arresting officer called by defendant not an adverse witness subject to cross-examination
How later courts described this case
- arresting officer called by defendant not an adverse witness subject to cross-examination
Written by the judges who cited it.
The opinion
SIMPSON, Circuit Judge
(dissenting).
In this non-jury trial the defendant’s sole defense was that the arresting officer had no probable cause to make the arrest and therefore the subsequent search was not incidental to a lawful arrest and invalid. The defendant’s position is that the arrest was a sham.
In a hearing upon a motion to suppress a warrantless search under Rule 41, F.R. Crim.P., the government has the burden of proving that there was probable cause for the arrest. United States v. Jeffers, 1951, 342 U.S. 48, 51 , 72 S.Ct. 93, 95 , 96 L.Ed. 59 ; Williams v. United States, 5 Cir. 1967, 382 F.2d 48 ; Cervantes v. United States, 9 Cir. 1959, 263 F.2d 800 ; 3 Wright, Federal Practice and Procedure, Federal Rules of Criminal Procedure, Sec. 675.
It was vital to the defense that Stamps should have been allowed unrestricted and searching cross-examination of Officer Sayre regardless of who called him to the stand. He was the government’s, not Stamps’ witness. It is difficult to imagine a witness more adverse to the interests of a defendant questioning the *38 legality of a search than the very police officer who is trying to justify the arrest and search.
I cannot improve on the language of the Second Circuit when it referred to a similar but not identical trial situation in United States v. Freeman, 2 Cir. 1962, 302 F.2d 347 , 351:
“When a defendant calls government agents to the stand in an effort to establish some part of his defense he should be given every reasonable leeway in bringing out whatever may be relevant to the issues before the jury. It is pointless to require a showing, such as the trial judge indicated might be necessary, that such witnesses are hostile.
“The agents were adverse parties within the meaning of Rule 43(b) of the Federal Rules of Civil Procedure, 28 U.S.C., which permits such witnesses to be cross-examined, asking leading questions, and generally impeached. Although there is no companion provision in the Federal Rules of Criminal Procedure, there is even more reason for permitting such a practice in criminal cases where every proper means of ascertaining the truth should be placed at the defendant’s disposal.
“We do not limit our repudiation of the pernicious rule against impeachment of one’s witness to instances in which the witness is an ‘adverse party’ or ‘hostile’. The search for truth is not to be confined by any such limitation, and, as Professor Morgan has aptly said:
‘The fact is that the general prohibition, if it ever had any basis in reason, has no place in any rational system of investigation in modern society and all attempts to modify or qualify it so as to reach sensible results serves only to demonstrate its irrationality and to increase the uncertainties of litigation’. I Morgan, Basic Problems of Evidence, page 64 (1954 Ed.).”
Further, I disagree with the majority’s statement that the excluded questions called for legal conclusions. To the contrary, the questions were an entirely legitimate endeavor to determine the grounds for Officer Sayre’s belief that he had probable cause to make the arrest and subsequent search. Probable cause was, of course, as shown above, the primary issue in the inquiry into the legality of the warrantless search.
With the majority’s analysis of the issue as to interference with an officer’s investigation, I express no quarrel, but I would reverse and remand for a new trial on the clearly demonstrated basis of the trial court’s prejudicial limitation of examination of the witness Sayre.
With deference, I dissent.