# Lawrence D. Coleman v. The Honorable Arthur L. Burnett, United States Magistrate for the District of Columbia > Court of Appeals for the D.C. Circuit · March 14, 1973 · 477 F.2d 1187 URL: https://www.frixlaw.com/law-library/cases/9459459 ## Case - **Full name:** Lawrence D. COLEMAN Et Al., Appellants, v. the Honorable Arthur L. BURNETT, United States Magistrate for the District of Columbia, Et Al. - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** March 14, 1973 - **Citations:** 477 F.2d 1187; 155 U.S. App. D.C. 302; 1973 U.S. App. LEXIS 11145 - **Precedential status:** Published - **Opinion:** Concurring in part by Fahy - **Judges:** Fahy, McGOWAN, Robinson - **Cited by:** 112 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9459459 ## How later opinions describe it (automated extraction) - noting that “[i]n Chapman it was held that before a federal constitutional error can be held ‘harmless,’ the court must be of the belief that it was harmless beyond a reasonable doubt [and] must find that there is no reasonable possibility that the error complained of might ha… ## Opinion text FAHY, Senior Circuit Judge, concurring in part and dissenting in part: I concur in Part I (the Coleman case) of Judge Robinson’s very careful and scholarly opinion. I also concur in Part III (Dancis’ appeal). As to Part II (Shepard’s appeal) I am of a different view. I think the cross-examination of the principal government witness was unduly restricted at the preliminary hearing. Unless subsequent events which are not considered by the court should lead to a different disposition of his case, I think he is entitled to a supplemental preliminary hearing. I accept the position that the purpose of the preliminary hearing was to determine probable cause and not to obtain discovery, but the effort of defense counsel in the cross-examination was to elicit testimony which bore upon the issue of probable cause. Shepard had been identified by the principal government witness as the one who had made the involved assault upon him. The magistrate explicitly recognized that the cross-examination was designed to impeach this witness. Defense counsel was endeavoring to show a situation of pandemonium in a cellblock, in which the officer’s identification of Shepard as the one who attacked him might have been mistaken due to a general melee following racial slurs and an attack upon Shepard himself, who was felled and rendered unconscious with a fractured skull. Moreover, in the cross-examination counsel was not only seeking to test the credibility of the complaining witness but, in a good faith and intelligent, lawyer-like manner, was seeking to bring before the magistrate a fair exposition of what occurred, which had by no means been adequately developed by the government’s witnesses. Thus, after being repeatedly rebuffed, counsel stated: MR. AXELROD [defense counsel]: If I could show in this preliminary hearing, Your Honor, that the reason this charge was brought was to cover up a wrongful assault on Mr. Shepard, and you would let me go into some of these questions as to who made the *1213 decision to charge and what Marshal Lonien [the complaining witness being examined] did afterwards, I think I could prove to Your Honor right now, before the case goes over to the District Court, that an assault didn’t take place and this was a cover up. (P. 26 of Transcript of Preliminary Hearing.) THE COURT: Sir, you have heard what I said as to limitations I am placing on the evidence that will be admitted on this preliminary hearing. Within the scope of those limitations, you may proceed. The limitations in my opinion deprived the defense of a fair opportunity to probe the issue of probable cause as contemplated by Rule 5, F.R.Crim.P. It is clear that in seeking to impeach a witness on cross-examination counsel may question him on matters affecting credibility, including his lack of knowledge or perceptive capacity, his bias or his adverse interest in the litigation, and including also any prior inconsistent statements or acts. Rule 611(b) of the proposed new Rules of Evidence explicitly grants the right to go beyond the scope of the direct in cross-examination of a witness in a jury trial, with discretion in the judge as indicated: A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interests of justice, the judge may limit cross-examination with respect to matters not testified to on direct examination. Here the witness was the complaining witness, and the cross-examination was not before a jury during a trial but before a judge at a preliminary hearing, during which both hearsay and otherwise inadmissible evidence may be presented. Rule 5.1, F.R.Crim.P., effective October 1, 1972. The overly restrictive limitations imposed upon counsel are not in keeping with these developments. Moreover, “discovery” by the time-honored method of seeking the truth— proper cross-examination — provided at a preliminary hearing the discovery is incidental to the issue of probable cause, is in. line with the modern trend for greater discovery in criminal proceedings. Unless intervening events which, as I have said, we have not considered, should preclude it, I would require that Shepard now be given a supplemental probable cause hearing. Only about an hour would be consumed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9459459. Public record. Not legal advice.