En Banc Ninth Circuit Resolves Intra-Circuit Split on Standard of Review in Confrontation Clause Challenges

In United States v. Larson, case no. 05-30076 (August 1, 2007), an en banc Ninth Circuit court resolves a 3-way intra-circuit split on the standard of review to apply in Confrontation Clause challenges. Citing one line of Ninth Circuit cases applying de novo review, another reviewing for abuse of discretion, and a third applying a “combination” of these two standards, the courts states that it is adopting the last of these, but its analysis seems less than clear to this reader . . .

We resolve this conflict by concluding that the third approach is most appropriate. We hold that the following approach should be used to review whether a trial court improperly restricted a defendant from cross-examining a prosecution witness: If the defendant raises a Confrontation Clause challenge based on the exclusion of an area of inquiry, we review de novo. In reviewing a limitation on the scope of questioning within a given area, we recognize that “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such crossexamination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). A challenge to a trial court’s restrictions on the manner or scope of cross-examination on nonconstitutional grounds is thus reviewed for abuse of discretion.

(Footnote omitted.)

I think the court confuses matters with this wording. On its own, it suggests two mutually exclusive dichotomies.

First, a dichotomy between constitutional and nonconstitutional challenges. De novo review would apply to the former and review for abuse of discretion to the latter.

Second, a dichotomy between Confrontation Clause challenges based on the complete exclusion of an area of inquiry, and Confrontation Clause challenges based on limited questioning into an area of inquiry. Again, de novo review would apply to the former while the latter would be reviewed only for abuse of discretion.

It seems clear that the second dichotomy is the intended approach:

Applying this approach here, Defendants’ Confrontation Clause claims challenge the district court’s limitation on the scope of cross-examination within an area of inquiry: the biases and motivations to lie of the Government’s cooperating witnesses, Poitra and Lamere. We therefore review Defendants’ claims for abuse of discretion.

(Emphasis added.)

Yet this last statement seems hard to reconcile with the court’s explanation that the split standard it adopts “recognizes that whether there has been a Confrontation Clause violation is ultimately a question of law that must be reviewed de novo.” If it is ultimately a question of law, then how can review for abuse of discretion ever apply?

Perhaps one way to reconcile these statements is to view the opinion, in cases of limitations on examination rather than exclusion of examination, as an application of the more general principle that a discretionary trial court ruling constitutes an abuse of discretion if based on an incorrect legal conclusion. Here, the incorrect legal conclusion (as to one witness, anyway) was that a Confrontation Clause violation would not result from the court’s limitation of cross-examination. Since the Ninth Circuit finds that such a violation did occur, it concludes that the district court abused its discretion in limiting cross-examination.

The net effect of the court’s opinion appears to be the same as if it had simply adopted a straight de novo standard for all Confrontation Clause challenges. Whether it subjects the challenge to de novo review in the first instance or evaluates the existence of a Confrontation Clause violation in order to determine whether the district court abused its discretion, the court is effectively applying de novo review.

These are only my initial impressions of the opinion, so maybe I am missing something that would be obvious after more careful reading. I remain open to persuasion, and would be very interested in any comments from people who feel differently about the case.

I’ll also be interested to see what Split Circuits and The Confrontation Blog have to say about it.

UPDATE (8/3/07): I’ve put up a new post with links to three other blogs discussing the case.

UPDATE (8/3/07) #2: Make that four other blogs.