Petition for Writ of Certiorari — Alston Campbell, Jr., Petitioner v. United States

Supreme Court briefJun 21, 2021

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No.

______

IN THE

ALSTON CAMPBELL, JR.,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

_______________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eighth Circuit

_______________

PETITION FOR A WRIT OF CERTIORARI

_______________

Gregory J. DuBoff

Counsel of Record

Brian D. Schmalzbach

APPELLATE JUSTICE

INITIATIVE AT

MCGUIREWOODS LLP

800 East Canal Street

Richmond, VA 23219

(804) 775-1154

gduboff@mcguirewoods.com

Counsel for Petitioner

QUESTIONS PRESENTED

There is a split among the courts of appeals and

several states on the following question: Whether a

trial court violates a defendant’s rights under the

Confrontation

Clause

prohibiting

crossexamination of accomplice witnesses about the

sentencing benefits they hope to receive in exchange

for their cooperation with the government.

There is a split among the courts of appeals and

several states on the following question: Whether

appellate courts should review violations of the

Confrontation Clause de novo or for abuse of

discretion.

RELATED PROCEEDINGS

United States District Court (N.D. Iowa):

United States v. Alston Campbell, Jr., 17-CR-2045

(N.D. Iowa) (January 3, 2019)

United States v. Alston Campbell, Sr., 17-CR-2045

(N.D. Iowa) (March 8, 2019)

United States v. William Campbell, 17-CR-2045

(N.D. Iowa) (April 11, 2019)

United States v. Willie Carter, 17-CR-2045

(N.D. Iowa) (March 8, 2019)

United States v. Alexander Martin, 17-CR-2045

(N.D. Iowa) (October 17, 2018)

United States v. Naiqondis Spates, 17-CR-2043

(N.D. Iowa) (May 23, 2018)

United States v. Samuel Landfair, 17-CR-2047

(N.D. Iowa) (May 31, 2018)

United States v. John Phillips, 17-CR-2045

(N.D. Iowa) (October 17, 2018)

United States Court of Appeals (8th Cir.):

United States v. Alston Campbell, Jr., 19-1127

(8th Cir.) (January 21, 2021)

United States v. Alston Campbell, Sr., 19-1491

(8th Cir.) (January 21, 2021)

United States v. William Campbell, 19-1867

(8th Cir.) (January 21, 2021)

iii

United States v. Willie Carter, 19-1523

(8th Cir.) (January 21, 2021)

TABLE OF CONTENTS

QUESTIONS PRESENTED....................................... i

RELATED PROCEEDINGS ..................................... ii

APPENDIX ............................................................... vi

TABLE OF AUTHORITIES .................................... vii

PETITION FOR A WRIT OF CERTIORARI ............ 1

OPINIONS BELOW .................................................. 1

JURISDICTION ........................................................ 1

RELEVANT CONSTITUTIONAL

PROVISION .................................................... 1

INTRODUCTION ...................................................... 2

STATEMENT OF THE CASE .................................. 4

Legal background............................................ 4

II.

Factual and procedural history ...................... 6

REASONS FOR GRANTING THE WRIT .............. 10

II.

Federal and state courts are deeply

divided over the questions presented. .......... 10

Many jurisdictions recognize an

accused’s right to cross-examine

accomplices about specific

sentencing benefits............................. 10

Many other jurisdictions do not......... 13

Lower courts are also divided on

the correct standard of review. .......... 15

The questions presented are

extremely important. .................................... 17

III.

This case is an ideal vehicle for

resolving the split. ........................................ 20

IV.

The decision below is wrong. ........................ 21

The trial court’s limitations on

cross-examination violated this

Court’s precedent ............................... 21

The rule below is inconsistent

with the original meaning of the

Confrontation Clause. ........................ 23

The emergence of defense

counsel in felony trials .................. 24

Cross-examination in

eighteenth-century England......... 25

Confrontation in America ............. 29

The Eighth Circuit applied the

wrong standard of review. ................. 33

CONCLUSION ........................................................ 35

APPENDIX

APPENDIX A: Opinion in the United States

Court of Appeals for the Eighth

Circuit (January 21, 2021) ........... App. 1

APPENDIX B: Jury Trial Transcript Excerpts

in the United States District

Court for the Northern District

of Iowa (April 20-25, 2018)......... App. 45

APPENDIX C: Judgment in a Criminal Case

in the United States District

Court for the Northern District

of Iowa (January 3, 2019) ........ App. 114

APPENDIX D: Plea Agreements with the

United States Attorney for the

Northern District of Iowa ........ App. 131

vii

TABLE OF AUTHORITIES

Cases

Alford v. United States,

282 U.S. 687 (1931) ......................................... 5, 22

Allen v. State,

10 Ohio St. 287 (1859) ......................................... 22

Apprendi v. New Jersey,

530 U.S. 466 (2000) ............................................. 19

Boone v. Paderick,

541 F.2d 447 (4th Cir. 1976) ............................... 22

California v. Green,

399 U.S. 149 (1970) ............................................... 2

Chambers v. Mississippi,

410 U.S. 284 (1973) ............................................. 34

Commonwealth v. Bosworth,

39 Mass. 397 (1839) ............................................... 2

Commonwealth v. Sacket,

39 Mass. 394 (1839) ........................................31, 32

Davis v. Alaska,

415 U.S. 308 (1974) ..........................4, 5, 17, 33, 34

Delaware v. Van Arsdall,

475 U.S. 673 (1986) ................................4, 5, 21, 34

Faretta v. California,

422 U.S. 806 (1975) ............................19, 29, 30, 31

viii

Faugier v. Hallett,

2 Johns. Cas. 233 (N.Y. Sup. Ct.

1801) .................................................................... 31

Jackson v. State,

37 So. 3d 370 (Fla. App. 2010) ............................ 13

Jarrett v. State,

498 N.E.2d 967 (Ind. 1986) ................................. 12

Manley v. State,

287 Ga. 338 (2010)............................................... 12

Miller v. Fenton,

474 U.S. 104 (1985) ............................................. 34

Napue v. Illinois,

360 U.S. 264 (1959) ......................................... 3, 17

Newcomb v. State,

37 Miss. 383 (1859) ............................................. 32

Olden v. Kentucky,

488 U.S. 227 (1988) ............................................. 34

Ornelas v. United States,

517 U.S. 690 (1996) ........................................34, 35

Patrick v. State,

104 So. 3d 1046 (Fla. 2012) ................................... 6

Pennsylvania v. Ritchie,

480 U.S. 39 (1987) ................................................. 4

People v. Bonilla,

41 Cal. 4th 313 (2007) ......................................... 13

People v. Haynes,

38 How. Pr. 369 (N.Y. App. Term

1868) .................................................................... 32

People v. Hill,

282 Mich. App. 538 (2009) .................................. 17

People v. Linton,

56 Cal. 4th 1146 (2013) ....................................... 17

People v. Mumford,

183 Mich. App. 149 (1990) .................................. 13

People v. Williams,

18 Cal. 187 (1861)............................................ 2, 32

Pierce v. Underwood,

487 U.S. 552 (1988) ............................................. 35

Pointer v. Texas,

380 U.S. 400 (1965) ............................................. 17

Sheppard v. Taylor,

30 U.S. 675 (1831) ............................................... 31

State v. Brown,

303 S.C. 169 (1991) ............................................. 12

State v. Davis,

298 Conn. 1 (2010)............................................... 17

State v. Donelson,

302 N.W.2d 125 (Iowa 1981) ........................... 3, 12

State v. Gracely,

399 S.C. 363 (2012) ............................................. 12

State v. Gresham,

2003-Ohio-744 (Ct. App.) .................................... 15

State v. Jackson,

243 N.J. 52 (2020) ............................5, 6, 11, 12, 17

State v. Jolley,

656 N.W.2d 305 (S.D. 2003) ................................ 15

State v. Kent,

4 N.D. 577 (1895)............................................21, 32

State v. Mizzell,

349 S.C. 326 (2002) ........................................12, 22

State v. Orn,

197 Wn.2d 343 (2021)...................................... 6, 17

State v. Rainsong,

807 N.W.2d 283 (Iowa 2011) ............................... 17

State v. Sharp,

289 Kan. 72 (2009) .....................................6, 14, 15

State v. Tran,

712 N.W.2d 540 (Minn. 2006) ............................. 17

State v. Vogleson,

275 Ga. 637 (2002)............................................... 12

U.S. Bank Nat’l Ass’n v. Vill. at

Lakeridge, LLC,

138 S. Ct. 960 (2018) ........................................... 35

United States v. Cooks,

52 F.3d 101 (5th Cir. 1995) ............................10, 11

United States v. Cronic,

466 U.S. 648 (1984) ............................................. 23

United States v. Cropp,

127 F.3d 354 (4th Cir. 1997) ........................... 6, 13

United States v. Ford,

761 F.3d 641 (6th Cir. 2014) ............................... 16

United States v. Garcia,

13 F.3d 1464 (11th Cir. 1994) ............................. 16

United States v. Haymond,

139 S. Ct. 2369 (2019) ......................................... 23

United States v. Jiménez-Bencevi,

788 F.3d 7 (1st Cir. 2015).................................... 16

United States v. John,

849 F.3d 912 (10th Cir. 2017) ....................6, 15, 16

United States v. Kiza,

855 F.3d 596 (4th Cir. 2017) ............................... 16

United States v. Landerman,

109 F.3d 1053 (5th Cir. 1997) ........................10, 11

United States v. Lanham,

617 F.3d 873 (6th Cir. 2010) ........................... 5, 10

United States v. Larson,

495 F.3d 1094 (9th Cir. 2007) ........................11, 16

United States v. Luciano-Mosquera,

63 F.3d 1142 (1st Cir. 1995)................................ 13

United States v. Mussare,

405 F.3d 161 (3d Cir. 2005)................................. 16

xii

United States v. Nickle,

816 F.3d 1230 (9th Cir. 2016) ............................. 22

United States v. Parke,

362 U.S. 29 (1960) ............................................... 34

United States v. Ramos,

852 F.3d 747 (8th Cir. 2017) ............................... 20

United States v. Ramos-Cruz,

667 F.3d 487 (4th Cir. 2012) ................................. 6

United States v. Richardson,

781 F.3d 237 (5th Cir. 2015) ............................... 16

United States v. Schoneberg,

396 F.3d 1036 (9th Cir. 2004) ......................... 6, 11

United States v. Trent,

863 F.3d 699 (7th Cir. 2017) ..........................14, 16

United States v. Ulbricht,

858 F.3d 71 (2d Cir. 2017)................................... 16

United States v. Vega,

826 F.3d 514 (D.C. Cir. 2016) ............................. 16

United States v. Walley,

567 F.3d 354 (8th Cir. 2009) ............................... 14

United States v. Wright,

866 F.3d 899 (8th Cir. 2017) ............................... 14

Statutes

18 U.S.C. § 3553(e) ..................................................... 7

21 U.S.C. § 841(b)(1)(A) .............................................. 9

xiii

28 U.S.C. § 1254(1) ..................................................... 1

The Anti-Drug Abuse Act of 1986, Pub.

L. No. 99-570, 100 Stat. 3207 (1986) .................. 18

Other Authorities

The American and English Encyclopedia of

Law (Merrill ed. 1887) ....................................... 33

J. M. Beattie, Scales of Justice: Defense

Counsel and the English Criminal

Trial in the Eighteenth and

Nineteenth Centuries, 9 Law & Hist.

Rev. 221 (1991) .................................................... 24

William D. Evans, On the Law of

Evidence (1806) .......................... 3, 4, 23, 28, 29, 31

George C. Harris, Testimony for Sale:

The Law and Ethics of Snitches and

Experts, 28 Pepp. L. Rev. 1 (2000) ...................... 17

Randolph N. Jonakait, The Origins of

the Confrontation Clause: An

Alternative History, 27 Rutgers L.

Rev. 77 (1995) ...........................................29, 30, 31

Stephan Landsman, Rise of the

Contentious Spirit: Adversary

Procedure in Eighteenth Century

England, 75 Cornell L. Rev. 496

(1990) ..................................................26, 27, 28, 29

John H. Langbein, The Criminal Trial

Before the Lawyers, 45 U. Chi. L.

Rev. 263 (1978) .................................................... 24

xiv

John H. Langbein, The Origins of

Adversary Criminal Trial (2003) .. 2, 23, 24, 25, 26

John H. Langbein, The Prosecutorial

Origins of Defence Counsel in the

Eighteenth Century: The Appearance

of Solicitors, 58 Camb. L. J. 314 (1999) .........25, 26

Murl A. Larkin, The Right of

Confrontation: What Next?, 1 Tex.

Tech L. Rev. 67 (1969) ......................................... 30

Robert P. Mosteller, Remaking

Confrontation Clause and Hearsay

Doctrine Under the Challenge of

Child Sexual Abuse Prosecutions,

1993 U. Ill. L. Rev. 691 (1993) ........................... 19

Old Bailey Session Papers.............................26, 27, 28

Thomas Peake, A Compendium of the

Law of Evidence (2d ed. 1804) ............................ 28

Thomas Peake, A Compendium of the

Law of Evidence (2d Am. ed. 1806) ..................... 31

Samuel M. Phillipps, Treatise on the

Law of Evidence (2d ed. 1815) .......................28, 29

Samuel M. Phillipps, Treatise on the

Law of Evidence (2d Am. ed. 1820) ..................... 31

Bernard Schwartz, The Bill of Rights: A

Documentary History (1971) ..........................30, 31

G. Adam Schweickert, III, Note, ThirdParty Cooperation: A Welcome

Addition to Substantial Assistance

Departure Jurisprudence, 30 Conn.

L. Rev. 1445 (1998) .........................................18, 19

Michael A. Simons, Uniformity,

Disparity and Cooperation in

Federal Drug Sentences, 47 Vill. L.

Rev. 921 (2002) .................................................... 19

James F. Stephen, A Digest of the Law

of Evidence (May ed. 1877) ................................ 32

James F. Stephen, A History of the

Criminal Law of England (1883) ........................ 23

U.S. Sentencing Comm’n, Mandatory

Minimum Penalties in the Federal

Criminal Justice System (1991) ......................... 18

U.S. Sentencing Comm’n, Mandatory

Minimum Penalties in the Federal

Criminal Justice System (2011) ......................... 18

U.S. Sentencing Comm’n, The Use of

Federal Rule of Criminal Procedure

35(b) (2016) ...................................................... 3, 19

Francis Wharton, A Treatise on the Law

of Evidence in Criminal Issues (8th

ed. 1880)..........................................................32, 33

John H. Wigmore, Evidence

(Chadbourne rev. 1983) ....................................... 21

PETITION FOR A WRIT OF CERTIORARI

Petitioner Alston Campbell, Jr., respectfully

petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Eighth Circuit.

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Eighth Circuit, App. 1, is reported at

986 F.3d 782. The decision of the United States

District Court for the Northern District of Iowa was

issued from the bench. It is reprinted at App. 45-58.

JURISDICTION

The judgment of the United States Court of

Appeals for the Eighth Circuit was entered on

January 21, 2021. On March 19, 2020, this Court

entered a standing order that extends the time to file

this petition for a writ of certiorari to June 21, 2021.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL PROVISION

The Sixth Amendment provides in relevant

part: “In all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses

against him.”

INTRODUCTION

Cross-examination is the “greatest legal engine

ever invented for the discovery of truth.” California v.

Green, 399 U.S. 149, 158 (1970). And the right to

cross-examine adverse witnesses sits at the core of the

Confrontation Clause. Historically, courts fiercely

protected this right with accomplice witnesses in

particular because of the benefits accomplices hope to

gain by their testimony. See Commonwealth v.

Bosworth, 39 Mass. 397, 400 (1839). Indeed, at

common law, the need for skilled cross-examination of

accomplices was a “precipitating factor” in the

decision “to permit felony defendants to have the

assistance of counsel.” John H. Langbein, The Origins

of Adversary Criminal Trial 292 (2003) (“Origins”).

Perhaps because defendants long enjoyed “[t]he

utmost

latitude

cross-examination”

with

accomplices, People v. Williams, 18 Cal. 187, 191

(1861), this Court has not directly addressed the scope

of the Confrontation Clause in this area. This case

provides an ideal vehicle to resolve the deep conflict

among the courts of appeals and the states on this

issue. Some courts, like the one below, permit severe

restrictions on cross-examination, only allowing the

jury to learn that an accomplice received some

unspecified benefit for cooperating. Others preserve

the historical scope of the Confrontation Clause by

allowing full inquiry into the specific benefits at stake

for the accomplice.

Petitioner was convicted of drug offenses based

on the testimony of four alleged accomplices. They had

all pled guilty to offenses that carried decades-long

mandatory minimums, but none had been sentenced.

As noted in their plea bargains, the only way for them

to escape these mandatory minimums was to give

testimony that the prosecutor—in her “sole

discretion”—found “significan[t] and useful[].” App.

148.

Yet the district court would not let petitioner

cross-examine these witnesses on the magnitude of

their incentive to testify favorably for the government.

All petitioner could do was ask whether the alleged

accomplices faced “substantial” sentences. App. 55.

The court of appeals affirmed this restriction, holding

that the Sixth Amendment allows a court to limit

cross-examination to “generalized phraseology” alone.

App. 12. As a result, petitioner enjoyed far less

protection under the Confrontation Clause than he

would have had across the street in Iowa state court.

See State v. Donelson, 302 N.W.2d 125, 131 (Iowa

1981) (“[T]he defendant must be allowed to inquire

about the terms of the bargain so that the jury may

better understand the possible motivations of the

accomplice as he sits on the stand.”).

This issue is particularly important because (in

federal cases alone) prosecutors reward accomplices

for their assistance in more than 10,000 cases each

year. U.S. Sentencing Comm’n, The Use of Federal

Rule of Criminal Procedure 35(b) 8 (2016) (“Use of

35(b)”). And in such cases, the accused’s ability to

expose bias “may well be determinative of guilt or

innocence.” Napue v. Illinois, 360 U.S. 264, 269 (1959).

This Court should grant the writ and restore

the original meaning of the Confrontation Clause,

which the Framers understood as protecting an

accused’s right to subject accomplices to “a minute

examination of circumstances” through cross-

examination. William D. Evans, On the Law of

Evidence 232 (1806) (“Evans”).

STATEMENT OF THE CASE

A jury convicted petitioner Alston Campbell,

Jr., of two drug offenses based on the testimony of

several alleged accomplices. This petition addresses

whether the trial court erred by prohibiting crossexamination of these accomplices about the specific

benefits they hoped to receive by testifying. The

Eighth Circuit held that restricting cross-examination

“generalized

phraseology”

satisfied

the

Confrontation Clause. App. 12.

Legal background

The Sixth Amendment guarantees an accused

the right “to be confronted with the witnesses against

him.” U.S. Const. amend. VI. “The main and essential

purpose of confrontation is to secure . . . the

opportunity of cross-examination.” Davis v. Alaska,

415 U.S. 308, 315-16 (1974). And “one of the primary

purposes of cross-examination” is to “demonstrate

that [a] witness is biased.” Pennsylvania v. Ritchie,

480 U.S. 39, 62 (1987) (Blackmun, J., concurring in

part and concurring in the judgment).

A “prototypical form of bias” arises when a

witness expects to receive a benefit in exchange for

testifying. Delaware v. Van Arsdall, 475 U.S. 673, 680

(1986). So this Court has repeatedly recognized

Confrontation Clause violations when trial courts

prevent an accused from exposing through crossexamination the full extent of a witness’s incentive to

testify favorably for the prosecution.

In Alford v. United States, 282 U.S. 687, 690

(1931), the trial court did not allow defense counsel to

question an adverse witness about his present

incarceration. This Court reversed Alford’s conviction

because, had this information been revealed, the jury

might have discounted the testimony as “given under

promise or expectation of immunity, or under the

coercive effect of his detention.” Id. at 693.

This Court reached the same conclusion in

Davis. There, the accused was prohibited from crossexamining a witness about his status as a juvenile

probationer. That status was relevant to show that

the witness “might have been subject to undue

pressure from the police and made his identifications

[of defendant] under fear of possible probation

revocation.” 415 U.S. at 311.

Finally, in Van Arsdall, the government agreed

to dismiss a witness’s unrelated criminal charge if he

agreed to speak with prosecutors about the subject

murder. 475 U.S. at 676. This Court held that

prohibiting cross-examination about this agreement

violated the Confrontation Clause. Id. at 679.

This Court has not directly addressed whether

the Confrontation Clause entitles an accused to crossexamine accomplices about the magnitude of the

sentencing benefit they have received (or expect to

receive) for testifying. Lower courts are openly split on

this question. See United States v. Lanham, 617 F.3d

873, 884 (6th Cir. 2010) (noting split).

Many states and federal circuits recognize an

accused’s right to question an accomplice “about his

subjective understanding of the benefit of his plea

bargain, including what sentence he faced and what

was offered in the plea agreement.” State v. Jackson,

243 N.J. 52, 70 (2020); accord United States v.

Schoneberg, 396 F.3d 1036, 1042 (9th Cir. 2005). But

other courts have found no Confrontation Clause

violation even when a defendant is prohibited from

“ask[ing] any quantitative questions whatsoever

about the benefits . . . witnesses expected to receive

for their cooperation.” United States v. Cropp, 127

F.3d 354, 359 (4th Cir. 1997); accord State v. Sharp,

289 Kan. 72, 99-100 (2009).

Lower courts are also openly split on the

standard of review for claimed violations of the

Confrontation Clause. See United States v. John, 849

F.3d 912, 917-18 (10th Cir. 2017) (noting split). Some

circuits “review de novo all Confrontation Clause

challenges to restrictions on cross-examination.” Id. at

917. Others “review for abuse of discretion.” United

States v. Ramos-Cruz, 667 F.3d 487, 500 (4th Cir.

2012). The same split exists among the states.

Compare State v. Orn, 197 Wn.2d 343, 350 (2021) (de

novo), with Patrick v. State, 104 So. 3d 1046, 1057

(Fla. 2012) (abuse of discretion).

II.

Factual and procedural history

Petitioner went to trial with

defendants on various drug charges.1

three

co-

At trial, the prosecution relied on the testimony

of four accomplices. Each accomplice had a plea

bargain with the government. App. 131, 160, 190, 207.

And each testified to participating in the charged

conspiracy with petitioner and his co-defendants. By

The Eighth Circuit’s decision calls petitioner “Junior” to

distinguish between his family member co-defendants.

petitioner’s trial, the accomplices had all pled guilty,

but none had been sentenced. App. 88.

Each accomplice faced a maximum sentence of

life in prison without the possibility of parole. Each

also faced a mandatory minimum of a decade or more.

Two faced a mandatory minimum of ten years, App.

161, 191, and one of twenty years, App. 132. The

fourth accomplice had faced a mandatory minimum of

twenty years, but in exchange for his plea the

government agreed to withdraw its notice of prior

felony drug convictions, reducing his mandatory

minimum to ten years. App. 208.

In their plea bargains, each accomplice

acknowledged his mandatory minimum sentence. See

App. 132. They also acknowledged that the sentencing

court could not go below the mandatory minimum

without a substantial-assistance motion by the

prosecutor. See App. 147 (citing 18 U.S.C. § 3553(e)).

None of the plea bargains required the prosecutor to

make such a motion. That decision was “in the sole

discretion of the United States Attorney’s Office” and

would depend on, among other factors, “the

significance and usefulness of any assistance

rendered by [the accomplice].” App. 147-48.

Just before trial, the government objected to

defense counsel cross-examining the accomplices on

the content of their plea bargains. App. 48. The trial

court ruled that the agreements themselves were

inadmissible, but explained that defense counsel

could “ask a cooperating witness all the questions you

want” about his agreement. App. 52. The court also

clarified that it was “fair game to talk about the

sentence they’re facing.” Id.

The government objected to this ruling and

asked the court to bar cross-examination on the

sentences the accomplices faced. App. 53-54.

Reversing its earlier ruling, the trial court agreed and

told defense counsel they could only ask the

accomplices “whether they’re facing a substantial

amount of time” or “facing a mandatory minimum.”

App. 54-55. The trial court barred inquiry “into the

exact amount of time that they’re facing,” App. 55, out

of concern that the jury might infer the sentences

faced by some defendants, App. 84. See also App. 62

(“[Y]ou can say mandatory minimum, but not any

specifics.”).

The police neither observed petitioner selling

drugs nor found drugs on him. So at trial, the

government relied mainly on the accomplices’

testimony that they had bought drugs from petitioner

in the past. The jury convicted petitioner of conspiracy

to distribute cocaine and possession with intent to

distribute cocaine, App. 24, and the district court

sentenced him to over twenty-one years in prison,

App. 116-17.

On appeal, petitioner argued that the trial

court’s limitations on cross-examination violated the

Confrontation Clause. App. 35.2 In reviewing this

claim, the Eighth Circuit “appl[ied] an abuse of

discretion standard.” App. 9. And while recognizing

“the sanctity of a defendant’s ability to expose witness

bias,” the court found no abuse of discretion. App. 10.

2 In rejecting petitioner’s Confrontation Clause claim, the court

of appeals relied on its discussion of the same claim raised by one

of petitioner’s co-defendants. App. 35.

The Eighth Circuit noted that trial judges

“retain wide latitude” to restrict cross-examination

“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.” App. 10. But the court

never identified which (if any) of these concerns was

implicated here.

Instead, the Eighth Circuit’s analysis turned on

“the fact that while [each] cooperating witness hoped

for a reduction in his sentence, the government had

not yet granted him leniency in exchange for his

cooperation.” App. 10-11.3 As a result, “the degree of

leniency—and, more significantly, the consideration

granted to the witness for his cooperation—was

unascertainable at the time of cross-examination.”

App. 11.

The court held that “where a cooperating

witness simply hopes that his cooperation will

manifest into some undefined degree of leniency, a

district court does not abuse its discretion by limiting

cross-examination to generalized phraseology like

‘significant sentence.’” App. 11-12.

3 This was inaccurate for one accomplice, whose plea agreement

required the government to withdraw its notice of prior felony

drug convictions. App. 208. That action alone reduced the

mandatory minimum sentence from twenty years to ten. See 21

U.S.C. § 841(b)(1)(A) (2017).

REASONS FOR GRANTING THE WRIT

Federal and state courts are deeply

divided over the questions presented.

“There is a circuit split on the issue of whether

defendants should be prohibited from asking

cooperating witnesses . . . details about their

sentences and sentencing agreements with the

government to expose the witnesses’ bias.” Lanham,

617 F.3d at 884. The same split exists among the

states. In many jurisdictions, a defendant can

question accomplices about the specific benefits they

have received (or hope to receive) for their testimony.

But many other jurisdictions do not recognize this

right. Courts are also divided on the standard of

appellate review for this issue.

Many jurisdictions recognize an

accused’s right to cross-examine

accomplices about specific sentencing

benefits.

The Fifth and Ninth Circuits both protect an

accused’s right to expose the magnitude of sentencing

benefits at stake for an accomplice cooperating with

the government.

The Fifth Circuit recognizes that “[c]ounsel

should be allowed great latitude in cross examining a

witness regarding his motivation or incentive to

falsify testimony, and this is especially so when cross

examining an accomplice.” United States v.

Landerman, 109 F.3d 1053, 1063 (5th Cir. 1997). On

that basis, the court has found Confrontation Clause

violations when a trial court prohibits questioning on

an accomplice’s possible sentences. United States v.

Cooks, 52 F.3d 101, 104 & n.13 (5th Cir. 1995). In

Cooks, the trial court only allowed cross-examination

into the accomplice’s general motivation to avoid

punishment, but the Fifth Circuit held that “[t]he jury

should have been informed of all of the pertinent facts

surrounding this motivation.” Id. at 104; see also

Landerman, 109 F.3d at 1063 (Confrontation Clause

violated when a jury was not informed that an

accomplice’s “pending charge carried the potential of

a life sentence”).

In the Ninth Circuit, “[w]here a plea agreement

allows for some benefit or detriment to flow to a

witness as a result of his testimony, the defendant

must be permitted to cross examine the witness

sufficiently to make clear to the jury what benefit or

detriment will flow, and what will trigger the benefit

or detriment.” Schoneberg, 396 F.3d at 1042. In

United States v. Larson, the court found a

Confrontation Clause violation when defense counsel

was prohibited from exposing the mandatory

minimum an accomplice faced absent cooperation. 495

F.3d 1094, 1106-07 (9th Cir. 2007) (en banc). This

information was “highly relevant to the witness’

credibility” because “the witness knows with certainty

that he will receive [the mandatory minimum] unless

he satisfies the government.” Id. at 1106.

Many states likewise recognize an accused’s

Sixth Amendment right to expose the specific benefits

an accomplice receives for testifying. The New Jersey

Supreme Court interprets the Confrontation Clause

to guarantee “unfettered examination” of an

accomplice’s plea bargain, including “what sentence

he faced and what was offered in the plea agreement.”

Jackson, 243 N.J. at 59, 70. So “on a routine basis” in

that state, “a cooperating witness’s maximum

sentencing exposure is explored through crossexamination.” Id. at 71. Iowa has adopted the same

rule. See Donelson, 302 N.W.2d at 131.

The Indiana Supreme Court recognizes that a

jury should “know the quantity of benefit to accusing

witnesses.” Jarrett v. State, 498 N.E.2d 967, 968 (Ind.

1986) (emphasis added). This is because it is “quite

relevant” whether the accomplice is “avoiding

imprisonment of ten days, ten weeks, or ten years.” Id.

The Georgia Supreme Court likewise holds that

a trial court violates the Confrontation Clause when

it does not permit inquiry into “the witness’s belief

concerning the amount of prison time he is avoiding

by testifying against the defendant.” State v. Vogleson,

275 Ga. 637, 640 (2002). This principle applies to both

maximum and minimum sentences because, in the

latter case, “the opportunity for earlier release from

prison, even if not guaranteed, is an important

consideration for a witness facing time behind bars.”

Manley v. State, 287 Ga. 338, 342 (2010).

The South Carolina Supreme Court found a

Confrontation Clause violation when a trial court

prohibited defense counsel from eliciting that two

accomplices “avoided [a] mandatory minimum

twenty-five years’ imprisonment by pleading guilty to

lesser offenses.” State v. Gracely, 399 S.C. 363, 374

(2012); accord State v. Brown, 303 S.C. 169, 171

(1991). It has also confirmed that euphemistic

phrases—e.g., “a long sentence”—do not cure this

error. State v. Mizzell, 349 S.C. 326, 334-35 (2002).

Many other states hold that cross-examination

by euphemism does not satisfy the Sixth Amendment.

See, e.g., People v. Mumford, 183 Mich. App. 149, 154

(1990) (defense counsel entitled to cross-examine

accomplice “on all of the details of the plea bargain,

including the sentencing consideration [he] received

in return for his testimony.”); People v. Bonilla, 41

Cal. 4th 313, 337 (2007) (“[W]hen an accomplice

testifies for the prosecution, full disclosure of any

agreement affecting the witness is required to ensure

that the jury has a complete picture of the factors

affecting the witness’s credibility.”); Jackson v. State,

37 So. 3d 370, 373 (Fla. App. 2010) (violation for

prohibiting cross-examination into length of an

accomplice’s mandatory minimum sentence).

Many other jurisdictions do not.

Other jurisdictions deny that an accused has a

constitutional right to cross-examine accomplices

about the magnitude of benefits received from the

government. In Cropp, for example, the Fourth

Circuit affirmed a conviction when defense counsel

“were not permitted to ask any quantitative questions

whatsoever about the benefits . . . witnesses expected

to receive for their cooperation.” 127 F.3d at 359.

The First Circuit agreed in United States v.

Luciano-Mosquera, 63 F.3d 1142, 1153 (1st Cir. 1995).

There, prosecutors dropped an accomplice’s firearms

charge in exchange for his cooperation. Id. After

eliciting this fact, however, defense counsel could not

ask any questions about the thirty-five-year

mandatory minimum the accomplice avoided as a

result. Id. The First Circuit concluded that the

Confrontation Clause only guarantees inquiry into

the general topic of whether an accomplice “received a

benefit for his testimony.” Id. Nothing beyond that

was required. Id.

Other jurisdictions approve limitations that

only allow references to sentencing benefits in

euphemistic terms. The two accomplices in United

States v. Trent, 863 F.3d 699, 704 (7th Cir. 2017), cert.

denied, 138 S. Ct. 2025 (2018), avoided twenty-year

mandatory minimums by testifying. And the Seventh

Circuit upheld a restriction that only allowed defense

counsel to ask whether the accomplices had originally

faced “substantial” mandatory minimums. Id. at 706.

The Eighth Circuit approved a similar

limitation in United States v. Walley, 567 F.3d 354,

360 (8th Cir. 2009). There, defense counsel could only

characterize an accomplice’s five-year mandatory

minimum as “significant.” Id. The court acknowledged

the “malleability” of this term and that the jury was

just as likely to think “significant” meant two, five,

ten, or even twenty years. Id. But the court found no

constitutional violation because, in its view, it was

“not self-evident that a witness facing a longer

mandatory minimum has a greater desire to please

the government.” Id.

In United States v. Wright, 866 F.3d 899, 907

(8th Cir. 2017), the Eighth Circuit expressly disagreed

with the Ninth and held that a trial court did not

violate the Confrontation Clause by only allowing

defense counsel to characterize an accomplice’s

mandatory life sentence as “decades” in prison. Id. at

908.

Many states allow similar restrictions on

accomplice cross-examination. In Sharp, the

government originally charged an accomplice with

kidnapping and felony murder, but he later pled

guilty to involuntary manslaughter in exchange for

his cooperation. 289 Kan. at 96. The Kansas Supreme

Court found no constitutional violation from the trial

court’s exclusion of all questions on sentence length.

Id. at 99-100. In its view, it was sufficient under the

Confrontation Clause for the jury to learn that the

accomplice “would receive some sort of lesser

sentence” based on his cooperation. Id.

It was the same in State v. Jolley, 656 N.W.2d

305, 310 (S.D. 2003), where the state dropped an

accomplice’s murder charge in exchange for her

testimony. The accused could not question the

accomplice about the life sentence she avoided, but the

court held it was enough for the jury to learn that she

“received a lesser sentence through her cooperation.”

Id.

In justifying similar restrictions, Ohio courts

acknowledge that “a plea bargain may provide a

motive to misrepresent,” but reason that “the specific

extent of the benefit . . . is not relevant.” State v.

Gresham, 2003-Ohio-744, ¶ 9 (Ct. App.). Rather, an

accomplice’s “agree[ment] to plead guilty to lesser

charges and to testify against [an accused] is

sufficient to demonstrate the witness’ potential

motive to misrepresent the facts.” Id. “A comparison

of the potential penalties under the plea agreement

versus the original charges,” therefore, is irrelevant.

Id.

Lower courts are also divided on the

correct standard of review.

There is also an acknowledged circuit split on

the standard of appellate review. John, 849 F.3d at

917-18. The Tenth Circuit “review[s] de novo all

Confrontation Clause challenges to restrictions on

cross-examination.” Id. The Fifth Circuit does the

same. See United States v. Richardson, 781 F.3d 237,

243 (5th Cir. 2015).

By contrast, the Eighth Circuit “review[s] a

district court’s limitations on cross-examination . . .

[for] an abuse of discretion” and “will reverse only if a

clear abuse of discretion occurred.” App. 9. The same

standard applies in the Second, Third, Fourth, Sixth,

and D.C. Circuits. See United States v. Ulbricht, 858

F.3d 71, 118 (2d Cir. 2017); United States v. Mussare,

405 F.3d 161, 169 (3d Cir. 2005); United States v. Kiza,

855 F.3d 596, 603-04 (4th Cir. 2017); United States v.

Ford, 761 F.3d 641, 651 (6th Cir. 2014); United States

v. Vega, 826 F.3d 514, 542 (D.C. Cir. 2016).

Other circuits apply a two-tier standard of

review. The Ninth Circuit reviews a trial court’s

exclusion of an entire “area of inquiry” de novo, but

applies abuse of discretion to “limitation[s] on the

scope of questioning within a given area.” Larson, 495

F.3d at 1101. In the First Circuit, once an accused

“establish[es] a reasonably complete picture of the

witness’ veracity, bias, and motivation,” the court

reviews “particular limitations” on cross-examination

for abuse of discretion. United States v. JiménezBencevi, 788 F.3d 7, 21 (1st Cir. 2015); accord United

States v. Garcia, 13 F.3d 1464, 1468 (11th Cir. 1994).

The Seventh Circuit’s standard of review

depends on whether the trial court’s limitation

“directly implicates the core values of the

Confrontation Clause.” Trent, 863 F.3d at 704. If so,

review is de novo. Id. Otherwise, review is only for

abuse of discretion. Id.

State courts are equally divided on the

standard of review. Many review Confrontation

Clause violations de novo. See, e.g., Orn, 197 Wn.2d at

350; State v. Rainsong, 807 N.W.2d 283, 286 (Iowa

2011); State v. Davis, 298 Conn. 1, 11 (2010); People v.

Hill, 282 Mich. App. 538, 540 (2009). Others review

for abuse of discretion. See, e.g., Jackson, 243 N.J. at

64; People v. Linton, 56 Cal. 4th 1146, 1188 (2013);

State v. Tran, 712 N.W.2d 540, 550 (Minn. 2006).

II.

The questions presented are extremely

important.

The scope of the Sixth Amendment right to

cross-examine accomplices is often litigated and

critical to a jury’s evaluation of accomplice testimony.

“The jury’s estimate of the truthfulness and

reliability of a given witness may well be

determinative of guilt or innocence.” Napue, 360 U.S.

at 269. That credibility determination is key in

accomplice cases because prosecutors “[d]epend[] on

accomplice testimony . . . in just those cases where the

extrinsic evidence is not sufficient . . . to convict.”

George C. Harris, Testimony for Sale: The Law and

Ethics of Snitches and Experts, 28 Pepp. L. Rev. 1, 53

(2000).

As “the principal means by which the

believability of a witness and the truth of his

testimony are tested,” Davis, 415 U.S. at 316, “crossexamination is an essential and fundamental

requirement for the kind of fair trial which is this

country’s constitutional goal,” Pointer v. Texas, 380

U.S. 400, 403-05 (1965). Yet in many jurisdictions—

including in the court below—defendants cannot

expose the magnitude of an accomplice’s incentive to

testify favorably for the government. So it is vital for

this Court to clarify the scope of the Confrontation

Clause’s protections in this area.

While the treatment of accomplice testimony

has always been critical for defendants, changes in the

criminal justice system over the past thirty-five years

have elevated the gravity and recurrence of this issue.

And as legislative changes have expanded

government

reliance

accomplices,

many

jurisdictions have eroded an accused’s longstanding

right to attack this form of evidence.

Two statutory changes in the mid-1980s

transformed the administration of federal criminal

law. The Anti-Drug Abuse Act of 1986, Pub. L. No. 99570, 100 Stat. 3207 (1986), enacted “many additional

mandatory minimum penalties and an increase in the

length of existing penalties—particularly for drug

offenses and violent crimes.” U.S. Sentencing

Comm’n, Mandatory Minimum Penalties in the

Federal Criminal Justice System 23 (2011). The same

law made it so that judges could only impose

sentences below these mandatory minimums “[u]pon

motion of the Government.” Pub. L. No. 99-570,

§ 1007.

The combined effect of these changes was to

expose defendants to longer and mandatory

sentences, while giving prosecutors the exclusive

ability to authorize lower punishments. This

restructuring aimed to “induce[] . . . cooperation” by

defendants, and it worked. U.S. Sentencing Comm’n,

Mandatory Minimum Penalties in the Federal

Criminal Justice System 14 (1991). The new

framework “led to a ten-fold increase in cooperation

from indicted individuals.” G. Adam Schweickert, III,

Note, Third-Party Cooperation: A Welcome Addition to

Substantial Assistance Departure Jurisprudence, 30

Conn. L. Rev. 1445, 1449 (1998). And that increase

has been especially pronounced in drug cases. See

Michael A. Simons, Departing Ways: Uniformity,

Disparity and Cooperation in Federal Drug Sentences,

47 Vill. L. Rev. 921, 938 n.89 (2002). Federal

prosecutors alone now authorize reduced sentences in

exchange for accomplice cooperation in more than

10,000 cases each year. Use of 35(b) 8.

The Sixth Amendment captures the Framers’

fundamental beliefs “about the relationship of the

individual to the state.” Robert P. Mosteller,

Remaking Confrontation Clause and Hearsay

Doctrine Under the Challenge of Child Sexual Abuse

Prosecutions, 1993 U. Ill. L. Rev. 691, 754 (1993). And

it reflects their “desire to restrain the power of the

state.” Id. But when a trial court prevents an accused

from exposing accomplice bias, all three branches of

government have, in effect, combined to undo this

restraint. The legislative branch prescribes long

mandatory minimums, the executive branch uses

these as leverage to secure cooperation, and the

judicial branch alleviates the risks of relying on

accomplice testimony by limiting the accused’s ability

to expose bias. Cf. Apprendi v. New Jersey, 530 U.S.

466, 498 (2000) (Scalia, J., concurring) (“Judges, it is

sometimes necessary to remind ourselves, are part of

the State . . . .”).

This insulation of government witnesses flouts

the Sixth Amendment guarantee of “the rights

necessary to a full defense.” Faretta v. California, 422

U.S. 806, 818 (1975).

III.

This case is an ideal vehicle for resolving

the split.

This direct appeal presents an excellent vehicle

to resolve the questions presented. The district court’s

ruling set a clear boundary, limiting crossexamination to the specific term “substantial.” So this

case cleanly presents whether the Confrontation

Clause permits that restriction.

The first question presented is also important

to the outcome at trial: if the district court had not

restricted petitioner’s cross-examination of the

alleged accomplices, there is a substantial likelihood

of a different trial result. Accomplice testimony was

critical to the government’s case, not only to prove the

conspiracy’s existence, but also to prove the quantity

of drugs trafficked. Each accomplice testified about

the total drug quantity received from petitioner or his

co-defendants during the conspiracy. See, e.g., App.

74, 101, 110-11.

The court below acknowledged how important

accomplice testimony was to the government’s case.

Indeed, it relied on this testimony to reject petitioner’s

sufficiency-of-the-evidence claim and noted that

“[a]ccomplice testimony need not be corroborated to

support a conviction.” App. 33 (quoting United States

v. Ramos, 852 F.3d 747, 753 (8th Cir. 2017)). By the

same token, if the jury had discounted the testimony

of these accomplices after hearing the extent of their

motive to testify against petitioner, it may well have

reached a different verdict.

IV.

The decision below is wrong.

Certiorari is also warranted here because the

Eighth Circuit’s decision violates this Court’s

precedent and the original meaning of the Sixth

Amendment.

The trial court’s limitations on crossexamination violated this Court’s

precedent.

A defendant “states a violation of the

Confrontation Clause by showing that he was

prohibited from engaging in otherwise appropriate

cross-examination designed to show a prototypical

form of bias on the part of the witness.” Van Arsdall,

475 U.S. at 680. There is nothing more “prototypical”

than that an accomplice “may be influenced by an

expectation of total or partial exemption from

punishment, as a reward for . . . testimony.” State v.

Kent, 4 N.D. 577, 599 (1895). And because “[t]he

temptation to commit perjury . . . must be

proportioned” to the punishment an accomplice faces,

a jury cannot meaningfully assess credibility unless it

knows the magnitude of an accomplice’s potential

sentence. 7 John H. Wigmore, Evidence § 2057

(Chadbourn rev. 1983).

The Eighth Circuit did not apply (or even cite)

this Court’s standard. Its decision rested on “the fact

that while the cooperating witness[es] hoped for a

reduction in [their] sentence[s], the government had

not yet granted [them] leniency in exchange for [their]

cooperation.” App. 11. Leaning on this fact, the court

held that “where a cooperating witness simply hopes

that his cooperation will manifest into some undefined

degree of leniency, a district court does not abuse its

discretion

limiting

cross-examination

generalized phraseology like ‘significant sentence.’”

App. 11-12.

This distinction between hoped-for benefits and

those already received finds no support in this Court’s

precedent. Several cases have involved witnesses

whose bias stemmed from anticipated leniency, see,

e.g., Alford, 282 U.S. at 693, but that fact has never

played a part in this Court’s analysis.

And even assuming the pendency of a reward

could make a constitutional difference, the court

below “had it precisely backwards.” United States v.

Nickle, 816 F.3d 1230, 1236 (9th Cir. 2016). “[T]he fact

that the government had not yet made a [substantial

assistance] motion . . . would give the witnesses the

greatest incentive to tailor their testimony to please

the prosecution.” Id.; see also, e.g., Mizzell, 349 S.C. at

333 (“The lack of a negotiated plea, if anything,

creates a situation where the witness is more likely to

engage in biased testimony . . . .”); Boone v. Paderick,

541 F.2d 447, 451 (4th Cir. 1976) (same).

The uncertainty of an accomplice’s reward is

also irrelevant because the purpose of crossexamination is not to prove the exact benefit an

accomplice will receive. Its purpose is to expose “an

existing motive in the mind of the witness to give

testimony against [the accused], regardless of truth.”

Allen v. State, 10 Ohio St. 287, 306 (1859). To

appreciate the strength of that motive, petitioner’s

jury needed to know the mandatory minimums the

alleged accomplices faced if they failed to please the

prosecutor with their testimony.

The rule below is inconsistent with the

original meaning of the Confrontation

Clause.

“[T]he Constitution’s guarantees cannot mean

less today than they did the day they were adopted.”

United States v. Haymond, 139 S. Ct. 2369, 2376

(2019). And evidence of the Confrontation Clause’s

original meaning confirms that it protects an

accused’s right to cross-examine accomplices on the

specific benefits they hope to receive.

The Sixth Amendment followed a “most

remarkable change” in English criminal procedure.

1 James F. Stephen, A History of the Criminal Law of

England 424 (1883). In the 1730s, “the old rule which

deprived prisoners of the assistance of counsel in

trials for felony was gradually relaxed.” Id. At that

time, English judges began to allow defense counsel

“for the primary purpose of probing prosecution

testimony on cross-examination.” Langbein, Origins

148.

What emerged in England and America was a

regime of almost unfettered cross-examination. As a

rule, therefore, defense counsel had the right to probe

adverse witnesses “by a minute examination of

circumstances.” Evans 232. It was this “crucible of

meaningful adversarial testing” that the Framers

enshrined in the Sixth Amendment. United States v.

Cronic, 466 U.S. 648, 656 (1984). Limitations like

those imposed by the trial court had no place in this

scheme.

The

emergence

counsel in felony trials

defense

“Whereas much of our trial procedure has

medieval antecedents, prosecution and defense

counsel cannot be called regular until the second half

of the eighteenth century.” John H. Langbein, The

Criminal Trial Before the Lawyers, 45 U. Chi. L. Rev.

263, 263 (1978) (“Lawyers”). At common law, felony

defendants “were prohibited . . . from engaging

lawyers to act for them in court.” J. M. Beattie, Scales

of Justice: Defense Counsel and the English Criminal

Trial in the Eighteenth and Nineteenth Centuries,

9 Law & Hist. Rev. 221, 221 (1991) (“Beattie”).

But beginning in the 1730s, “judges permitted

counsel to assist the defendant in examining and

cross-examining witnesses.” Langbein, Origins 171.

Historians generally agree that two “innovations in

prosecutorial practice” led to this change. Id. at 110.

These were the crown witness system and the reward

system.

Under the crown witness system, “[a]

magistrate . . . would grant immunity from

prosecution for a culprit who agreed to testify against

his former confederates in crime.” Id. at 158. The

reward system, by contrast, paid up to £40 “to persons

who would apprehend and convict offenders who

committed serious property crimes.” Id. at 148. These

two systems “operated in close association” with one

another. Id. at 160. An enterprising accomplice could

secure immunity and a reward by accusing a former

associate. Id.

It was no secret that crown witnesses “testified

under a material incentive to commit perjury.” Id. at

161. As noted by a contemporary judge, “when a man

is fixed, and knows that his own guilt is detected, he

purchases impunity by falsely accusing others.” Id.

Similar motives marred reward cases. A thief-taker

“had no intrinsic interest in whether his £40 bounty

came from convicting the guilty or the innocent.” John

H. Langbein, The Prosecutorial Origins of Defence

Counsel in the Eighteenth Century: The Appearance of

Solicitors, 58 Camb. L. J. 314, 363 (1999)

(“Solicitors”).

These two systems caused scandal in the early

eighteenth century. In several high-profile cases,

thief-takers were caught lying at trial and were

themselves tried for perjury. Langbein, Origins 15258. In one burglary prosecution, a crown witness

admitted at trial to falsely accusing the defendants,

his purported accomplices. Id. at 162. When

questioned by the judge, the witness explained that

the prosecutor (a thief-taker) had threatened to

charge him with the burglary unless he accused

others to fetch a larger award for the thief-taker. Id.

When “judges began to allow felony defendants

to have the assistance of counsel to probe prosecution

evidence at trial,” they did so “with an acute

awareness that both the reward system and the crown

witness system harbored potent incentives for false

witnessing.” Id. at 165.

Cross-examination in eighteenthcentury England

Even after being allowed in felony cases,

defense counsel’s role was limited to “examining and

cross-examining witnesses.” Id. at 171. They still

could not “comment on the evidence” or “narrate the

accused’s version of events.” Id. So not surprisingly,

defense counsel “focused their attention on crossexamination.” Stephan Landsman, Rise of the

Contentious

Spirit:

Adversary

Procedure

Eighteenth Century England, 75 Cornell L. Rev. 497,

535 (1990) (“Landsman”). This tool “offered the

broadest latitude for the development of persuasive

proof with a minimum of restrictions.” Id. And crossexamination of crown witnesses, in particular,

“became a central sphere of the activity of defence

counsel.” Langbein, Solicitors 364.

The uncorroborated nature of accomplice or

thief-taker testimony often made it impossible to

expose contradictions through cross-examination.

Instead, historical records show that defense counsel

used cross-examination to focus on a witness’s

incentive to testify against the accused. Langbein,

Origins 292-93.

In most crown witness cases, the accomplice

had confessed to a capital crime, so his incentive was

obvious. In those situations, cross-examination was

commonly used to remind the jury that a crown

witness would say anything “to save his own life.”

John Armstrong, Old Bailey Session Papers (Jan.

1755) at 75 (“OBSP”).

When the punishment was less severe, defense

counsel used cross-examination to draw out the exact

sentence a crown witness hoped to avoid by testifying.

In one grand larceny prosecution, for example, crossexamination revealed that a crown witness faced a

seven-year sentence in a penal colony:

They talked of sending you to Botany for

seven years; did not they?

I was afraid so.

So you are swearing now to get yourself

out of the scrape?

Yes.

John Langford, OBSP (Jan. 1788) at 183.

In reward cases, defense counsel likewise used

cross-examination to explore the precise amount at

stake. They would ask whether it was “not every day

that one gets forty pounds for hanging a man,” James

Wingrove, OBSP (May 1784) at 820, or simply, “What

is the price of the blood of these men, if they are

convicted?” George Norris, OBSP (Jan. 1785) at 272.

From these trial records, “[t]he broad scope

accorded the right to cross-examine is readily

apparent.” Landsman 541. And this breadth is

especially apparent for a witness’s bias. Id. In one

counterfeiting case, a mint employee bristled when

defense counsel asked if he expected to receive a share

of the reward. John Morgan, OBSP (Jan. 1782) at 147.

The court promptly instructed the witness that the

question was proper and required an answer:

“Whatever the operation of the question may be, is for

the judgment of the jury; the question is certainly a

proper one; whether there is a reward, and do you

expect a part of it.” Id. a 147-48. The reason for this

latitude was simple: “[T]he jury have a right to know

the circumstance in which a witness stands.” Id. at

148.

A witness’s obligation to answer any question

on cross-examination even extended to those of

doubtful relevance. As one judge explained to a

witness about such a question: “The Relation is very

small, but if they insist on their Question, you must

answer it.” James Annesley, OBSP (July 1742) at 25.

Several leading treatises from the early

nineteenth century confirm that “vigorous crossexamination was an integral part of courtroom

procedure.” Landsman 600.

William Evans’s 1806 treatise observed that

accomplice testimony “very properly occasions a great

degree of caution.” Evans 260. To counterbalance this

“want of veracity,” defense counsel were allowed to

perform “a minute examination of circumstances”

through cross-examination. Id. at 232. In the same

vein, Thomas Peake observed that, on crossexamination, defense counsel “may put what

questions he pleases.” Thomas Peake, A Compendium

of the Law of Evidence 141 (2d ed. 1804).

Samuel Phillipps’s treatise likewise warned

that accomplice testimony “ought to be received by a

jury with considerable caution and distrust.” Samuel

M. Phillipps, Treatise on the Law of Evidence 29 (2d

ed. 1815). This was because, “in the hope of lessening

their own infamy,” accomplices would “often be

tempted to throw as much guilt as possible upon the

prisoner.” Id. An accomplice’s bias, therefore, had to

be “strictly examined and sifted.” Id. at 42. And

defense counsel had “a great latitude . . . in the mode

of putting questions.” Id. at 210.

These treatises also reflect a judge’s limited

role in controlling cross-examination. They generally

let defense counsel “go as far as they pleased.” Evans

269. The rule was that “[w]hatever [could] elicit the

actual dispositions of the witness . . . [was] not only

justifiable but meritorious.” Id. at 268.

In fact, the only disputed issue on the scope of

cross-examination seems to have been “how far a

counsel may . . . inquire into matters foreign to the

cause, for the purpose of affecting the character and

credit of the witness.” Thomas Peake, A Compendium

of the Law of Evidence 189 (2d Am. ed. 1806). There

was “a very considerable difference of opinion” on this

question, but the majority view was that these

questions were “admissible and proper . . . [and]

clearly supported by the course of practice which ha[d]

actually prevailed.” Evans 261. This debate over

matters “foreign to the cause” confirms the lack of any

restrictions on questions directly concerning a

witness’s bias.

In sum, the emergence of defense counsel in

felony cases led to “a new conception of the legal

process, one in which the cross-examination of

witnesses by skilled counsel was of such importance

that the process was rendered suspect without it.”

Landsman 599. As courts and commentators

recognized then, this necessarily meant that defense

counsel “had to be allowed great latitude to ensure

effective examination.” Id. at 599-600.

Confrontation in America

American criminal procedure was, if anything,

even “more protective of the accused.” Randolph N.

Jonakait, The Origins of the Confrontation Clause: An

Alternative History, 27 Rutgers L. Rev. 77, 96 (1995)

(“Jonakait”). Many colonies, for example, formally

permitted defense counsel in ordinary criminal cases

a century or more before England. See Faretta, 422

U.S. at 827. As a result, “America moved more rapidly

than England to an adversary system with defense

cross-examination at its core.” Jonakait 81.

This particular emphasis on defense advocacy

arose, in part, from the unique prominence of public

prosecutors in colonial America. Unlike in England,

American criminal trials “w[ere] not seen as a

relatively equal contest between an alleged victim and

accused.” Id. at 103. Instead, they were seen “as a

lopsided battle not only with a prosecutor, but with

the government in general.” Id. This imbalance meant

that “procedural protections for the accused needed to

grow.” Id.

“[D]efense cross-examination was at the heart

of the new trial system” that emerged in America. Id.

at 115. During the Revolutionary period, eight states

adopted bills of rights, and every one included a

confrontation clause. Murl A. Larkin, The Right of

Confrontation: What Next?, 1 Tex. Tech L. Rev. 67, 75

(1969). The Framers understood confrontation as

securing an accused’s right to “challenge the

information against him, and defense crossexamination had become the chief procedure for

challenging such evidence.” Jonakait 114-15.

The ratification debates reflect crossexamination’s central role in the American justice

system. The Anti-Federalist Brutus argued: “It is of

great importance in the distribution of justice that

witnesses should be examined face to face, that the

parties should have the fairest opportunity of cross

examining them in order to bring out the whole truth.”

Brutus XIV in 1 Bernard Schwartz, The Bill of Rights:

A Documentary History 435 (1971). And Federal

Farmer declared that “[n]othing can be more essential

than the cross examining [of] witnesses.” Letter from

Federal Farmer (Oct. 12, 1787), in id. at 473.

As these sources show, the Framers understood

that “the accused had to be guaranteed the tools

necessary to make an adversarial presentation to the

jury,” including “tools to challenge the evidence

against him.” Jonakait 114. The Sixth Amendment

accomplished this purpose by “constitutionaliz[ing]

the right in an adversary criminal trial to make a

defense as we know it,” or, more specifically, as the

Framers knew it. Faretta, 422 U.S. at 818.

While early American criminal records are

sparse, the sources that do exist reveal that American

courts aligned with their English counterparts on the

broad scope of cross-examination. To start, the leading

English treatises discussed above were so popular in

America that numerous American editions were

promptly published. See, e.g., Thomas Peake, A

Compendium of the Law of Evidence (2d Am. ed.

1806); Samuel M. Phillipps, Treatise on the Law of

Evidence (2d Am. ed. 1820). American courts also

cited them as authoritative. See Faugier v. Hallett, 2

Johns. Cas. 233, 235 (N.Y. Sup. Ct. 1801) (citing

Peake); Sheppard v. Taylor, 30 U.S. 675, 697 (1831)

(citing Evans).

Consistent with these authorities, nineteenth

century cases reveal the considerable breadth of crossexamination in America. In Commonwealth v. Sacket,

39 Mass. 394, 396 (1839), for example, the

Massachusetts Supreme Court ordered a new trial

when defense counsel was stopped from asking an

adverse witness about the potential reward for his

testimony. The court explained that “[o]n crossexamination great latitude is allowed to counsel in

putting questions to test the accuracy or credibility of

the witness.” Id. at 395-96. A trial court’s discretion

permitted limitations on “matters irrelevant to the

point in issue.” Id. at 396 (emphasis added). But

because a witness’s motivation “was material to the

issue under consideration, . . . it was a matter of right

for the party to have it answered.” Id.; see also

Newcomb v. State, 37 Miss. 383, 403 (1859) (“It is a

general rule, that anything legitimately tending to

show that a witness is under undue feeling or bias . . .

may be shown to the jury . . . .”).

The widest breadth of cross-examination

applied to accomplices. Courts recognized that

accomplices testified “under the influence of the most

powerful motive that can shape human conduct.”

Kent, 4 N.D. at 598. The rule, therefore, was to subject

accomplices to “[t]he utmost latitude of crossexamination justified by the law.” Williams, 18 Cal. at

191. This well-established right to “a full and

searching cross-examination” of accomplices meant

that “no[thing] in the least bearing on the question of

credibility . . . should be excluded.” People v. Haynes,

38 How. Pr. 369, 380 (N.Y. App. Term 1868).

American treatises roughly contemporaneous

with ratification of the Fourteenth Amendment

confirm the persistence of this principle. See James F.

Stephen, A Digest of the Law of Evidence 185-86 n.1

(May ed. 1877) (noting “a tendency, no doubt, towards

great liberality of cross-examination for the purpose

of ascertaining who and what the witness is”).

Professor Francis Wharton observed that “[g]reat

latitude . . . is allowed in the cross-examination of an

accomplice, and the most searching questions are

permitted in order to test his veracity.” Francis

Wharton, A Treatise on the Law of Evidence in

Criminal Issues 359 (8th ed. 1880) (“Wharton”). And a

popular legal encyclopedia noted that “[w]here an

accomplice testifies as a witness, a liberal and full

cross-examination . . . should be permitted.” 1 The

American and English Encyclopedia of Law 78

(Merrill ed. 1887).

The historical record shows that before, at, and

after the founding, defendants enjoyed broad latitude

in the cross-examination of adverse witnesses,

particularly accomplices. At most, judges could limit

irrelevant questioning. But on the central issue of a

witness’s incentive to testify, there were no limits.

This was the understanding of cross-examination that

the Framers enshrined in the Confrontation Clause.

From this perspective, “limiting crossexamination to generalized phraseology,” App. 11-12,

flouts the original meaning of the Confrontation

Clause. In this case, the government never questioned

the relevance of petitioner’s proposed crossexamination about mandatory minimum sentences.

Nor could it have, as “[t]he partiality of a witness . . .

is always relevant.” Davis, 415 U.S. at 316. The trial

court’s prohibition on relevant cross-examination into

bias, therefore, violated the Confrontation Clause.

The Eighth Circuit applied the wrong

standard of review.

The Eighth Circuit reviewed petitioner’s

Confrontation Clause claim for an abuse of discretion.

App. 9. This was error.

A Confrontation Clause violation occurs when

a defendant is “prohibited from engaging in otherwise

appropriate cross-examination designed to show a

prototypical form of bias.” Van Arsdall, 475 U.S. at

680. This is a question of law that merits de novo

review. The trial record provides the only facts

relevant to this inquiry—i.e., what questions were

prohibited. And whether a district court “applied the

proper standard to essentially undisputed facts”

presents a question of law. United States v. Parke,

Davis & Co., 362 U.S. 29, 44 (1960).

De novo review is also “consistent with the

position [this Court] ha[s] taken in past cases.”

Ornelas v. United States, 517 U.S. 690, 697 (1996). In

defining the Confrontation Clause’s scope, this Court

has never “expressly deferred to the trial court’s

determination.” Id.; see, e.g., Davis, 415 U.S. at 319;

Chambers v. Mississippi, 410 U.S. 284, 297-98 (1973);

Olden v. Kentucky, 488 U.S. 227, 232 (1988). Instead,

this Court has asked—without deference—whether a

“court’s ruling violated [an accused’s] rights secured

by the Confrontation Clause.” Van Arsdall, 475 U.S.

at 679.

Even if Confrontation Clause violations were

considered mixed questions of law and fact, de novo

review would still be appropriate. On such questions,

this Court considers several factors to determine

which “judicial actor is better positioned” to make the

decision. Miller v. Fenton, 474 U.S. 104, 114 (1985).

These factors include whether the legal rule at issue

“acquire[s] content only through application,” as well

as de novo review’s tendency to “unify precedent” and

“stabilize the law.” Ornelas, 517 U.S. at 697-98.

“In the constitutional realm,” however, “the

calculus changes.” U.S. Bank N.A. v. Vill. at

Lakeridge, LLC, 138 S. Ct. 960, 967 n.4 (2018). On

constitutional questions, “the role of appellate courts

‘in marking out the limits of a standard through the

process of case-by-case adjudication’ favors de novo

review even when answering a mixed question

primarily involves plunging into a factual record.” Id.

By any standard, therefore, Confrontation

Clause violations should receive de novo review. Cases

in this area do not involve “narrow facts that utterly

resist generalization.” Pierce v. Underwood, 487 U.S.

552, 562 (1988). Quite the opposite. The ubiquity of

plea bargains and mandatory minimums routinely

presents the exact question at issue here. The answer

to that question turns on the correct interpretation of

the Confrontation Clause, not on factual

determinations peculiar to a given case. Finally, the

inconsistent treatment of this issue in different

jurisdictions confirms that de novo review would help

“unify precedent” and clarify the protected scope of

cross-examination. Ornelas, 517 U.S. at 697-98.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Gregory J. DuBoff

Counsel of Record

Brian D. Schmalzbach

APPELLATE JUSTICE

INITIATIVE AT

MCGUIREWOODS LLP

800 East Canal Street

Richmond, VA 23219

(804) 775-1154

gduboff@mcguirewoods.com

June 21, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.