Trial court may cut off cooperator cross-examination on need for "truthfulness"
Typically, cross-examining a cooperator regarding the impact of the Sentencing Guidelines (e.g., its reduction of, say, a five-year exposure on each mail fraud charge in an Information to nothing more than 12-18 months in the aggregate even before a downward reduction) or the intricacies of a 5K1.1 variance motion can be dicey under the best of circumstances. Intuitive-sounding strategies can backfire (e.g., showing a jury that a cooperator really faces only 12-18 months despite numerous charges may be intended to convey that he got a sweetheart deal, but it also educates a sharp jury to the relatively limited amount of jail time a defendant might receive, making it more palatable to convict him) and Booker/Gall/Kimbrough have diminished the importance of the 5K as the exclusive jail-cell key.
But the Seventh Circuit has made the cross-examination even harder, holding in a recent case that the Sixth Amendment right of confrontation means only that a defense attorney must be permitted to raise the subject of the Guidelines and their impact, but that the attorney need not be given a full opportunity to explore their consequences for truth-telling.
In United States v. Recendiz, 557 F.3d 511 (7th Cir. 2009), the attorney for one of the defendants had crossed a cooperator by having the witness acknowledge familiarity with the Guidelines and with his potential sentencing range, and then obtaining a concession that the witness could get a reduced sentence by testifying truthfully. However, when counsel asked cooperator Herrera who would determine what was truthful and what "truth" really meant, the district court cut off questioning.
On appeal, the Seventh Circuit affirmed. While the Sixth Amendment guarantees an opportunity for effective cross-examination, the opportunity is not unlimited and the trial judge can impose reasonable restrictions. When a core Sixth Amendment value is at stake, like the ability to expose a witness's motivation for testifying, his bias, or motive to lie, the review is de novo. Here, the court explained, defense counsel was allowed to explore the witness's motive for testifying, so the constitutional right of confrontation was deemed not to be implicated.
Then, applying a lesser and non-constitutional abuse of discretion standard, the appeals court held that the trial judge sufficiently allowed defense counsel to explore the Sentencing Guidelines with the cooperator. Questions about the "truth" and who determined its presence or absence were permissibly found by the trial judge to be confusing to the jury and questions of law beyond the witness's knowledge. Although both of these rationales appear specious -- it could be said to be clarifying, not confusing, for the jury to know that the prosecutor is the sole decider of "truth" and the questions are not legal, but seek the witness's factual knowledge of the agreement he/she signed -- the Seventh Circuit found no abuse of discretion in the lower court's denial of the right to cross-examine the witness in these areas.
