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Confrontation – Generally: Limitation on Right to Cross-Examine

State v. Harry L. Seymer, 2005 WI App 93
For Seymer: Andrea T. Cornwall, SPD, Milwaukee Appellate

Issue/Holding: Where the (pro se) sexual assault defendant’s attempt to cross-examine the complainant and principal witness was abruptly terminated by the trial court, purportedly because of the defendant’s “mocking tone” and “derisive behavior”; but where the record did not in any respect support these “subjective impressions,” “the underpinnings of the trial court’s decision to terminate cross-examination [are] unavailing, and Seymer’s opportunity for effective cross-examination [was] violated,” ¶¶8-12.

An unusual, probably fact-specific (i.e., likely non-recurrent) case in which, as the court of appeals says, “it appears that the trial court, for whatever reason, found Seymer exasperating and gave him little leeway during the trial, as we could find almost no other support in the record for the trial court’s termination of Seymer’s cross‑examination,” ¶12. Indeed, the fact-pattern is apparently unusual enough that the court musters no precedential authority in support of its conclusion. That doesn’t mean that this case is itself cutting-edge; it means, rather, that you’ll have to extrapolate a bit to draw any broader meaning. As the court glancingly indicates (¶8), the right to confrontation has to be first “accommodated” before it may properly be limited. However narrowly defined in any given case, confrontation seemingly wasn’t accommodated in any respect before Seymer’s cross was abruptly terminated. In most instances, the inquiry that’s cut off is very specific (such as prior conduct, or witness-bias). What makes this case unusual, then, is the utter failure to accommodate cross-examination. That said, there is at least one implied lesson that shouldn’t be overshadowed by the final result, namely: you can forfeit your right to cross-examine through your behavior. (Also see § 906.11, re: controlling examination of witnesses.) If Seymer had been “mocking” or “derisive” or otherwise contemptuous then the trial judge’s action would have been defensible – or so the court of appeals implies by making a point of scouring the record and ultimately finding no support for the trial judge’s “subjective impressions.” And indeed, the court of appeals’ refusal to take at face value those very impressions represents another unusual aspect of the decision. That is, the court could simply have deferred to the trial court on this matter and said that Seymer had failed to show that the trial judge’s “findings” were clearly erroneous; critically, the court did not do so, but instead engaged in the equivalent of independent review. Hard to say what larger lesson might be derived from that particular exercise of review. Part of the problem is that court’s analysis is so cursory (likely because the record is pretty extreme, and the outcome therefore obvious). Are a “trial judge’s “subjective impressions” something other than findings of historical fact? That’s simply not clear. But at a minimum, this case importantly means that a judge’s ruling isn’t immunized from review simply because it relies on something (such a “mocking tone) which couldn’t possibly be refuted by the cold record. Note that the judge did not make a contemporaneous record of Seymer’s supposed disruptive behavior; instead, the judge very tersely ended cross, and only later, on postconviction ruling, provided after-the-fact embellishment (¶10). Perhaps this made the court of appeals skeptical. But returning to the matter of forfeiture, there is one thing that the court simply fails to go into but that could well be decisive. Forfeiture is in the nature of a sanction and surely there must be some warning before penalty is exacted. See, e.g., Illinois v. Allen, 397 U.S. 337 (1970), at least by way of analogy (“Although mindful that courts must indulge every reasonable presumption against the loss of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 464 , 1023 (1938), we explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom”). In this case, there was insufficient warning to Seymer that his cross crossed a line – something mentioned by the court in passing (¶9), but without elaboration; omitted warning could well be the most significant feature of the case and ought not be overlooked merely because not stressed by the court.

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