing for trial. Id. at 52. Instead, ‘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.’ This court has adopted the plurality’s holding.”

Wilson, 605 F.3d at 1004.

Looking at the appeal as a case of non-disclosure, the circuit still rejected the claim that the trial court erred in not ordering the disclosure of the subject matter of the investigation of the witness. This information would not have been useful to the defense for several reasons. First, the defendants would not have been able to cite the information at trial because “the undisclosed information would not have been admissible at trial, and appellants do not maintain that their knowledge of it could have led to admissible evidence.” Wilson, 605 F.3d at 1005.

Second, the circuit rejected that the argument that te defendants could have used the information about the subject of the investigation to impeach the witness under FRE 608(b). That rule allowed for the introduction of “specific instances of conduct” of the witness for the purpose of attacking the witness’s character for truthfulness. Such evidence is admissible only if the court decides that the evidence was “probative of truthfulness or untruthfulness.” The circuit rejected that this happened in the defendants’ case. “Although the defense might have sought to use the undisclosed information about the subject matter of the investigation to impeach Leftridge pursuant to Federal Rule of Evidence 608(b),” the circuit noted:

“the district court would properly have ruled such cross-examination improper because the subject matter of the internal investigation [REDACTED] would not have been probative of Leftridge’s truthfulness. Without additional evidence of wrongdoing beyond bald assertions [REDACTED], impeachment would have been based on unproven allegations.”

Wilson, 605 F.3d at 1005 (citing United States v. Morrison, 98 F.3d 619, 628 (D.C. Cir. 1996) (“the mere filing of a complaint [against a witness] is not probative of truthfulness or untruthfulness.”))

Third, the circuit also rejected the claim that:

“had the defense sought admission of the subject matter of the investigation pursuant to Federal Rule of Evidence 404(b) to show Leftridge’s motive or bias, it is difficult to understand how the subject matter, rather than the fact of the existence of the investigation, would have assisted in portraying Leftridge as biased. Appellant William Simmons’ counsel cross-examined Leftridge about her suspension without pay and the suspension of her police powers as a result of the ongoing investigation, eliciting her admission to the suspension but also her denial of knowledge of the basis for the investigation. Presumably, based upon her suspension, Leftridge could have been motivated to testify falsely against appellants in order to curry favor with the government. But the fact that she was being investigated at all provided that potential motive. Even assuming information about the subject matter of the investigation was probative of bias, the district court would properly have excluded cross-examination pursuant to Rule 403 because “its probative value [wa]s substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403. As the district court concluded, the “prejudice to this officer given the uncertainty of the [allegations] is quite high, the prejudice to her career and her credibility is quite high.” Mar. 27, 2006 Ex Parte Tr. at 10. That risk of prejudice would have substantially outweighed the minimal probative value of the evidence.”

Wilson, 605 F.3d at 1006.

Although the failure to order the disclosure in Wilson did not implicate either the defendants’ Fifth or Sixth Amendment rights, the circuit did find that the trial court’s action with regard to disclosure of a redacted matter did violate the defendants’ rights, but that the error was harmless.

Federal Rules of Evidence