Petition for Writ of Certiorari — Sean Paul Baker, Petitioner v. United States

Supreme Court briefFeb 20, 2026

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SEAN PAUL BAKER, PETITIONER,

UNITED STATES OF AMERICA, RESPONDENT.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

MAUREEN SCOTT FRANCO

Federal Public Defender

CARL R. HENNIES

Assistant Federal Public Defender

Counsel of Record

OFFICE OF THE FEDERAL

PUBLIC DEFENDER

WESTERN DISTRICT OF TEXAS

300 Convent Street, Suite 2300

San Antonio, Texas 78205

Carl_Hennies@fd.org

(210) 472-6700

Counsel for Petitioner

QUESTION PRESENTED

Whether the confrontation compelled by the Confrontation

Clause is restricted to only cross-examination demonstrating a

witness’s bias or motive to lie.

RELATED PROCEEDINGS

United States District Court for the Eastern District of Oklahoma:

United States v. Sean Paul Baker,

No. 6:22-cr-34 (Feb. 23, 2024)

United States Court of Appeals for the Tenth Circuit:

United States v. Sean Paul Baker,

No. 24-7017 (Oct. 27, 2025)

iii

TABLE OF CONTENTS

Question presented......................................................................... i

Related proceedings....................................................................... ii

Table of authorities....................................................................... iv

Introduction ................................................................................... 1

Opinion below ................................................................................ 3

Jurisdiction.................................................................................... 3

Constitutional provisions involved ................................................ 4

Statement ...................................................................................... 4

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

B. Proceedings below....................................................... 5

Reasons for granting the petition ................................................ 10

The courts of appeals are divided over the scope of

the Confrontation Clause. ............................................... 10

II. The decision below is wrong. ........................................... 12

III. This is a critically important question. ........................... 16

IV. This case is an ideal vehicle. ........................................... 17

Conclusion ................................................................................... 18

Appendix

Court of appeals opinion (Oct. 27, 2025) ..................................... 1a

TABLE OF AUTHORITIES

Cases

Boggs v. Collins,

226 F.3d 728 (6th Cir. 2000) ..................................................... 11

California v. Green,

399 U.S. 149 (1970) .................................................................. 17

Cotto v. Herbert,

331 F.3d 217 (2d Cir. 2003) ....................................................... 12

Crawford v. Washington,

541 U.S. 36 (2004) ...........................................................4, 14, 17

Davis v. Alaska,

415 U.S. 308 (1974) .................................. 1, 2, 4, 5, 12, 13, 15–17

Delaware v. Van Arsdall,

475 U.S. 673 (1986) .........................................................5, 13, 18

Lilly v. Virginia,

527 U.S. 116 (1999) .................................................................... 4

Michigan v. Lucas,

500 U.S. 145 (1991) ............................................................ 13, 14

Olden v. Kentucky,

488 U.S. 227 (1988) .................................................................... 5

Rock v. Arkansas,

483 U.S. 44 (1987) .................................................................... 14

United States v. A.S.,

939 F.3d 1063 (10th Cir. 2019).............................................. 9, 10

United States v. Abel,

469 U.S. 45 (1984) .............................................................. 13, 14

United States v. Hill,

322 F.3d 301 (4th Cir. 2003) ..................................................... 11

United States v. Roldan-Zapata,

916 F.2d 795 (2d Cir. 1990) ....................................................... 12

United States v. Tansley,

986 F.2d 880 (5th Cir. 1993) ..................................................... 11

United States v. Vega Molina,

407 F.3d 511 (1st Cir. 2005) ...................................................... 11

White v. Coplan,

399 F.3d 18 (1st Cir. 2005) ........................................................ 11

Constitutional Provisions

U.S. Const. amend. VI.................................................................... 4

Statutes

28 U.S.C. § 1254(1) ........................................................................ 3

Other Authorities

5 John H. Wigmore, EVIDENCE § 1367 (3d ed. 1940) .................... 17

Rosanna Cavallaro, Rape Shield Evidence and the Hierarchy

of Impeachment, 56 AM. CRIM. L. REV. 295 (2019)..................... 13

SEAN PAUL BAKER, PETITIONER,

UNITED STATES OF AMERICA, RESPONDENT.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner Sean Paul Baker respectfully petitions for a writ of

certiorari to review the judgment of the United States Court of

Appeals for the Tenth Circuit.

INTRODUCTION

The Confrontation Clause of the Sixth Amendment guarantees

defendants an opportunity “to expose to the jury the facts from

which jurors, as the sole triers of fact and credibility, could

appropriately draw inferences relating to the reliability of [a]

witness.” Davis v. Alaska, 415 U.S. 308, 318 (1974). But the court

of appeals below applied an exceedingly narrow interpretation of

the Confrontation Clause, holding that only cross-examination

demonstrating a witness’s potential bias or motive to lie is

constitutionally compelled. Commentators have criticized this

hierarchy of impeachment that places bias and motive above other

evidence that bears on the accuracy and truth of a witness’s

testimony. There is no basis—either in history or in common

sense—for such a distinction.

This case proves the point. With no physical evidence of sexual

assault, this case came down to “he said, she said”: an alleged

victim’s allegations and Baker’s adamant denial. The government

repeatedly argued to the jury that it was implausible that the

alleged victim, a 12-year-old, could make up detailed sexual

stories. But when Baker tried to introduce evidence that directly

contradicted this argument—videos that she publicly posted on

YouTube narrating imaginary stories about sex involving fictional

characters—the district court excluded them under Federal Rule

of Evidence 412 and held that cross-examination about the videos

was not compelled by the Confrontation Clause. So although “[i]t

would be difficult to conceive of a situation more clearly illustrating

the need for cross-examination,” see Davis, 415 U.S. at 314, the jury

was deprived of crucial information relevant to the alleged victim’s

credibility. And the Tenth Circuit affirmed on the basis that while

the alleged victim’s motive to fabricate her testimony would be

subject to constitutionally compelled cross-examination, her ability

to fabricate her testimony is not.

The courts of appeals are divided over the scope of the

Confrontation Clause. Several circuits join the Tenth Circuit in

imposing a hierarchy of impeachment that places bias and motive

on unique footing above all other potential impeachment evidence—

no matter how strong or relevant to a witness’s credibility. By

contrast, other circuits recognize that the Confrontation Clause

calls for a more nuanced, case-by-case analysis. This Court should

grant certiorari to resolve the circuit split on this important

constitutional issue and to correct the Tenth Circuit’s fundamental

misunderstanding of the Confrontation Clause.

OPINION BELOW

The Tenth Circuit’s opinion is reported at 157 F.4th 1215 and

is reproduced at App. 1a–23a.

JURISDICTION

The Tenth Circuit entered its judgment on October 27, 2025.

On January 2, 2026, Justice Gorsuch extended the time to petition

for a writ of certiorari to February 24, 2026. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment provides: “In all criminal prosecutions,

the accused shall enjoy the right … to be confronted with the

witnesses against him ….”

STATEMENT

Legal background.

1. The Sixth Amendment guarantees a defendant the right “to

be confronted with the witnesses against him.” U.S. Const. amend.

VI. “Confrontation means more than being allowed to confront the

witness physically.” Davis, 415 U.S. at 315. “The central concern of

the Confrontation Clause is to ensure the reliability of the evidence

against a criminal defendant by subjecting it to rigorous testing in

the context of an adversary proceeding before the trier of fact.” Lilly

v. Virginia, 527 U.S. 116, 123–24 (1999). “Cross-examination is the

principal means by which the believability of a witness and the

truth of his testimony are tested.” Davis, 415 U.S. at 316. So while

the confrontation right does not demand that “evidence be reliable,”

it does require that “reliability be assessed in a particular manner:

by testing in the crucible of cross-examination.” Crawford v.

Washington, 541 U.S. 36, 61 (2004).

2. The Confrontation Clause guarantees the right to “conduct

reasonable cross-examination.” Olden v. Kentucky, 488 U.S. 227,

231 (1988). So a trial court can impose “reasonable limits” on 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). But where a

court “cut[s] off all questioning” about an inquiry that is relevant to

a witness’s credibility, the prohibition violates the Confrontation

Clause. Id. So the Confrontation Clause allows a defendant “to

expose to the jury the facts from which jurors, as the sole triers of

fact and credibility, could appropriately draw inferences relating to

the reliability of the witness.” Davis, 415 U.S. at 318.

Proceedings below.

1. In June 2022, when she was about 12 years old, D.P.

overdosed on antidepressants and anxiety medication. C.A.

R3.139. Because she was nonresponsive, her mother and Baker—

her mother’s husband at the time—drove her to the hospital. Id.

242.

D.P.

described

her

time

the

hospital

“hallucination.” Id. at 115. In the midst of this hallucination, D.P.

told a doctor that Baker had been touching her. Id. at 246. She

does not remember making this allegation. Id. at 115. Based on

D.P.’s allegations,

Baker was charged with two counts of

aggravated sexual abuse in Indian Country and one count

of sexual abuse of a minor in Indian country. C.A. R1.16–17.

2. Before trial, Baker told the government that he intended to

introduce four YouTube videos that D.P. created. C.A. R1.184. In

these videos, D.P. narrated stories involving “fantasy characters

and their fictional sexual conduct.” Id. at 190. The first three videos

are a series. In the first video, D.P. narrates two characters meeting

and the girl telling the boy that she likes him. Baker Ex. 1. In the

next video, the same characters express their love, kiss, and fall

asleep together. Baker Ex. 2. And in the final episode, the girl is

waiting for the boy when he comes home drunk. Baker Ex. 3. They

put on a movie, the boy pulls the girl onto his lap, and he says, “if

you move you will wake it up.” Id. The girl moves anyway, and the

boy starts moaning. Id. Then the boy says, “you asked for it,” pins

the girl to the couch, and starts kissing her. Id. After having sex,

D.P. recounts, they both wake up naked the next morning. Id. The

fourth video is not related to the first three. In this video, D.P.

depicts an imaginary text-message conversation between students.

Baker Ex. 4. A girl has a crush on a boy, invites him to her room,

and they kiss after he shuts the door. Id. According to the video,

they “made out and had a really good night.” Id. The girl says the

boy was “really nois[y],” but she did not care because that meant he

“like[d] it” and she made him “happy in bed.” Id.

The government moved to exclude the videos under Federal

Rule of Evidence 412. C.A. R1.182–91. The district court granted

the government’s motion. The court first held that the videos “fall

squarely within the confines of Rule 412” because they “are sexual

in nature.” Id. at 200. Next, the court determined that excluding

the videos would not violate Baker’s Confrontation Clause rights

because they were not relevant to D.P.’s bias or motive to lie. Id.

At trial, the government’s case hinged on D.P.’s testimony

because there was no physical evidence. During her testimony, the

district court reiterated its earlier determination that Baker could

not ask D.P. about the videos or other sexual content she viewed

online. See C.A. R3.145–46, 153. In its closing argument, the

government

focused on

D.P.’s

credibility.

The

government

repeatedly argued that it was implausible that she could have

“manufactured,” “crafted,” “concocted,” “invented,” or “made up” her

story about sexual abuse. See id. at 449 (government discrediting

the idea that D.P. was “in the hospital manufacturing fake sex

stories”); id. at 497 (“what defense is asking you to do is believe that

a 12-year-old girl that had just attempted suicide was able to craft

a story to set this defendant up”); id. at 498 (“It is not reasonable to

think that [D.P.] … was able to concoct a complicated disclosure.”);

id. (“If she was going to invent a story, wouldn’t she make it a little

less complicated than that?”); id. at 500 (“defense is asking you to

believe that D.P. made all of this up”). The jury found Baker guilty

on all three counts. C.A. R1.325–26.

Baker moved for a new trial because the district court excluded

the videos. C.A. R1.575–80. Baker argued that the videos fell

outside Rule 412 and that excluding the evidence violated the

Confrontation Clause. Id. at 576–77. The district court denied the

motion, reaffirming its earlier holding that the “videos were offered

as evidence of D.P.’s sexual predisposition and were properly

excluded.” R1.656.

3. Baker appealed, and the Tenth Circuit affirmed. App. 1a–23a.

The court acknowledged “that given the absence of physical

evidence, the outcome of the Government’s case against [Baker]

rested on the veracity of D.P.’s sexual abuse allegations.” Id. at 4a.

The court also acknowledged that Baker offered the videos to

“provid[e] the jury a reason to believe D.P. may have fabricated her

allegations of sexual abuse against him.” Id. at 18a. Still, the court

affirmed the exclusion of the videos.

The court first held that the videos were barred by Rule 412(a)

because they “reveal D.P.’s inclination or propensity over a period

of time to engage in sexual fantasy through storytelling.” App.

10a–11a. The court reasoned that “whether the video’s constitute

evidence

of D.P.’s

‘other

sexual behavior’

or her

‘sexual

predisposition’—or both—within the meaning of Rule 412(a) is an

academic inquiry we need not resolve because most assuredly the

videos at the very least constitute evidence of one or the other.” Id.

at 11a.

Next, the court held that neither the right to present a complete

defense under the Fifth Amendment nor the Sixth Amendment’s

Confrontation Clause required admission of the videos. App. 16a–

23a. The court explained that “the class of cases in which evidence

otherwise barred by the rape shield [rule] has been deemed to be

constitutionally compelled is restricted to those which demonstrate

a theory of witness bias or motive to lie.” Id. at 16a–17a (quoting

United States v. A.S., 939 F.3d 1063, 1073 (10th Cir. 2019)).

Recognizing that “some commentators have argued a lack of

justification for a legal cannon that provides constitutional status

only to a theory of impeachment demonstrating a witness’s bias or

motive to lie,” the court still considered itself bound by circuit

precedent. Id. at 19a. So although it acknowledged that Baker

offered the videos to “provid[e] the jury a reason to believe D.P. may

have fabricated her allegations of sexual abuse against him,” it held

that this was a “general” attack on her credibility that was not

compelled by the Confrontation Clause. Id. at 18a–19a.

REASONS FOR GRANTING THE PETITION

The courts of appeals are divided over the scope of

the Confrontation Clause.

The courts of appeals are divided over what types of cross-

examination are compelled by the Confrontation Clause. Several

courts read the Confrontation Clause—and this Court’s precedent—

exceedingly narrowly to protect only cross-examination about a

witness’s bias or motive to lie. Other courts, by contrast, recognize

that the Confrontation Clause calls for a balancing test and requires

cross-examination that is sufficient to establish a reasonably

complete picture of a witness’s credibility—regardless of the precise

theory of impeachment.

1. Below, the Tenth Circuit held that the class of cases in which

cross-examination is “constitutionally compelled is restricted to

those which demonstrate a theory of witness bias or motive.” App.

16–17 (quoting A.S., 939 F.3d at 1073). The Sixth Circuit has

reached the same conclusion, noting the “precise distinctions drawn

in Confrontation Clause jurisprudence” and holding that “the Sixth

Amendment only compels cross-examination if that examination

aims to reveal the motive, bias or prejudice of a witness/accuser.”

Boggs v. Collins, 226 F.3d 728, 739–40 (6th Cir. 2000) (emphasis

added). So too has the Fourth Circuit, which has held that “to prove

that the exclusion of the evidence was unconstitutional, the

defendant must show that his evidence went directly to the issue of

bias of the witness, or motive of the witness to fabricate.” United

States v. Hill, 322 F.3d 301, 304 (4th Cir. 2003) (emphasis added).

And the Fifth Circuit has also held that the “relevant inquiry is

whether the jury had sufficient information to appraise the bias and

motives of the witness.” United States v. Tansley, 986 F.2d 880, 886

(5th Cir. 1993).

2. Other courts of appeals, however, have rejected such a brightline rule. For example, the First Circuit has held that the

Confrontation Clause “calls for a balancing of interests depending

on the circumstances of the case.” White v. Coplan, 399 F.3d 18, 24

(1st Cir. 2005). Recognizing that the “strength of impeachment

evidence falls along a continuum,” id., the court concluded that the

Confrontation Clause “includes the right to conduct such crossexamination as is reasonably necessary to delineate and present the

defendant’s theory of defense,” United States v. Vega Molina, 407

F.3d 511, 522 (1st Cir. 2005). The Second Circuit has also held that

proper impeachment is not limited to bias or motive. “In addition to

demonstrating bias, the defendant is entitled to use cross-

examination to impeach the witness’s recollection, ability to

observe, and general credibility.” Cotto v. Herbert, 331 F.3d 217, 249

(2d Cir. 2003) (emphasis added). Under that court’s analysis, a jury

must have “facts sufficient to make a discriminating appraisal of

the particular witness’s credibility.” United States v. RoldanZapata, 916 F.2d 795, 806 (2d Cir. 1990) (cleaned up).

II.

The decision below is wrong.

The Tenth Circuit’s conclusion that “the class of cases in which

evidence otherwise barred by the rape shield [rule] has been

deemed to be constitutionally compelled is restricted to those

which demonstrate a theory of witness bias or motive to lie,” App.

16a–17a, is wrong.

1. The Tenth Circuit said that its holding “follows” from this

Court’s decision in Davis. App. 17a. Not so. Although Davis

distinguished between a “general attack” on credibility and a “more

particular attack” on credibility “directed toward revealing possible

biases, prejudices, or ulterior motives of the witness as they may

relate directly to issues or personalities in the case at hand,” 415

U.S. at 316, the Court never drew a bright line between bias and

motive on one hand and other credibility evidence on the other. In

fact, the Court held that “defense counsel should have been

permitted to expose to the jury the facts from which jurors, as the

sole triers of fact and credibility, could appropriately draw

inferences relating to the reliability of the witness.” Id. at 318. Facts

relating to the reliability of a witness can encompass far more than

just bias or motive. And whether “[a] reasonable jury might have

received a significantly different impression of [the witness’s]

credibility,” Van Arsdall, 475 U.S. at 680, does not turn on a

particular theory of impeachment.

Indeed, one commentator has held that this kind of “hierarchy

of impeachment”—placing bias and motive above other theories of

impeachment—“defies both logic and common sense.” Rosanna

Cavallaro,

Rape

Shield

Evidence

and

the

Hierarchy

Impeachment, 56 AM. CRIM. L. REV. 295, 296 (2019). After all, other

forms of impeachment “might, in individual cases, ‘bear on the

accuracy and truth of a witness’ testimony,’ and might in those

instances be far more likely than bias evidence to be determinative

of a jury’s assessment of a witness or a defense.” Id. at 297 (quoting

United States v. Abel, 469 U.S. 45, 52 (1984)) (cleaned up).

The Tenth Circuit’s bright-line rule is also inconsistent with this

Court’s precedent. This Court has held that the “right to present

relevant testimony … ‘may, in appropriate cases, bow to

accommodate other legitimate interests in the criminal trial

process.’” Michigan v. Lucas, 500 U.S. 145, 149 (1991) (quoting Rock

v. Arkansas, 483 U.S. 44, 55 (1987)). The question then becomes

whether restrictions on a defendant’s right to confront witnesses is

“arbitrary or disproportionate to the purposes they are designed to

serve.” Id. at 151 (quoting Rock, 483 U.S. at 56). That inquiry

requires a case-by-case analysis—weighing the probative value of

the particular evidence and the opposing state interest—not per se

rules. See id. But here the Tenth Circuit eschewed that kind of

balancing test, ignoring the high probative value of the videos to

impeach D.P.’s credibility and the low state interest in protecting

her privacy under Rule 412 since she publicly posted the videos on

YouTube. The Tenth Circuit’s categorical approach cannot be

squared with this Court’s precedent.

And even if Davis did draw a distinction between bias and

motive on one hand and other impeachment evidence on the other,

it did not articulate any historical basis for that distinction. And this

Court has since made clear that courts must look to the “historical

background of the [Confrontation] Clause to understand its

meaning.” Crawford, 541 U.S. at 43. And this Court has explained

that the jury has “historically been entitled to assess all evidence

which might bear on the accuracy and truth of a witness’

testimony”—not just evidence relevant to specific theories of

impeachment. Abel, 469 U.S. at 52 (emphasis added).

3. In determining that excluding the videos and prohibiting

cross-examination about them did not violate Baker’s Confrontation

Clause rights, the Tenth Circuit relied on rationales that this Court

has rejected.

a. The Tenth Circuit noted that Baker “attacked D.P.’s

credibility throughout the trial.” App. 20a. But that misses the

point. Without cross-examining D.P. about the videos, Baker was

deprived of any way to show the jury that D.P. was capable of

making up detailed stories about sex. In Davis, this Court rejected

the conclusion that some cross-examination was adequate to attack

the witness’s credibility because counsel was “unable to make a

record” on evidence crucial to credibility. 415 U.S. at 318. So too

here. None of the other cross-examination Baker engaged in

brought to light the fact that D.P. had the ability to make up

fantastical stories about sex. “[T]o make any such inquiry effective,

defense counsel should have been permitted to expose to the jury

the facts from which jurors, as the sole triers of fact and credibility,

could appropriately draw inferences relating to the reliability of the

witness.” See id.

b. The Tenth Circuit also noted that discussion of the videos

would be “embarrassing and discomforting to D.P.” App. 15a.

Again, this Court has rejected this argument, explaining that

“[w]hatever temporary embarrassment might result to [a witness]

… is outweighed by petitioner’s right to probe into the influence of

possible bias in the testimony of a crucial identification witness.”

Davis, 415 U.S. at 319. In other words, the government’s “desire

that [a witness] fulfill his public duty to testify free from

embarrassment and with his reputation unblemished must fall

before the right of petitioner to seek out the truth in the process of

defending himself.” Id. at 320. So too here.

3. In short, Baker

was

prohibited

from rebutting

the

government’s theory—central to its case and repeated many times

in its closing argument to the jury—that the alleged victim was

incapable of making up detailed sexual stories by introducing

evidence that she was capable of just that. “Serious damage to the

strength of the [government’s] case would have been a real

possibility had [Baker] been allowed to pursue this line of inquiry.”

See Davis, 415 U.S. at 319. The Tenth Circuit’s decision holding that

cross-examination about the videos was not constitutionally

compelled simply because they were not being offered solely as

evidence of bias or motive was wrong.

III.

This is a critically important question.

The scope of the Confrontation Clause is a critically important

question. After all, cross-examination is the “greatest legal engine

ever invented for the discovery of truth.” California v. Green, 399

U.S. 149, 158 (1970) (5 John H. Wigmore, EVIDENCE § 1367 (3d ed.

1940)). By restricting the cross-examination guaranteed by the

Confrontation Clause to evidence of bias or motive, several courts of

appeals are unjustifiably limiting the ability of defendants to test a

witness’s testimony in the “crucible of cross-examination” and to

“expose to the jury the facts from which jurors, as the sole triers of

fact and credibility, could appropriately draw inferences relating to

the reliability of the witness.” Crawford, 541 U.S. at 61 (first quote);

Davis, 415 U.S. at 318 (second quote).

IV.

This case is an ideal vehicle.

This case presents an ideal vehicle for addressing the question

presented. There are no jurisdictional problems, factual disputes,

or preservation issues. The Tenth Circuit, in a published opinion,

cleanly addressed Baker’s argument that the district court

violated his constitutional rights by prohibiting him from

confronting D.P. with the videos. App. 16a–23a. And it did so

despite acknowledging that commentators had criticized its

approach

“lack[ing]

justification”

and

“constitutionally

unsupportable.” Id. at 19a (cleaned up). The non-bias, non-motive

cross-examination here was also uniquely crucial, because it went

to the heart of the government’s theory in a case that turned solely

on the credibility of the alleged witness. It is likely that a

“reasonable jury might have received a significantly different

impression of [D.P.’s] credibility” had the district court allowed the

cross-examination. See Van Arsdall, 475 U.S. at 680.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.