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SCOPE OF CROSS-EXAMINATION

FED. R. EVID. Rule 611(b)

Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witnesses [limiting the original draft which allowed cross- examination “…on any matter relevant to any issue in the case,” H.R. Rep. No. 93-650, 93rd, Cong. First Sess. 12.1973].

U.S. v. Walker, 613 F.2d 1349 (5th Cir. 1980);

U.S. v. Wolfson, 573 F.2d 216 (5th Cir. 1978).

See also           U.S. v. Haili, 443 F.2d 1295, 1299 (9th Cir. 1971);

Casey v. U.S., 413 F.2d 1303 (5th Cir. 1969), cert. denied, 397 U.S. 1029 (1970);

U.S. v. Evanchik, 413 F.2d 950 (2d Cir. 1969).

LIMITATION ON CROSS-EXAMINATION HELD VIOLATIVE OF

CONFRONTATION GUARANTEED BY SIXTH AMENDMENT

U.S. v. Lewis, 447 F.2d 134 (2d Cir. 1971);

U.S. v. Wolf v. Wolfson, 437 F.2d 862 (2d Cir. 1970);

U.S. v. Dickens, 417 F.2d 958 (8th Cir. 1969);

U.S. v. Hitchmon, 609 F.2d 1098 (5th Cir. 1979).

BUT: CONFRONTATION CLAUSE VILATION NOW SUBJECT TO HARMLESS ERROR RULE

 In Delaware v. Van Arsdall, 475 U.S. 673, 89 L.Ed.2d 674 (1986), the defendant in a murder trial was barred by the trial judge from cross-examining a witness for the state concerning an agreement between the witness and the state in which the state agreed to drop a public drunkenness charge against the witness in exchange for testimony concerning the murder. The defendant was convicted, but the Delaware Supreme Court reversed the conviction noting that “the bias of a witness is subject to exploration at trial and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’” Davis V. Alaska, 415 U.S. 308, 316 (1974).

The Supreme Court held that “the trial judge’s ruling denied respondent his constitutional right to effective cross-examination …the ruling kept from the jury facts concerning bias that were central to assessing [the witness’] reliability…’a blanket prohibition against exploring potential bias through cross-examination is “a per se error.” 89 L.Ed.2d at 682. The U.S. Supreme Court granted certiorari, and even though it agreed that the respondent had been denied his Sixth Amendment right to confrontation, it vacated the state court decision and remanded for a consideration of whether same was harmless error:

“Accordingly, we hold that the constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman harmless error analysis. The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross- examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. Delaware v. Van Arsdall, 475 U.S. 673, 89 L.Ed.2d 674 (1986).

Cf.                   Harrington, 395 U.S. 250, 254, 23 L. Ed. 2d 284, 89 S.Ct. 1726 (1969);

Schneble v. Florida, 405 U.S. 427, 432, 31 L.Ed.2d 340, 92 S.Ct. 1056 (1972). 89 L.Ed.2d at 686-87.

Texas has also adopted a “harmless error” rule for denial of confrontation rights.

See, e.g.           Young v. State, 891 S.W.2d 945, 948 (Tex. Cr. App. 1994);

Clark v. State, 881 S.W.2d 682, 695-96 (Tex. Cr. App. 1994)(citing Delaware v. Van Arsdall).

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