Amicus Curiae Brief — Delaware v. Van Arsdall

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No. 84-1279

Supreme Court, U.S,

FILED

SEP 9 1985

JOSEPH F. SPA OL, JR.

In the Supreme Court of the United States

OCTOBER TERu, 1985

STATE OF DELAWARE, PETITIONER

Vv.

ROBERT E. VAN ARSDALL

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF DELAWARE

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

CHARLES FRIED

Acting Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

VINCENT L. GAMBALE

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether an erroneous restriction upon a defendant’s op-

portunity to impeach an adverse witness by showing that he

may be biased in favor of the prosecution requires that the

defendant’s conviction be set aside without any regard to

whether the defendant was prejudiced by the error.

(I)

TABLE OF CONTENTS

Page

Interest of the United States 1

n˙unůͥñi v! 1

, 9

Argument:

The erroneous restriction of a defendant’s oppor-

tunity to demonstrate bias on the part of a prosecu-

tion witness does not require automatic reversal

without regard to prejudice ................... 11

cc ˙•˙è⅛ʃ˙̈·é 27

TABLE OF AUTHORITIES

Cases:

Alford v. United States, 282 U.S. 687 ù 7 18, 19,

20, 26

Barber v. Page, 390 U.S. 719 .............. 18

Barker v. Wingo, 407 U.S.514............. 16

Brookhart v. Janis, 384 U.S.1...... 18, 19, 20, 21

Brown v. United States, 411 U.S. 223 ....... 13, 23

Bruton v. United States, 391 U.S. 123. 23

California v. Green, 399 U.S. 1999. 26

California v. Trombetta, No. 83-305 (June 11,

7 ¾ —ͤk—̃ » veins eces as 25

Carrillo v. Perkins, 723 F.2d 11665. 11

Chambers v. Maroney, 399 U.S. 2 13

Chambers v. Mississippi, 410 U.S. 284 18

Chapman v. California, 386 U.S. 18 ....12, 13, 14,

15, 21, 24

Chipman v. Mercer, 628 F.2d 528 .......... 12

Coleman v. Alabama, 399 U. S. II. 13

Commonwealth v. Wilson, 381 Mass. 90, 407

ee ad ide suk oo ce 00.¢ 6.0 12

Connecticut v. Johnson, 460 U.S. 73 ........ 15

Davis v. Alaska, 415 U.S. 308 ............ passim

Douglas v. Alabama, 380 U. S. 419. 18

Cases - Continued Page

Drope v. Missouri, 420 U.S. 16ù2ù2V2 . 14

Dutton v. Evans, 400 U.S. ũ4444 ... 23, 26

Faretta v. California, 422 U.S. 8000 15

Gideon v. Wainwright, 372 U.S. 33333. 14, 18

Giglio v. United States, 405 U.S. 1500. 24

Harrington v. California, 395 U.S. 250 15, 23

Harrison v. United States, 392 U.S. 21999999. 11

Hopper v. Evans, 456 U.S. 60õb 13

Kines v. Butterworth, 669 F. 2d 6, cert. denied, 456

%%% ane ee ee a tees kee 0 11-12

Kotteakos v. United States, 328 U.S. 750 —

Mabry v. Johnson, No. 83-328 (June 11, 19843) 15

Mattox v. United States, 156 U.S. 23777. 26

McKaskle v. Wiggins, No. 82-1135 (Jan. 23,1984). 15

Milton v. Wainwright, 407 U.S. 371 ............ 13, 15

Moore v. Dempsey, 261 U.S 86................. 15

Moore v. Illinois, 434 U.S. 220 ................ 13

Motes v. United States, 178 U.S. 45858. 22, 23

Napue v. Illinois, 360 U.S. 26ù⸗ũlr ii 24

Ohio v. Roberts, 448 U.S. 50007e 17, 26

Parker v. Randolph, 442 U.S. 62 ............... 23

Patterson v. McCarthy, 581 F.2d 2200 12

Payne v. Arkansas, 356 U.S. 5 ͥõũũ 15

Pointer v. Texas, 380 U.S. 400 ................ 18, 25

Powell v. Alabama, 287 U.S. 45 18

Ransey v. State, 680 P.2d 596 ................. 12

Roberts v. Russell, 392 U.S. 293 ............... 23

Roviaro v. United States, 353 U.S. 5338. 25

Rugendorf v. United States, 376 U.S.528 ........ 25

Rushen v. Spain, 464 U.S.114............. 12, 13, 23

Sanders v. United States, 373 U.S.1............ 14

Schneble v. Florida, 405 U.S. 427 .............. 23

Smith v. Illinois, 390 U.S. 129 18, 19, 20, 21, 25

Smith v. Phillips, 455 U.S. 209 ................ 15

Snyder v. Coiner, 510 F.2d 224 ................ 12

Snyder v. Massachusetts, 291 U.S.97 ........... 14

State v. Parillo, 480 A.2d 1349 ................ 12

Cases—Continued Page

State v. Patterson, 656 P.2d 438 ............... 12

State v. Pierce, 64 Ohio St.2d 281, 414 N.E.2d

% 12

Strickland v. Washington, No. 82-1554 (May 14,

c vce sdeehs adadees 14, 15, 16, 17, 18

Tennessee v. Street, No. 83-2143 (May 13, 1985) ... 17

Tla-Koo-Yel-Lee v. United States, 167 U.S. 274 ... 18

Tumey v. Ohio, 273 U.S. 510................6. 14

United States v. Abel, No. 83-935 (Dec. 10, 1984) . 24, 26

United States v. Agurs, 427 U.S. 7 24

United States v. Bagley, No. 84-48 (July 2, 1985) ..... 16,

24, 25

United States v. Cronic, No. 82-660 (May 14,

/ ere Py eee ee ee 17, 18, 26

United States v. Duhart, 511 F.2d 7, cert. dis-

ig Oe cy cdc nubs bee 12

United States v. Gambler, 662 F.2d 844 12

United States v. Garza, 754 F.2d 1202 .......... 11

United States v. Harley, 682 F.2d 1018s 25

United States v. Hasting, 461 U.S. 499 ...13, 14, 15, 17

United States v. Jackson, 756 F.2d 703 .......... 12

United States v. Lovasco, 431 U.S. 783 .......... 17

United States v. MacDonald, 435 U.S. 850 ....... 16, 17

United States v. Morrison, 449 U.S. 361 ........ 12, 17

United States v. Nobles, 422 U.S. 225 ........... 13

United States v. Price, 577 F.2d 1356, cert. denied,

r ESSE ee 2 5S pe ag a a 12

United States ex rel. Scarpelli v. George, 687 F. 2d

1012, cert. denied, 459 U.S. 1111 et 11

United States v. Smith, 748 F.2d 1091 11

United States v. Uramoto, 638 F.2d 84... 12

United States v. Valenzuela-Bernal, 458 U.S.

ccc 17, 25

United States v. Williams, 668 F.2d 10644 12

United States v. Whitt, 718 F.2d 1494 .......... 11

United States v. Young, No. 83-469 (Feb. 20, 1985) 16

Wainwright v. Sykes, 433 U.S. 7ꝶ2772 . 14

Weatherford v. Bursey, 429 U. S. 5455. 17

Constitution, statutes, and rules: Page

U.S. Const.:

ES ˙ AAA os awe ce cle we 13

Amend. V:

CO ⅛ . mñ? ! AF 13

Self-Incrimination Clause ................. 13

DTD „„ 9, 17, 18

e . . . .. ee passim

Compulsory Process Clause ............... 17

, dé eeeeeaes 13, 17

„ „ „„ 17

r 13

Del. Code Ann. tit. 11:

ray Lib dednd deGceev cadets l

§ 1447 (1979 & Supp. 1984) ................... l

r ͥ ¶¶ T2 ̃ͤ meee 13, 16

Fed. R. E vid.:

r ̃ d... bavba ne eure 26

r ̃ S 26

Miscellaneous:

McCormick's Handbook of the Law of Evidence (E.

, 0505s cessaekbacness 24, 26

R. Traynor, The Riddle of Harmless Error (1970) . 14

5 J. Wigmore, Evidence in Trials at Common Law

EEE 25

In the Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-1279

STATE OF DELAWARE, PETITIONER

Vv.

ROBERT E. VAN ARSDALL

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF DELAWARE

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The question presented by this case is whether an er-

roneous restriction upon a defendant’s opportunity to im-

peach a witness by showing that he is biased in favor of the

prosecution requires that the defendant’s conviction be set

aside without any consideration of whether the error was

prejudicial. The Court’s resolution of this issue will apply

equally to federal and state prosecutions.

STATEMENT

Following a jury trial in Kent County, Delaware, Superior

Court, respondent was convicted of first degree murder, in

violation of Del. Code Ann. tit. 11, § 636(aX1) (1979), and

possession of a deadly weapon during the commission of a

murder, in violation of Del. Code Ann. tit. 11, § 1447 (1979 &

Supp. 1984). Respondent was sentenced to life imprisonment

without the possibility of probation or parole on the murder

conviction and to a consecutive 30-year term of imprisonment

on the weapons charge (J.A. 2). On respondent’s appeal, the

Delaware Supreme Court reversed his convictions on the

(1)

ground that the trial judge had improperly restricted cross-

examination of prosecution witness Robert Fleetwood in con-

travention of the Confrontation Clause of the Sixth Amend-

ment (Pet. App. Al-A23).

1. Shortly after midnight on January 1, 1982, Doris Epps

was stabbed to death in an apartment in Smyrna, Delaware,

following a New Year’s Eve party. Respondent and Daniel

Pregent, the only persons in the apartment with Epps at the

time that she was murdered, were arrested at the scene of

the crime and were charged with Epps’ murder. At separate

trials, respondent was convicted and Pregent was acquitted.

a. On December 31, 1981, Pregent and Robert Fleetwood

held a joint New Year’s Eve party in their adjacent apart-

ments (Pet. App. A2). The party lasted from late morning un-

til shortly before midnight, and more than a dozen guests at-

tended the party on and off during the course of the day (ibid.

II Tr. 91-94; J.A. 73-80, 121-123). The victim of the murder,

Doris Epps, joined the party at roughly 4:00 p.m. and stayed

for the remainder of the day (II Tr. 93, 118-119; III Tr. 45, 56;

J. A. 78-79, 88).! Respondent, an acquaintance of Fleetwood

and Pregent (X Tr. 28), stopped briefly at the party during

that day (Pet. App. A2; II Tr. 94; J.A. 79-80, 90).

At roughly 11:25 p.m., respondent returned to Pregent's

apartment (III Tr. 29-33; X Tr. 18-41). By that time, the party

was over. Pregent had quarreled with a female guest and had

kicked a hole in a hallway wall (III Tr. 48). Epps had become

intoxicated and passed out at about 10:30 p.m., and she was

placed on a sofa bed in Pregent’s living room (II Tr. 111-113).

Afterwards, Pregent got into the bed with Epps, and

everyone else left his apartment (II Tr. 107-108). Only Fleet-

wood, Alice Meinier, and Mark Mood remained in

Fleetwood’s apartment (III Tr. 49; IV Tr. 8-13; J.A. 95-96).

At approximately 11:30 p.m., a few minutes after respon-

dent had returned to Pregent’s apartment, Fleetwood walked

across the hall, looked into Pregent's living room from the

December 31 was the final day of Fleetwood’s lease and the electricity

had been turned off in his apartment (II Tr. 118, 130; III Tr. 52; IV Tr. 43,

50). Epps had briefly visited Fleetwood’s apartment earlier that day to in-

quire about renting it (II Tr. 118, 123; III Tr. 45; J. A. 78-79).

ee — — ...

doorway, and saw respondent sitting on the end of a sofa bed

next to Pregent’s feet (Pet. App. A3; III Tr. 50). Fleetwood,

who did not have a complete view of the bed, did not see Epps

or anyone else in the apartment; he returned to his own

apartment without speaking to respondent or to Pregent (III

Tr. 50-52, 66-67; J.A. 82-85). Shortly before midnight,

Meinier walked across the hall from Fleetwood’s apartment

to check the clock in Pregent’s kitchen.*? The kitchen light

was on and the clock indicated it was 11:53 p.m. (IV Tr. 14,

51). Meinier immediately returned to Fleetwood’s apartment

without looking into Pregent’s living room, which was dark

(IV Tr. 14). Fleetwood fell asleep on his couch a few minutes

after nearby church bells had chimed in the New Year, but

Meinier and Mood remained awake talking in F ieetwood’s

apartment (III Tr. 53; J.A. 125-128).

Roughly one hour later, respondent knocked at Fleetwood’s

door, and Meinier admitted him (IV Tr. 17). Respondent’s

shirt and hands were splattered with blood, and he was

holding a long, blood-covered knife (id. at 17-20). Respondent

stated that “he had gotten in a fight” but that he “got them

back” (id. at 19, 61-62). After Mood took the knife from

respondent’s hand, Meinier suggested that respondent wash

his hands in the kitchen sink (id. at 21-22). Respondent placed

his wrist watch, which was blood soaked and had a piece of

human tissue clinging to it, on the counter next to the sink

and washed his hands. Respondent then said, “I think there's

something wrong across the hall.” Meinier went to Pregent’s

apartment and discovered Epps’ body lying in a pool of blood

on the kitchen floor. Mood then summoned the police (IV Tr.

65; J.A. 128-134).

The police saw Epps’ disemboweled and mutilated body on

Pregent’s kitchen floor clad only in a sweater and bra. The

kitchen floor, appliances, and cabinets were splattered with

* Meinier did so because Fleetwood’s apartment was without electricity

and she had no way of knowing how close it was to the New Year (J.A.

125).

blood and tissue.“ Blood smears led from the kitchen to

Pregent’s blood-drenched sofa bed, on which the police found

Pregent wrapped in a blanket. The murder weapon, a twelve-

inch serrated kitchen knife with a seven and one-half inch

blade, and respondent’s watch were recovered, respectively,

from Fleetwood’s sink and from his counter top (IV Tr.

111-115, 122-123, 130-136, 140-141; V Tr. 8; VI Tr. 72). At

the scene, respondent, whose clothes and shoes were blood-

splattered, explained to the police that he had gotten covered

with blood “trying to help the woman” (IV Tr. 84-87). Re-

spondent also stated that he “didn’t think it would go like

this” (VII Tr. 72). Both respondent and Pregent were ar-

rested.

b. Later that morning at the police station, respondent

made a tape-recorded statement (J.A. 10-34). According to

his statement, respondent arrived at the party: Pregent’s

apartment in the late afternoon and left at roughly 6:00 p.m.

(J.A. 21-22). After “riding around” with some friends, drink-

ing I qluite a bit,” and visiting another friend’s home outside

of town, respondent returned to Pregent’s apartment near

midnight (J.A. 10, 19, 21-22). He ate a couple of sandwiches,

talked with Pregent for a while, and then went to sleep on

cushions near Pregent’s sofa bed; Pregent got into the sofa

bed with Epps (J.A. 12, 22-23, 28-30). Respondent soon felt

sick and went into the hall to get some air, noticing nothing

unusual in Pregent’s apartment (J.A. 11, 14, 22, 30). Shortly

thereafter, a woman [i.e Meinier] stepped out of

Fleetwood’s apartment and stated that she had heard a noise

(J.A. 23, 31). Respondent followed Meinier into Pregent’s

apartment and found Epps’ body on the kitchen floor. Re-

spondent became soaked with Epps’ blood when he tried to

help Epps, and he washed the blood off his hands in Fleet-

wood’s kitchen sink (J.A. 13-14, 23-24, 26-27, 31). Respond-

ent also claimed that he had lost his Timex watch sometime

after 10:30 p.m. on New Year’s Eve (J.A. 11, 21); he denied

The medical examiner estimated that Epps died between midnight and

1:00 a.m. (II Tr. 66, 80). Epps had been stabbed or cut 18 times in various

parts of her body, including the neck, heart, and vaginal area, and one of

the wounds was a two-foot long incision from the top of the sternum to the

pelvic area (id. at 58-65).

that he had ever held a knife that evening. A. 26) or that he

had sexual intercourse with anyone the night of the crime

(J.A. 18); and he attributed scratches on his arm to his having

played that night with Pregent’s cat (J.A. 15-16).

In another tape-recorded statement given to the police two

days later (J.A. 36-41), respondent retracted most of his

earlier statement, explaining that he had lied in order to

“cover up for my buddy [Pregent]” (J.A. 36). According to

respondent’s revised version of the facts, he returned to

Pregent’s apartment at about 11:30 p.m. (J.A. 37). Pregent

lay down on the sofa bed with Epps, and respondent lay down

on some adjacent cushions (J.A. 37). After respondent heard

noises indicating that Pregent and Epps were engaged in

sexual intercourse, respondent fell asleep (J.A. 39-40).

Respondent was later awakened by Pregent dragging Epps’

body past his feet into the kitchen (J.A. 37, 40). When re-

spondent arose to investigate, Pregent struck him, “daz{ing

him] for a while” (J.A. 37). Respondent then saw Pregent

repeatedly stab Epps in the kitchen; when respondent tried

to pull Pregent away from Epps, Pregent knocked him down

(J.A. 37-38). After Pregent ended his attack on Epps, he

washed himself off and went back to bed (J.A. 38-39). Re-

spondent then pulled the knife from Epps’ body, walked

across the hall to Fleetwood’s apartment, and told Meinier

and Mood that he had been in a fight (J. A. 39).

c. Both of respondent’s statements were introduced at trial

(VII Tr. 84-85). The State also introduced several types of

physical evidence and the testimony of a forensic expert

Pregent also made two tape-recorded statements following his arrest,

which were admitted at trial without objection. In essence, Pregent stated

that, after talking with respondent and after respondent had “stretched out

on some cushions,” he [Pregent] fell asleep on the sofa bed next to the fully-

clothed Epps. Pregent could not sleep and went to Fleetwood’s apartment.

When Pregent returned five minutes later, respondent was still awake and

“everything was still fine.” Pregent then got back into bed with Epps and

“the next thing [he] knew,” he was awakened and arrested by the police.

Pregent claimed that he did not see Epps’ body until after he had been

taken into custody, and he denied having had sexual intercourse with Epps

(J.A. 43-44, 46-47, 52-53, 56).

(e.g., VI Tr. 23-109). According to this expert, the blood found

on the knife and watch recovered from Fleetwood’s apart-

ment, as well as the blood staining the clothes that respon-

dent was wearing when he was arrested, matched Epps’

blood type (VI Tr. 34-49, 56-60, 72, 107-108; IX Tr. 12-13,

16).5 In addition, fibers matching the fibers of Epps’ sweater

and one “Negro” pubic hair, like that of Epps, were found on

respondent’s jockey shorts (VI Tr. 4-42, 54).®

d. The prosecution called Robert Fleetwood as a witness. In

his direct testimony, Fleetwood recounted uncontroverted

facts regarding the party and respondent’s presence at

Pregent's apartment the afternoon of New Year’s Eve and

again later that night an hour or so before Epps was killed

(III Tr. 40-54). In all significant respects, Fleetwood’s

testimony was corroborated by other witnesses, including

respondent, whose own testimony placed him at Pregent’s

apartment at about the same times that Fleetwood placed

him there (II Tr. 94; X Tr. 29, 33; J.A. 140-142).

Near the end of Fleetwood’s cross-examination, defense

counsel sought to impeach Fleetwood by questioning him

about the dismissal of a misdemeanor charge against him—

being drunk on a highway—after he had agreed to speak

with the prosecutor about Epps’ murder (III Tr. 69). When

the prosecutor objected to that inquiry on relevancy grounds,

the trial court allowed counsel to voir dire Fleetwood on the

matter (id. at 70-88). Fleetwood acknowledged that the

drunkenness charge was dropped in exchange for his promise

to speak with the prosecutor regarding Epps’ murder, but he

The pants Pregent was wearing when he was arrested were stained

with blood on the bottom of both legs, indicating that he had stepped into a

large pool of blood (VI Tr. 54-65, 109). A T-shirt recovered from a water-

filled trash can in Pregent’s bathroom had a “very little bloodstain” that

was “smeared and diluted”; a towel and a pair of socks also found in the

trash can had no blood on them (VI Tr. 65-67; VII Tr. 43; IX 37-38).

Based on the physical evidence and photographs of the crime scene, the

forensic expert concluded that Epps had initially been stabbed in Pregent’s

living room next to the sofa bed, that she then fell or was placed o.. the sofa

bed and later dragged by her shoulders izito Pregent's kitchen, where addi-

tional wounds were inflicted (VI Tr. 89-96). Epps’ pants and panties had

been removed before she was assaulted (id. at 105).

denied that the agreement had an effect on his testimony (id.

at 75-76; J. A. 100-107).’? The trial court disallowed any cross-

examination about that agreement (III Tr. 82; J.A. 110) and

also refused to permit defense counsel to cross-examine

Fleetwood about his being questioned by the police in connec-

tion with an unrelated homicide that had occurred after Epps’

murder (III Tr. 83-88; J.A. 111-115).®

e. Respondent was the only defense witness. As in his sec-

ond statement to the police, respondent attributed Epps’

murder to Pregent (X Tr. 17-90). Respondent admitted that

he had visited the party twice during the day and that he

returned shortly before midnight.“ Once there, respondent

ate, talked with Pregent, and played with Pregent’s cat (X

Tr. 43-47). After Pregent left the living room, respondent

had sexual intercourse with Epps on the sofa bed at her in-

vitation.'° Afterwards, Pregent lay down on the bed with

Epps, and respondent reclined on some nearby cushions (id.

at 47-49). Before he fell asleep, respondent heard Pregent

and Epps engaged in sexual intercourse (id. at 49-50). Re-

spondent’s sleep was interrupted by Pregent dragging Epps's

limp body past respondent’s feet (id. at 50-51). When re-

spondent asked Pregent what was going on, Pregent struck

him (id. at 51). Respondent then saw “dark stuff” on the floor,

Fleetwood stated that on the night of the crime he gave a statement to

the police that was basically identical to his trial testimony (J. A. 105).

Additional voir dire was conducted regarding the unrelated homicide;

Fleetwood denied that he had been offered any favors, inducement, prom-

ises, or deals with respect to that homicide in exchange for his testimony at

respondent’s trial (III Tr. 85-86; J.A. 113-114).

® Respondent testified that he had known Fleetwood and Pregent for a

few years and that Pregent had invited him to the party when they met on

the street on the afternoon of December 31, 1981 (X Tr. 26). Respondent

went to Pregent’s apartment, met Epps for the first time, and left after 30

minutes (id. at 28-31). Later that afternoon, respondent returned to the

party, but left a short time later (id. at 33-35). After spending the re-

mainder of the afternoon and evening drinking with friends, respondent

returned to Pregent’s apartment (id. at 35-41; J.A. 140-142).

10 No seminal fluid was found on any item of Epps’ clothing or on any

other item that was analyzed by the government’s forensic expert (VI Tr.

42). The medical examiner did not state, however, whether any fluid was

found on Epps (II Tr. 52-88).

put on his shoes because the floor “was wet,” and walked to

the doorway of the kitchen (id. at 51-52). Respondent saw

Pregent squatting over Epps in the kitchen, stabbing and

cutting her (id. at 52-53). Respondent grabbed Pregent, but

was knocked down (id. at 53-54).!! The next thing respondent

remembered was seeing Pregent exit the utility room of the

apartment (id. at 54). When Pregent walked back to the liv-

ing room, respondent pulled the knife from Epps’ body—to

protect himself from Pregent, respondent claimed (id. at 56,

70-71)—and went to Fleetwood’s apartment to get help (id.

at 57-58). After washing the blood off his hands in

F leetwood’s kitchen sink (id. at 59), respondent and Meinier

went to Pregent’s apartment, and respondent checked Epps’s

wrist for a pulse (id. at 60-61). Finding none, they returned to

Fleetwood’s apartment and tried unsuccessfully to wake up

Fleetwood (id. at 61-62).

Defense counsel admitted in their opening and closing

arguments to the jury that respondent was present at

Pregent’s apartment when Epps was killed (J.A. 62, 64-65,

181, 188-189, 192-194). In closing argument, defense

counsel also said that none of the five prosecution witnesses

who were present that night, including Fleetwood, “testified

to any fact suggesting anything other than that [respondent]

was in that apartment” (J.A. 189).

2. On appeal to the Delaware Supreme Court, respondent

argued that the trial court had erroneously denied him the

right to establish Fleetwood’s bias by limiting his cross-

One of the arresting officers testified that he saw no bruises on re-

spondent (X Tr. 95).

12 For example, counsel told the jury in closing argument (XI Tr. 32, 42;

J.A. 181, 188-189):

The defense does not dispute that [respondent] was in Daniel

Pregent’s apartment and [respondent] was there when the murder oc-

curred. There is no dispute about that.

Fleetwood's testimony] proves what [respondent] has never denied. It

proves what [respondent] has already testified to in this trial. It proves

that [respondent] was at Danny Pregent’s apartment before Doris

Epps was murdered.

examination. Relying in part upon Davis v. Alaska, 415 U.S.

308 (1974), the court reversed respondent’s convictions on

the ground that the trial judge’s ruling barring any cross-

examination of Fleetwood regarding the dismissal of the

misdemeanor charge violated the Confrontation Clause by

keeping from the jury facts regarding bias that were central

to assessing Fleetwood’s credibility. Pet. App. A5-A6.'* In so

doing, it rejected the State’s argument that, since “Fleet-

wood’s basic testimony was cumulative in nature and unim-

portant,” the Confrontation Clause error was harmless

beyond a reasonable doubt (Pet. App. A6). The court held

that “a blanket prohibition against exploring potential bias

through cross-examination” is “a per se error,” that “the ac-

tual prejudicial impact of such an error is not examined,” and

that “reversal is mandated” (id. at A7).

SUMMARY OF ARGUMENT

It is a basic principle of modern American law—applicable

equally to criminal as to civil cases, and to both constitutional

and non-constitutional claims—that an appellant is not en-

titled to a reversal of the trial court’s judgment unless he can

show not only the existence of an error, but also some

likelihood that the error was prejudicial to him (i. e., that it

was not “harmless”). It is therefore customary for appellate

courts to reverse only upon finding a sufficient probability

that the result would have been different but for the error. In

this case, however, the Delaware Supreme Court held that

this principle may not be applied where there has been an er-

roneous restriction of the defendant’s right to show that a

prosecution witness is biased, on the ground that the Sixth

Amendment prohibits affirmance of a conviction in such cir-

cumstances even if it can be demonstrated that the restric-

tion on cross-examination could not have affected the out-

come of the trial.

1 The court left open the question whether denying respondent an oppor-

tunity to cross-examine Fleetwood about the unrelated homicide investiga-

tion was also erroneous. Pet. App. A6 n.3.

It is of course true that certain errors will always require

reversal without separately considering whether a likely ef-

fect on the verdict has been demonstrated. For example, a

trial before a biased tribunal, the denial of counsel, or the

denial of a jury trial can never be “harmless,” despite in-

disputable proof of the defendant’s guilt, because the pro-

ceeding at which he was convicted lacked the fundamental at-

tributes of a trial as we know it. Or, to consider a somewhat

different class of cases, harmless error analysis would be

pointless where the standard for determining whether there

was any error at all already turns in part on a finding of pre-

judice, as in Brady claims. Finally, there may be instance in

which prejudice is presumed (and harmiess error inquiry thus

foreclosed) because of the violation of an important right

designed to protect the defendant against an unjust convic-

tion in circumstances in which is it impossible to determine

the actual or probable effect of the error.

Denying a defendant the opportunity to impeach an

adverse witness does not fit into any of those limited

categories of errors requiring automatic reversal. Confronta-

tion by means of impeachment is valued not as an end in

itself, but as a means to the end of enhancing the reliability of

the verdict. It is thus entirely appropriate, upon finding an

improper restriction on impeachment of an adverse witness,

to determine whether successful impeachment of the

witness’s credibility might have affected the verdict. That in-

quiry is not inherently impracticable. Whether an error of

this type is prejudicial hinges upon a variety of factors—such

as the nature of the testimony that the witness has given, the

nature and strength of the alleged bias, and the defense of-

fered at trial—which will necessarily vary from case to case.

Moreover, because impeachment is simply one of several

means to an end, denying a defendant the opportunity to im-

peach a witness does not invariably deprive the accused of

the benefits of confrontation. Finally, as was the case here,

the testimony given by a particular witness may be so in-

significant or may be so indisputably accurate in light of

other, corroborating evidence that the denial of an opportuni-

ty to impeach that witness cannot reasonably be said to have

deprived the defendant of a fair opportunity to establish his

innocence.

—— —

ARGUMENT

THE ERRONEOUS RESTRICTION OF A DEFENDANT'S

OPPORTUNITY TO DEMONSTRATE BIAS ON THE PART

OF A PROSECUTION WITNESS DOES NOT REQUIRE

AUTOMATIC REVERSAL WITHOUT REGARD TO

PREJUDICE

We have no quarrel with the ruling by the court below that,

once the State chose to call Robert Fleetwood as a witness,

respondent should have been allowed to impeach him by

bringing out the fact that Fleetwood’s cooperation may have

been induced by the dismissal of his pending misdemeanor

charge. Nevertheless, we think it indisputable that this error

could not possibly have affected the jury’s verdict in light of

the marginal significance of the facts to which Fleetwood

testified and their corroboration in all material respects by

the testimony of other witnesses, including the state’s foren-

sic expert, by physical evidence, and by respondent’s own

statements to the police and his trial testimony.'* See pages

4-8, supra. The Delaware Supreme Court did not suggest

otherwise, but instead declined to consider whether the error

may have been prejudicial. Relying upon Davis v. Alaska, 415

U.S. 308 (1974), it concluded that the Constitution requires

automatic reversal whenever a defendant is improperly

precluded from bringing out the possible bias of a prosecution

witness. This holding, which conflicts with the majority of

federal and state court rulings on the subject, is wrong.'®

'4 Given respondent’s admissions to the police and defense counsel's

statements at trial (see pages 4-5, 8, supra ), respondent cannot claim that

his trial testimony was in any way the “fruit” of the restriction on cross-

examination. Cf. Harrison v. United States, 392 U.S. 219 (1968).

Since Davis was decided, most federal and state courts have held that

an erroneous restriction on a defendant’s opportunity to cross-examine an

adverse witness can be harmless. See, e.g., United States v. Garza, 754

F.2d 1202, 1206-1208 (5th Cir. 1985); United States v. Smith, 748 F.2d

1091, 1096 (6th Cir. 1984); Carrillo v. Perkins, 723 F.2d 1165, 1170-1173

(5th Cir. 1984); United States v. Whitt,718 F.2d 1494, 1501-1502 (10th Cir.

1983); United States ex rel. Scarpelli v. George, 687 F.2d 1012, 1013-1014

(7th Cir. 1982), cert. denied, 459 U.S. 1171 (1983); Kines v. Butterworth,

A. It is well settled that the Constitution does not guar-

antee a defendant a perfect trial and that not every error that

occurs prior to or at trial requires that the defendant’s convic-

tion be set aside as the remedy. That uncontroversial princi-

ple recognizes that “[aJbsent [an actual or threatened

adverse] impact on the criminal proceeding, * * there is no

basis for imposing a remedy in that proceeding” (United

States v. Morrison, 449 U.S. 361, 365 (1981)) as well as that

“* remedies should be tailored to the injury suffered... and

should not unnecessarily infringe on competing interests

(Rushen v. Spain, 464 U.S. 114, 118 (1983) (quoting Mor-

rison, 449 U.S. at 364)). The harmless error doctrine, as it

has come to be known, is merely one application of this princi-

ple.

In Chapman v. California, 386 U.S. 18 (1967), the Court re-

jected the argument that all federal constitutional errors,

regardless of their nature or severity or the strength of the

government’s proof of the defendant’s guilt, must be deemed

669 F.2d 6, 11-13 (Ist Cir. 1981), cert. denied, 456 U.S. 980 (1982); United

States v. Gambler, 662 F. 2d 834, 840-842 (D.C. Cir. 1981); United States v.

Duhart, 511 F.2d 7, 9-10 (6th Cir.), cert. dismissed, 421 U.S. 1006 (1975);

Snyder v. Coiner, 510 F.2d 224, 227-229 (4th Cir. 1975); Ransey v. State,

680 P.2d 596, 597-598 (Nev. 1984); State v. Patterson, 656 P.2d 438, 439

(Utah 1982); State v. Pierce, 64 Ohio St. 2d 281, 414 N.E.2d 1038, 1043-1044

(1980); cf. Commonwealth v. Wilson, 381 Mass. 90, 407 N.E.2d 1229, 1247

(1980). Contra, State v. Parillo, 480 A.2d 1349, 1357-1358 (R. I. 1984). The

Ninth Circuit is in disarray on this issue. Compare United States v.

Uramoto, 638 F.2d 84, 87 (9th Cir. 1980) (stating that such errors cannot be

harmless; witness in that case was crucial, however), with United States v.

Price, 577 F.2d 1356, 1362-1364 (9th Cir. 1978), cert. denied, 439 U.S. 1068

(1979) (such errors can be harmless); Patterson v. McCarthy, 581 F. 2d 220,

221-222 (9th Cir. 1978) (finding that error was not harmless in that case).

See also United States v. Jackson, 756 F.2d 703, 706 (9th Cir. 1985) (per se

rule of reversal stated in Uramoto may be limited to denial of cross

examination that is prejudicial); United States v. Williams, 668 F.2d 1064,

1070 & n.14 (9th Cir. 1981) (noting “disharmony in this circuit surrounding

that issue“, reversing on ground that restriction was prejudicial); Chipman

v. Mercer, 628 F. 2d 528, 533 (9th Cir. 1980) (erroneous restriction on cross-

examination cannot be harmless because defendant must show that the

verdict was adversely affected by the restriction to establish a Confronta-

tion Clause violation).

inherently prejudicial, requiring reversal of a judgment of

conviction. The Court reasoned that in the context of a par-

ticular case a given error may have had little, if any,

likelihood of skewing the factfinding process at trial and that

where a reviewing court may confidently say that no such ef-

fect occurred, the reversal of a conviction provides an un-

justified windfall for the defendant. 386 U.S. at 21-24; see

United States v. Hasting, 461 U.S. 499, 508-509 (1983).

Since Chapman, the Court has repeatedly reaffirmed the

principle that an otherwise valid conviction should not be set

aside if the constitutional error that occurred before or dur-

ing trial was harmless.'? Indeed, in Hasting the Court made

clear that “it is the duty of a reviewing court to consider the

trial record as a whole and to ignore errors that are

harmless.” 461 U.S. at 509 (emphasis added); see also 28

U.S.C. 2111; Fed. R. Crim. P. 52(a).

The harmless error doctrine furthers several fundamental

interests in the administration of criminal justice. It gives ef-

fect to the principle that the essential purpose of a criminal

trial is to decide the factual question of the defendant’s guilt

or innocence (United States v. Nobles, 422 U.S. 225, 230

(1975)), rather than merely to deliver a preliminary answer to

‘6 As the Court explained in Hasting, the harmless error doctrine

recognizes that, “given the myriad safeguards provided to assure a fair

trial, and taking into account the reality of the human fallibility of the par-

ticipants, there can be no such thing as an error-free, perfect trial, and that

the Constitution does not guarantee such a trial.” 461 U.S. at 508-509.

See, e.g., Rushen v. Spain, supra (right to be present at trial); United

States v. Hasting, supra (improper comment on defendant’s silence at trial,

in violation of Self-Incrimination Clause); Hopper v. Evans, 456 U.S. 605,

613-614 (1982) (statute improperly forbidding court from giving a jury in-

struction on a lesser included offense in a capital case, in violation of Due

Process Clause); Moore v. Illinois, 434 U.S. 220, 232 (1977) (admission of

identification in violation of Sixth Amendment Counsel Clause); Brown v.

United States, 411 U.S. 223, 231-232 (1973) (admission of out-of-court

statement in violation of Sixth Amendment Confrontation Clause); Milton

v. Wainwright, 407 U.S. 371 (1972) (admission of confession in violation of

Sixth Amendment Counsel Clause); Chambers v. Maroney, 399 U.S. 42,

52-53 (1970) (admission of evidence obtained in violation of Fourth Amend-

ment); Coleman v. Alabama, 399 U.S. 1 (1970) (denial of right to counsel at

a preliminary hearing in violation of Sixth Amendment Counsel Clause).

allegedly more important abstract legal questions that will

ultimately be resolved on appeal (cf. Wainwright v. Sykes,

433 U.S. 72, 90 (1977)). It also ensures that the criminal pro-

cess is not treated as a “game” by removing incentives for

defense counsel to attempt to sow technical errors at trial for

the sole purpose of obtaining a reversal on appeal. See Kot-

teakos v. United States, 328 U.S. 750, 759 (1946). It promotes

public respect for the criminal process by focusing on the

underlying fairness of the trial, rather than on immaterial

technicalities. See Hasting, 461 U.S. at 509; Kotteakos, 328

U.S. at 759-760; R. Traynor, The Riddle of iJarmless Error

14, 50 (1970). The doctrine also contributes to the finality

that is essential if punishment is to serve its intended pur-

pose. Cf. Sanders v. United States, 373 U.S. 1, 24-25 (1963)

(Harlan, J., dissenting). Finally, it conserves scarce trial

resources by eliminating burdensome retrials where correc-

tion of the error is not likely to improve the reliability of the

verdict, but may instead inject new errors. See Hasting, 461

U.S. at 509. In essence, by eliminating needless retrials

where it can be confidently said that no materially prejudicial

error occurred at trial, the harmless error doctrine allows an

appellate court “to keep the balance true” (Snyder v.

Massachusetts, 291 U.S. 97, 122 (1934)) between the govern-

ment’s interest in convicting the guilty and a defendant's in-

terest in avoiding an unjust conviction. See Hasting, 461 U.S.

at 509; cf. Strickland v. Washington, No. 82-1554 (May 14,

1984), slip op. 24.

At the same time, the Court has recognized that some con-

stitutional rights are so essential to a fair trial that their

violation warrants reversal in every case. Chapman itself

gave three examples of such infractions. 386 U.S. at 23 n.8.

Two of them—compelling a defendant to stand trial before a

trier of fact with a financial interest in the outcome (see

Tumey v. Ohio, 273 U.S. 510 (1927)) and denying a defendant

the assistance of counsel at trial (see Gideon v. Wainwright,

372 U.S. 335 (1963))—strike at the heart of the modern con-

cept of a criminal trial. Their deprivation is properly viewed

as functionally equivalent to the denial of any trial at all. Cf.

Drope v. Missouri, 420 U.S. 162, 171 (1975) (forcing a

mentally-incompetent defendant to stand trial); Moore v.

Dempsey, 261 U.S. 86, 91 (1923) (mob dominated trial). Is The

third error listed in Chapman— introducing a coerced confes-

sion (see Payne v. Arkansas, 356 U.S. 560 (1958))—is likely

to call into question the reliability of the verdict in a manner

that is is not susceptible to effective appellate review. An

error like this necessarily undermines an appellate court’s

confidence in the accuracy of the verdict. Cf. Strickland, slip

op. 24.

The final category of errors that, once found to have oc-

curred, will not be separately analyzed for harmlessness is

defined in an entirely different manner. This class consists of

1 Analogous errors or deprivations that would appear to require rever-

sal without regard to their specific impact upon the defendant's trial in-

clude denying the defendant a jury trial, trying a defendant in absentia, or

refusing to permit the defendant to testify. Whether a jury charge that

shifts the burden of proof on, or conclusively presumes, the issue of the

defendant's intent fits into this category hinges upon whether such a

charge amounts to a directed verdict of guilty. Compare Connecticut v.

Johnson, 460 U.S. 73, 84-88 (1982) (plurality opinion), with id. at 94-102

(Powell, J., dissenting). The right to represent oneself at trial (see Faretta

v. California, 422 U.S. 806 (1975)) may also fit into this category, since it is

an integral component of the defendant’s right to present a defense at trial

lid. at 818-821), or it may be in a class by itself, because the right exists, in

part at least, “to affirm the dignity and autonomy of the accused”

(McKaskle v. Wiggins, No. 82-1135 (Jan. 23, 1984), slip op. 7; id. at 9; id. at

11 n.6 (White, J., dissenting)).

As Justice Harlan put it in Chapman, “particular types of errors have

an effect which is so devastating or inherently indeterminate that as a mat-

ter of law they cannot reasonably be found harmless.” 386 U.S. at 52 n.7

(dissenting opinion). However, given the Court’s subsequent decisions in

Harrington v. California, 395 U.S. 250 (1969), and Milton v. Wainwright,

supra, it is presently unclear whether the admission of a coerced confession

still fits into the class of errors that cannot be harmless.

Justice Harlan also suggested that “certain types of official misbehavior”

should warrant reversal in every case to indicate society's disapproval of

“such intentional misconduct.” 386 U.S. at 52 n.7 (dissenting opinion).

However, the Court rejected that approach to the harmless error doctrine

in Hasting. See 461 U.S. at 507 (“the interests preserved by the doctrine of

harmless error cannot be so lightly and casually ignored in order to chastise

what the court viewed as prosecutorial overreaching”); see also Mabry v.

Johnson, No. 83-328 (June 11, 1984), slip op. 6; Smith v. Phillips, 455 U.S.

209, 219 (1982).

those matters as to which prejudice is considered in the deter-

mination whether there has been an error. See, e.g., United

States v. Bagley, No. 84-48 (July 2, 1985), slip op. 10-15

(Brady claims); Strickland, slip op. 21-26 (ineffective

assistance of counsel); United States v. MacDonald, 435 U.S.

850, 858 (1978) (speedy trial claims); cf. United States v.

Young, No. 83-469 (Feb. 20, 1985), slip op. 15 n.14 (plain er-

ror under Fed. R. Crim. P. 52(b)). The reason that such claims

cannot be harmless, of course, is that it is pointless to under-

take a separate inquiry into whether an error had an effect

upon the outcome of the trial if the defendant has already

established that the error was prejudicial in demonstrating

its existence.

B. The question in this case is how the error at

respondent’s trial should be classified. In ruling that this er-

ror could not be harmless, the Delaware Supreme Court did

not suggest that it could be classified among those constitu-

tional violations that so far deny a defendant the essentials of

a trial as to preclude a valid conviction without regard to the

reliability of the verdict. That argument also could not be

seriously entertained; perhaps a blanket refusal to permit

cross-examination of all prosecution witnesses could rational-

ly be treated like a deprivation of counsel or trial before a

biased tribunal, but an erroneous restriction upon defense

cross-examination of a particular witness simply cannot be

equated with denial of a meaningful trial. Nor can the right to

impeach a prosecution witness be compared with something

like the right to represent oneself at trial, which is a right

wholly unrelated to the reliability of the verdict. The purpose

of the Confrontation Clause is to enhance the reliability of the

factfinding process at trial, not to recognize the dignity and

20 While a showing of prejudice is not an absolute prerequisite to

establishing a speedy trial violation (see Barker v. Wingo, 407 U.S. 514,

530-533 (1972)), because consideration of prejudice nonetheless plays a cen-

tral role in evaluating the claim, this too is a category of cases in which it is

fair to say that the harmless error principle has in effect been folded into

the decision whether there was an error.

autonomy of the accused. See, e.g., Tennessee v. Street, No.

83-2143 (May 13, 1985), slip op. 6; Ohio v. Roberts, 448 U.S.

56, 63-64 (1980).

In determining that the Confrontation Clause was violated,

the Delaware Supreme Court did not require respordent to

demonstrate that the restriction actually and materially prej-

udiced his defense.“ This case therefore also does not fit into

the category in which any error that occurs cannot be

harmless because prejudice has already been found in deter-

mining that an error existed.

Because the purpose of the Sixth Amendment is to ensure

that a defendant receives a fair trial, there is generally no

reason to award a defendant relief based upon a Sixth

Amendment claim absent a showing of a likely adverse effect

upon the reliability of the trial process. See United States v.

Cronic, No. 82-660 (May 14, 1984), slip op. 9-10; Morrison,

449 U.S. at 364-365. Ordinarily, this means that only those

Although the court stated that i the question of bias was an important

issue before the [trial] court and the excluded evidence was central to that

issue” (Pet. App. A5-A6 (footnote omitted)), the court did not suggest that

the error was likely to have adversely affected the verdict, which is an

essential aspect of either a determination of prejudice or harmless error

analysis. Compare, e.g., Strickland, slip op. 29-30, with Hasting, 461 U.S.

at 512.

22 In several contexts, the Court has ruled that a showing of prejudice is

necessary before there is a Sixth Amendment violation or before a defen-

dant can obtain relief. See, ¢.g., Strickland, slip op. 21 (ineffective

assistance of counsel); United States v. Valenzuela-Bernal, 458 U.S. 858,

872-874 (1982) (claimed violation of Compulsory Process Clause based upon

deportation of potential witness); United States v. MacDonald, 435 U.S.

850, 858-859 (1978) (prejudice important in showing a violation of Speedy

Trial Clause); Weatherford v. Bursey, 429 U.S. 545 (1977) (prejudice

necessary to establish a violation of Counsel Clause by using co-defendant

as government informant), see also Morrison, 449 U.S. at 364-365 (general

rule is that an error does not werrant setting aside a conviction absent a

demonstrable effect upon the outcome of the trial); see generally Cronic,

slip op. $-10 (“we begin by recognizing that the right to the effective

assistance of counsel is recognized not for its own sake, but because of the

effect it has on the ability of the accused to receive a fair trial. Absent some

effect of the challenged conduct on the reliability of the trial process, the

Sixth Amendment guarantee is generally not implicated”). The same princi-

ple also applies in a variety of other contexts. See, e.g, United States v.

Lovasco, 431 U.S. 783 (1977) (proof of actual prejudice required to establish

a due process violation arising from pre-indictment delay).

errors that may have produced an inaccurate guilty verdict in

the case at hd require that a defendant receive a new trial.

See, e. g., Strickland, slip op. 21-26.28 The decisions of this

Court leave open the possibility that a showing of actual pre-

judice from an erroneous restriction on cross-examination is

intrinsic to finding a Confrontation Clause violation in the

first place.? Indeed, a substantial argument, supported by

the mode of analysis employed in Davis v. Alaska, can be

presented in favor of that rule.

23 That is not always the case, however; denial of a jury trial would not be

harmless despite irrefutable proof of a defendant’s guilt. The purposes of

each particular Sixth Amendment guarantee must be examined to make

this determination. The severity of the deprivation may also be pertinent.

A complete denial of counsel requires automatic reversal without any show-

ing of particularized prejudice (Gideon v. Wainwright, 372 U.S. 335

(1963)), whereas claims that particular acts or omissions of counsel de-

prived the defendant of his Sixth Amendment rights are evaluated with

specific reference to potential prejudice (Strickland, slip op. 21-23; Cronic,

slip op. 11 n.26).

4 The Court’s decisions involving a direct restriction on a defendant's

cross-examination have involved situations in which either the witness

gave particularly incriminating testimony or the defendant was denied the

opportunity to elicit especially favorable exculpatory evidence. See, e. g.,

Davis v. Alaska, 415 U.S. at 310-314, 317-318; Chambers v. Mississippi,

410 U.S. 284, 291-293 (1973); Smith v. Illinois, 390 U.S. 129, 130 (1968);

Brookhart v. Janis, 384 U.S. 1, 2-4 (1966). Similarly, the Court’s decisions

regarding the admission of statements, such as a confession or prior

testimony, made by a declarant not subject to cross-examination at trial

have also involved highly damaging evidence. See, e.g., Barber v. Page, 390

U.S. 719, 720 (1968); Brookhart v. Janis, 384 U.S. at 2, 4; Douglus v.

Alabama, 380 U.S. 415, 416-417, 419 (1965); Pointer v. Texas, 380 U.S.

400, 402 (1965). Some older cases not involving the Confrontation Clause

either state or suggest that the denial of an opportunity for effective cross-

examination will itself be treated as prejudicial. See, e.g., Alford v. United

States, 282 U.S. 687, 692 (1931); Tla-Koo-Yel-Lee v. United States, 167 U.S.

274, 277-278 (1897). But, in these cases as well, the witness involved gave

damaging testimony against the accused, and the defense had a strong

ree on for pursing a particular line of inquiry. In any event, even if these

decisions are read to suggest that a defendant need not show that the

restriction might have affected the verdict to establish a confrontation

violation, that would not foreclose application of the harmless error doc-

trine .

28 A parallel could be drawn to the different rules governing cases like

Gideon, Powell v. Alabama, 287 U.S. 45 (1932), and Strickland. There, the

Respondent’s conviction was reversed without regard to

the existenre of case-specific prejudice arising from the

restriction upon his cross-examination of Fleetwood. There is

accordingly no need to decide in this case whether, if pre-

judice must in fact be shown in order to justify reversal, that

is because prejudice is an element of the finding of error itself

or because it is the criterion for deciding whether the error

requires reversal. Rather, the question here is whether a

non-prejudicial restriction on cross-examination compels

reversal. The affirmative answer of the Delaware Supreme

Court would be correct only if this type of error is so in-

herently prejudicial and so indeterminate that it necessarily

undermines an appellate court’s confidence in the reliability

of the verdict and prevents the court from effectively deter-

mining whether the error had an adverse effect on the trial.

For the following reasons, we believe that the denial of an op-

portunity to impeach a prosecution witness regarding bias

does not fit into this category.

1. The Delaware Supreme Court relied in part on Davis v.

Alaska, supra, for its holding that this error was prejudicial

per se. Pet. App. A6. Properly read, however, Davis does not

stand for the proposition that an erroneous restriction on

question whether prejudice would be presumed hinged upon the degree of

the interference with the right to counsel; here, the question would turn

upon the degree of interference with a defendant's opportunity to confront

adverse witnesses. The complete denial of any opportunity to cross-

examine any adverse witness would be conclusively presumed to result in

prejudice. See Brookhart, 384 U.S. at 3. Prejudice would be presumed

where a defendant was denied the opportunity, in truth or effect, to cross-

examine a crucial adverse witness. See Davis v. Alaska, supra; Smith v. II-

linois, supra; Alford v. United States, supra. Finally, the denial of any op-

portunity to cross-examine a minor witness (e. g., one who gave cumulative

or undisputed testimony) or a particular restriction upon cross-examination

of a more important witness would call for a case-specific inquiry into

potential prejudice. This case would appear to fit into the third category.

This point could be of significance if the outcome of the case depended

upon an allocation of the burden of proof, since the prosecution would likely

be allocated the burden of showing harmless error. Here, the State’s effort

to assume that burden was rejected by the court below on the ground that a

showing of harmlessness would not avoid reversal.

defense cross-examination or impeachment invariably re-

quires reversal and does not preclude application of the

harmless error doctrine in this case.

Davis is best understood in light of its facts. Davis was

charged with burglary and grand larceny for the theft of a

safe from a bar. The police found the safe that Davis had

allegedly stolen abandoned near Richard Green’s home, and

Green, the only eyewitness, testified that he had seen Davis

near this site on the day of the crime. The defense was for-

bidden from eliciting on cross-examination of Green that he

was on juvenile probation for burglary both at the time of the

offense charged against Davis and at the time of the trial.

The defense sought to reveal this fact to impeach Green for

bias by showing that he may have slanted his testimony in the

State’s favor to shift suspicion away from himself or to avoid

revocation of his probation for not “cooperating” with the

prosecutor. 415 U.S. at 310-311. The trial judge, relying upon

state rules forbidding the disclosure of juvenile records in

judicial proceedings, prohibited questioning that would dis-

close Green’s juvenile record. Jd. at 311.

This Court reversed Davis’s conviction. It explained that

the opportunity to impeach a prosecution witness by showing

that he is biased against the defendant is an integral compo-

nent of confrontation. 415 U.S. at 315-317. Emphasizing the

importance of Green’s testimony to the prosecution’s case

and relying upon Alford v. United States, 282 U.S. 687

(1931), which had upheld a defendant’s right to disclose that a

witness was being detained in custody at the time of trial and

thus may have been eager to “cooperate” with the govern-

ment in order to have his own charges dropped or reduced,

the Court held that denying Davis any opportunity to reveal

that Green was on probation required that Davis’s conviction

be set aside. 415 U.S. at 317-318, 320-321. As the Court con-

cluded, Davis] was thus denied the right of effective cross-

examination which ‘would be constitutional error of the first

magnitude and no amount of showing of want of prejudice

would cure it.“ 415 U.S. at 318 (quoting Smith v. Illinois,

390 U.S. 129, 131 (1968), quoting in turn Broo”hart v. Janis,

In so ruling, however, Davis did not except from the opera-

tion of the harmless error rule all cases in which a defendant

is denied an opportunity to impeach a witness for bias. In the

first place, Davis did not cite, much less distinguish, Chap-

man or any of the Court’s other harmless error decisions. Nor

did Davis explain why an erroneous limitation upon the ex-

tent of defense cross-examination should be treated dif-

ferently from a complete denial of any opportunity to cross-

examine an adverse witness, which the Court had previously

held could be harmless in an appropriate case. See pages

22-24, infra. In short, Davis can hardly be read to have re-

jected the application of a well established doctrine that the

Court never discussed.

This is esy.2cially so since the dictum in Davis came only

after the Court had painstakingly demonstrated how Davis

had in fact been prejudiced. The Court repeatedly stressed

the pivotal nature of Green’s testimony and the fact that any

substantial blow to his credibility would have been fatal to the

state’s case. Not only was “Green * * * a crucial witness for

the prosecution” (415 U.S. at 310), but also “Green’s testi-

mony * provided ‘a crucial link in the proof. . . of [Davis']

act’” (id. at 317 (citation omitted); see id. at 319). Moreover,

given the fact that the proof of Davis’s guilt otherwise rested

entirely upon circumstantial evidence (id. at 310), “(t]he ac-

curacy and truthfulness of Green’s testimony were key

elements in the State’s case against [Davis (id. at 317). For

that reason, the Court observed that “{sJerious damage to the

strength of the State’s case would have been a real possibility

27 Neither of the cases cited by Davis ruled that an erroneous restriction

on defense cross-examination cannot be harmless. In Brookhart, the defen-

dant was denied the opportunity to cross-examine any of the state’s

witnesses, and the state offered a confession by an absent witness. The

only question was whether the defendant had waived his confrontation

right. 384 U.S. at 4-8. In Smith, the defendant was denied the right to ask

the crucial witness for the state his name and address; that witness's testi-

mony was pivotal because the only issue at trial was the relative credibility

of the witness and the defendant. 390 U.S. at 130. In both cases, the error

was presumed to be prejudicial; in neither case did the Court discuss

whether erroneous restrictions on cross-examination could be harmless in

other contexts.

had petitioner been allowed to [impeach Green].” Jd. at 319.

Finally, the Court observed that there was a strong possibili-

ty that Green had chosen to rely upon the trial court’s ruling

that his juvenile records could not be disclosed as a means of

giving testimony that “can be regarded as highly suspect at

the very least” (id. at 314; see id. at 313-314).?8 Accordingly,

even read with liberality, Davis simply holds that the Con-

frontation Clause entitles a defendant to disclose a known

bias on the part of an adverse witness and that denying Davis

any such opportunity was prejudicial to his defense.

2. The Court’s decisions clearly support the proposition

that a Confrontation Clause violation like the one that oc-

curred here can be harmless in an appropriate case. Indeed,

that principle was first articulated more than 80 years ago in

Motes v. United States, 178 U.S. 458 (1900). There, the

government introduced at trial against all of the co-

defendants a transcript of the testimony given at a pre-

liminary hearing by a witness whom the government had

allowed to escape from custody prior to trial. The admission

of this statement, the Court held, denied each defendant the

opportunity to cross-examine the declarant, in violation of

the Confrontation Clause, requiring reversal of the convic-

tions of all but one co-defendant. 178 U.S. at 471-474. Rever-

sal of that defendant’s conviction was unwarranted, however,

because he had testified at trial that he was solely responsible

for the crime. Id. at 474-475. Given his sworn admission of his

guilt, the Court held that ſiſt would be trifling with the ad-

ministration of the criminal law to award him a new trial” (id.

at 476).

28 During cross-examination of Green, the defense elicited the fact that

Green had been questioned by the police regarding the burglary of the bar.

415 U.S. at 312-313. However, Green denied that he had ever before been

subject to a similar interrogation. Jd. at 313. The trial court cut off any fur-

ther questioning along this line on the basis of its pretrial ruling regarding

the admissibility of Green’s juvenile records. Ibid. This Court noted that,

given the likelihood that Green had been questioned in some manner in con-

nection with his arrest for the burglaries on which Green had been ad-

judged a juvenile delinquent, “it is doubtful whether the bold ‘No’ answer

would have been given by Green absent a belief that he was shielded from

traditional cross-examination” (id. at 314).

More recently, the Court has reaffirmed that principle in a

series of cases holding that the admission of a confession

made by a nontestifying co-defendant, in violation of Bruton

v. United States, 391 U.S. 123 (1968), can be harmless.

Bruton held that the receipt in evidence at a joint trial of a

confession made by a nontestifying co-defendant that incri-

minated Bruton but was inadmissible as to him deprived

Bruton of the right to cross-examine an adverse witness.

However, despite the fact that admission of such potentially

unreliable evidence could have a “devastating” effect (391

U.S. at 136), constitutes a “ ‘serious flaw{ ] in the fact-finding

process at trial’ (Roberts v. Russell, 392 U.S. 293, 294 (1968)

(citation omitted)), and poses “a serious risk that the issue of

guilt or innocence may not have been reliably determined”

(id. at 295), the Court has made clear that the admission of a

co-defendant’s confession in violation of Bruton does not in-

variably call for reversal. For instance, in Harrington v.

California, 395 U.S. 250 (1969), the Court found harmless

the receipt of two confessions made by nontestifying co-

defendants because the proof of the defendant’s guilt was “so

overwhelming” that the error was necessarily harmless

unless every constitutional error requires reversal, a proposi-

tion that the Court had squarely rejected in Chapman. See

395 U.S. at 254. Schneble v. Florida, 405 U.S. 427 (1972), and

Brown v. United States, 411 U.S. 223 (1973), expressly reaf-

firmed the ruling in Harrington. See also Parker v. Ran-

dolph, 442 U.S. 62, 77-81 (1979) (opinion of Blackmun, J.);

Dutton v. Evans, 400 U.S. 74, 91-93 (1970) (Blackmun, J.,

concurring); cf. Rushen v. Spain, 464 U.S. at 117-118 & n.2

(right to presence at trial). As a plurality of the Court sum-

marized in Parker, “[iJn-some cases, the properly admitted

evidence of guilt is so overwhelming, and the prejudicial ef-

fect of the codefendant’s admission so insignificant by com-

parison, that it is clear beyond a reasonable doubt that in-

troduction of the admission at trial was harmless error.” 442

U.S. at 70-71 (footnote omitted). Motes and Harrington thus

make clear that denial of the opportunity to cross-examine an

adverse witness does not fit within the limited category of

constitutional errors that must be deemed prejudicial in

every case.

3. There is a sound basis for this result. Whether denying a

defendant the opportunity to impeach an adverse witness will

affect the reliability of the fact-finding process at trial is

dependent upon a host of factors, such as the nature of the

testimony that the witness has given, the nature and

strength of the basis for challenging his credibility, the extent

of cross-examination otherwise afforded the defendant, the

presence or absence of corroboration provided by the testi-

mony of other witnesses or by physical or documentary evi-

dence, and the defense offered at trial.“ Showing that a

witness is under indictment for an unrelated crime or is per-

sonally related to the victim may be invaluable where the case

is simply a “swearing match” between the witness and the de-

fendant; it will be of little or no benefit where the govern-

ment’s proof rests largely upon documentary or physical evi-

dence or where the defense is insanity. Impeaching a

witness’s credibility may be devastating to the state’s case

Other decisions make the same point in a different but analogous con-

text. It is firmly settled that the deliberate use of perjured testimony - a

more egregious impropriety than anything that occurred here - does not re-

quire that a conviction be set aside unless “there is al] reasonable likelihood

that the false testimony could have affected the judgment of the jury.”

United States v. Agurs, 427 U.S. 97, 103 (1976) (footnote omitted); see

United States v. Bagley, slip op. 10-12, & nn.8-9; Giglio v. United States,

405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 271

(1959)). This standard applies both to the introduction of perjured

testimony and to the knowing failure to correct such testimony when of-

fered by a witness (Giglio v. United States, supra; Napue v. Illinois, supra).

It appears functionally equivalent to the Chapman harmless error stan-

dard. See Bagley, slip op. 10-12 & n.9. If the government’s failure to dis-

close that a witness has committed perjury does not automatically require

reversal, it logically must follow that denying the defense the opportunity

to impeach a witness for bias should not automatically require reversal.

0 See, e.g., United States v. Abel, No. 83-935 (Dec. 10, 1984), slip op. 8-9;

see generally McCormick's Handbook of the Law of Evidence § 40 (E. Cleary

2d ed. 1972) (describing various types of bias).

where that witness’s testimony is the only evidence establish-

ing an essential element of the crime, but discrediting that

witness will have little effect on the jury if his testimony is

cumulative of the testimony given by several other witnesses.

The government will also often have a substantial interest

in keeping secret certain facts that the defense wishes to

elicit on cross-examination, such as the identity of a govern-

ment informant, and it is well-settled that the strength of the

government's countervailing interest must be considered

before disclosure can be ordered.*! The Court has recognized,

however, that there is no reason to set aside a conviction if

disclosure of the sought-after information could not have con-

tributed materially to the verdict.*? Indeed, even where the

government has no such interest in secrecy and simply fails

to reveal exculpatory information requested by the defense,

including material useful to impeach a witness, reversal is not

required unless the sought-after information is likely to have

affected the outcome of the trial.** It necessarily follows from

these cases that it cannot rationally be presumed that the

refusal to allow the defense to impeach an adverse witness

with such information is so prejudicial as to call for reversal

without any consideration of the weight of the state’s proof or

the significance to the case of the witness’: testimony.

To be sure, cross-examination is the primary Confrontation

Clause guarantee (see, e.g, Pointer v. Texas, 380 U.S. 400,

407 (1965)) and functions, in Dean Wigmore’s oft-quoted

phrase, as the “greatest legal engine ever invented for the

discovery of truth” (5 J. Wigmore, Evidence in Trials at Com-

mon Law § 1367, at 32 (1974)). Impeaching a witness for bias

3! See, e.g., Davis v. Alaska, 415 U.S. at 319-321 (juvenile records

privilege); Smith v. Illinois, 390 U.S: at 133-134 (White, J., concurring) (in-

quiries “which tend to endanger the personal safety of the witness” may be

foreclosed); Roviaro v. United States, 353 U.S. 53 (1957) (informant’s iden-

tity); United States v. Harley, 682 F.2d 1018, 1020-1021 (D.C. Cir. 1982)

(surveillance location).

See United States v. Valenzuela-Bernal, 458 U.S. at 867-871; Rugen-

dorf v. United States, 376 U.S. 528, 534-536 (1964); Roviaro v. United

States, 353 U.S. at 64-65.

-. % See United States v. Bagley, slip op. 10, 14-15; see also California v.

Trombetta, No. 83-305 (June 11, 1984), slip op. 9.

is also a powerful means of discrediting his testimony. See

United States v. Abel, No. 83-935 (Dec. 10, 1984), slip op. 6-9;

Davis, 415 U.S. at 316; Alford, 282 U.S. at 692. Nonetheless,

impeachment is simply a means to an end and is not valued

for its own sake.** A defendant who is denied the opportunity

to impeach a prosecution witness still has several other

means at his disposal to convince the jury that the witness

should be disbelieved,*> and the ability to use those alter-

natives before the jury must be given weight under the Con-

frontation Clause.“ The evidence against a defendant in a

Cf. Cronic, slip op. 9-10 (right to counsel). That is clear from the

Court’s rulings that certain types of hearsay statements are so reliable that

they can be admitted at trial despite the fact that the defendant has had no

opportunity to cross-examine the declarant. Ohio v. Roberts, 448 U.S. at

66; see also Dutton v. Evans, 400 U.S. 74, 89 (1970) (plurality opinion); Mat-

tox v. United States, 156 U.S. 237, 243-244 (1895); Fed. R. Evid. 803(1)-(23),

804(b\(1)-(4).

There are five chief methods of attacking a witness’s credibility: (1)

showing a defect in his capacity to observe or remember the subject of his

testimony; (2) demonstrating the witness’s bias against the defendant or in

favor of the government; (3) introducing prior inconsistent statements

made by the witness; (4) showing that the witness’s character is generally

untrustworthy; and (5) proving that the substance of his testimony is false.

See McCormick's Handbook of the Law of Evidence, supra, § 33, at 66.

Denying a defendant the opportunity to impeach a witness for bias still

allows the defendant several other alternatives. For instance, respondent

was able to elicit the fact that Fleetwood was heavily intoxicated that even-

ing, which would have certainly affected Fleetwood’s ability to see respon-

dent in Pregent’s apartment (III Tr. 60).

Confrontation at trial helps to assure the reliability of the factfinding

process in several related ways. By requiring a witness to testify under

oath, it reinforces the seriousness of the proceeding, makes lying more

difficult, given the presence of the defendant, and guards against perjury

through the threat of a subsequent prosecution. By permitting the accused

to cross-examine a witness, it allows the defendant to challenge the

witness's credibility. And by permitting the jury to assess the witness's de-

meanor, it provides the jury with the opportunity to determine whether the

witness is credible. See Ohio v. Roberts, 448 U.S. at 63-64 & n.6; California

v. Green, 399 U.S. 14d, 158 (1970). The trial judge's ruling here, of course,

limited respondent’s opportunity to convince the jury that Fleetwood was

lying. Nonetheless, because Fleetwood was on the stand and was subject to

cross-examination in other respects, the purposes confrontation serves

were not wholly vitiated by the trial court’s ruling.

given case may also be so overwhelming or, as here, the

testimony offered by a particular witness so slight, uncon-

troversial, or amply corroborated that an appellate court can

safely say that the restriction, even if erroneous, has not

denied the defendant a fair opportunity to establish his in-

nocence. Accordingly, there is no basis for concluding that an

erroneous restriction upon defense cross-examination is in-

herently prejudicial.

CONCLUSION

The judgment of the Supreme Court of Delaware should be

reversed.

Respectfully submitted.