Confrontation – Limits on Cross-Examination

by admin on July 14, 2011

State v. Olu A. Rhodes, 2011 WI 73, reversing unpublished COA decision; for Rhodes: John J. Grau; case activity

Although the State’s theory of motive was that Rhodes intentionally shot and killed the victim in retaliation for beating Rhodes’ sister the day before, the trial court reasonably precluded cross-examination of the sister on a prior instance where the victim severely beat her without response from Rhodes.

¶3   We conclude that the circuit court did not violate the confrontation clause of the Sixth Amendment when it exercised its discretion in limiting the cross-examination of Nari Rhodes.  The court reasonably limited the defendant’s cross-examination of his sister about incidents of domestic abuse against her by the victim of the homicide to avoid confusing the issues and misleading the jury.  This limitation did not prevent the defendant from presenting evidence to rebut the State’s theory of the defendant’s motive for the crime, and to make that argument in closing.

¶58  The testimony Rhodes sought to elicit by cross-examining Nari went to rebut motive, which was made a fact of consequence by the State. Therefore, the testimony sought by Rhodes would have been relevant under Wis. Stat. § 904.01.

¶59  Nonetheless, the circuit court permissively exercised its discretion in curtailing a full inquiry into prior incidents between Davis and Nari.  Wis. Stat. § 904.03.

¶66  Both Rhodes and Nari were allowed to present their side of the story.  There is no indication that this story would have been more persuasive if Nari had been allowed to testify that there was no retaliation after the incident when Davis assaulted her and broke her orbital bone.  Rhodes, in fact, testified that he had done no more on any occasion than throw Davis out of the house.  In the end, the jury was required to make a determination of credibility as to the testimony presented.  If the jury did not accept Rhodes’ and Nari’s explanation that her brothers had given up in frustration when she continued to return to her abuser——an argument made by defense counsel in his closing——the additional statement that they did not seek revenge after the orbital bone incident was not likely to persuade them otherwise.

The case turns on the standard of review: trial judges have “wide latitude” to limit cross-examination, with review being deferential, ¶23. The court of appeals certainly recognized the “wide latitude” principle, albeit coming to a different result (opinion, ¶10; the author of which, incidentally, also the author of a leading evidence treatise) – the question being whether review is constrained by other considerations. The court of appeals, for example, stressed the importance of cross-examination to fair trials, id., and as a leading supreme court decision frames it, the appropriate analysis “requires that the state’s interests be closely examined and weighed against the force of the defendant’s right to present the evidence,” State v. Pullizzano, 155 Wis.2d 633, 654-55, 456 N.W.2d 325 (1990). Similarly, “fairness requires that a criminal defendant be afforded a meaningful opportunity to present a complete defense, including the right to call, confront and cross-examine witnesses,” State v. Heft, 185 Wis. 2d 288, 303, 517 N.W.2d 494 (1994), citing Chambers v. Mississippi, 410 U.S. 284, 295 (1973). Some of that sensibility informs the analysis in Rhodes but not, unfortunately, in any formal sense. The court, that is, says almost in passing that the defense was “allowed to present [its] side of the story,” but fails to pay even lip service to the idea that competing interests have been “closely examined”; or that Rhodes was allowed a complete defense.

Often, limits on cross-examination are justified by notions of relevancy, but in this instance the court specifically rules that the off-limits inquiry was relevant, ¶58. (“The testimony Rhodes sought to elicit by cross-examining Nari went to rebut motive, which was made a fact of consequence by the State. Therefore, the testimony sought by Rhodes would have been relevant under Wis. Stat. § 904.01.”) The inquiry was shut down, instead, by § 904.03  notions of confusion or undue prejudice, ¶62. This, then, is what it comes down to: The State was allowed to argue that Rhodes hunted down the victim for participating in a beating of his sister the day before, because it was important that the jury know of this motive as proof of guilt. But, the jury would have been hopelessly misled and confused by evidence that Rhodes hadn’t responded at all to the victim’s previous vicious beating of his sister because … well, you’ll have to ferret that out on your own. Was Rhodes afforded the opportunity to present a “complete defense”? You be the judge.

It is a truism that the standard of review often determines the outcome of an appeal. It is one thing to say that evidentiary rulings are entitled to great deference, quite another that review is independent. Consider: “Whether the circuit court denied Heft the right to present a defense is a question of constitutional fact which we review de novo.” Heft, 185 Wis. 2d at 296. Not only was review here not de novo, as suggested above it seems to scant the importance of cross-examination to the truth-finding function.

Would the present result have been different under a different review-regimen? Impossible to say, of course, but a plausible guess might be hazarded. To the extent the decision represents a retreat from the “close-examination” principle in confrontation review, it will have to be assigned some importance. To the extent the decision represents a mere fact-specific result – recall that the court of appeals came to a different conclusion even while granting a strong measure of deference to the trial court ruling – then the impact will almost necessarily be slight.

{ 1 comment… read it below or add one }

Robert Henak July 15, 2011 at 11:24 am

Interesting question about how this case was decided as a right to confrontation issue. It clearly is not. The defendant was not trying to impeach any witness with his questions. It is a right to present a complete defense case.

The one benefit of the majority’s analysis in cases like this is that it makes federal habeas review easier. The federal courts are required to defer to state court decisions, even erroneous decisions, when the state court decision is not “contrary to or an unreasonable application of” controlling supreme court precedent. Accordingly, when the state court applies the wrong standard, as by leaving the constitutional right to confrontation or to present a defense to the circuit court’s discretion, or applies the controlling standard unreasonably or arbitrarily, as by concluding that evidence rebutting the state’s theory of motive somehow would be confusing to the jury, federal habeas review is de novo. Under those circumstances, the state court’s decision is not entitled to federal deference, substantially increasing the likelihood of an accurate result.

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