The Court of Appeal in Green v. U.S., decided on June 13, 2019, reversed a simple assault conviction due to defendant’s 6th Amendment violation.
Green was arrested after allegations of assault by his girlfriend, there was a contemporaneous 911 tape shortly after the assault reporting such.
Green alleged at trial self-defense and that the complainant was the first aggressor.
Defense counsel used portions of the 911 tape recording to challenge the credibility of the complainant. The government in turn admitted the entire 911 tape into the record and defense counsel requested re-direct of the witness based on the entire 911 tape being admitted. It was denied giving rise to this appeal due to the violation of the defendant’s confrontation clause.
In criminal cases, a defendant’s right to confront the witnesses against him is protected by the 6th Amendment and this right is satisfied if defense counsel is given an opportunity to cross-examine the government’s witnesses or in the case to re-cross.
Generally the government who bears the burden of proof presents its affirmative case through direct examination of its witnesses. Defense counsel is then given the opportunity to cross-examine the government’s witnesses with a limited scope to those items raised by the direct examination,
The government then gets to re-direct, based on defense’s cross examination again limited in scope to the cross examination by defense. There is no constitutional right to recross-examine a witness, since the scope of the redirect examination is limited to matters which were first raised on cross-examination.
Here however there was a caveat. The government entering the entire 911 tape changed the scope of evidence presented and thus because such admission was not immaterial, then defense was entitled to another cross limited to the scope of the new evidence presented, the 911 entire recording.
The 911 tape essentially inculpated the defendant with a new, nearly contemporaneous account of the incident through the tape piling additional evidence against him while resuscitating the credibility of the complaining witness.
In short, the defense should have been afforded another chance to confront the new evidence (the 911 tape) to safeguard the defendant’s 6th Amendment rights and because the new evidence was material and substantive, and the trial court’s denial of request for reexamination of witness abridged Green’s Constitutional rights, reversal of the conviction was warranted.
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