We have posted in the past, and quite recently, about the complexity courts face when trying to apply the Confrontation Clause in criminal cases.
The U.S. Supreme Court in 1974 in Davis v. Alaska held that the Sixth Amendment’s confrontation right “means more than being allowed to confront the witness physically” in state criminal proceedings. The essence of the right, the Court explained, means state criminal defendants must be given a meaningful opportunity test the “believability of a witness and the truth of his [or her] testimony.”
The confrontation right rests exclusively with criminal defendants. It is “designed to prevent improper restrictions on the type of questions that defense counsel may ask during cross-examination;” and while the trial has the discretion to limit, even preclude, defense counsel’s inquiry into collateral, repetitive, or “unduly harassing” issues, this discretion cannot negate a defendant’s right to expose a “witness’ motivation in testifying [which] is a proper and important function of the constitutionally protected right of cross-examination.”
The strange case of Donato Nappi gave the Second Circuit Court of Appeals an opportunity on July 15, 2015 to discuss the right of confrontation.
Nappi spent 26 years in prison before being released on parole. He had been married to his wife, Janice, some ten years before his incarceration. After his release on parole, Nappi moved in with Janice at her home. Trial testimony revealed that despite being together, they “really weren’t that close.” In fact, the couple slept in different bedrooms with Janice keeping her bedroom door dead-bolted.
Nappi’s parole officer approved the couple’s living arrangement; however, the officer, Jeffery Stewart, instructed Janice that no firearms could be in her residence as long as Nappi resided there. According to Janice, Nappi sought her help in retrieving a gun from a family home and bringing it to her residence. Janice said she agreed to the arrangement so long as Nappi agreed to let her conceal it somewhere in the residence without him knowing where it was. He agreed as long as he could keep the weapon’s ammunition in his room.
Some months after Nappi’s release, Stewart made an unannounced “home visit” to the residence. The parole officer did not witness any violations of the conditions of Nappi’s parole release and went on about his business. The next day Stewart received a phone call from Janice who informed the parole officer that Nappi had a weapon in the residence. Trial testimony revealed that Stewart “decided it would be best for [Janice] to move that weapon” from the place she had stored it in her bedroom to “the bed area or under the bed” in another unused bedroom. An ensuing law enforcement search discovered the gun in the spare bedroom where Janice put it.
Nappi faced two state trials on an unlawful weapon’s charge. During the first trial, Nappi’s defense attorney was permitted to engage in an expansive cross-examination into Janice’s motivation for reporting the weapon to Stewart. Defense counsel presented the theory that she wanted her husband out of the way so she could conceal the fact that she had used her home as collateral to secure the bail release of Del Dyman, with whom she was romantically involved. The prosecution rebutted this defense theory with its theory that Janice had no reason to “falsely implicate” Nappi because she could have revoked their living arrangement at any time, underscoring its theory with the collateral premise that she had remained married to Nappi during his lengthy incarceration.
The jury could not reach a verdict based on either theory. A mistrial was declared. At Nappi’s second trial, the prosecution moved to exclude any testimony concerning Janice’s relationship with Dyman. The court waited until the trial began before ruling that defense counsel could not cross-examine Janice about “her relationship with Dyman, including her posting bond for him.” Defense counsel then asked the court for an opportunity to make “an offer of proof” because “the entire defense was based on the fact that we believe that the gun was planted by Ms. Nappi.” In asking the trial court to either dismiss the charge or declare a mistrial, defense counsel argued that Nappi had “been denied his constitutional right to present a defense.”
The prosecution countered this offer of proof with the argument that there “should be no reference to any other male friends or boyfriends she may or may not have had” because such evidence was “clearly collateral … and immaterial to why we’re here.” The prosecution pointed out that Janice had “already testified [to] what her motive was for coming forward to the police here. She testified her motive was that she was afraid for her life, and there’s no other motive of record or in existence.”
The trial court sided with the prosecution. Nappi was convicted. All of his state appeals and post-conviction pleadings were denied by the reviewing courts. These courts essentially held that Janice’s motivation for testifying was no more than a “collateral matter” not implicating the confrontation right.
Nappi’s case reached its way to the Second Circuit by virtue of a federal writ of habeas corpus. The appeals court at the outset noted that the state court rulings were “contrary to clearly established Supreme Court precedent,” a prerequisite to securing federal habeas relief under 28 U.S.C., Sec. 2254. The Second Circuit pointed to the 1989 Supreme Court decision in Delaware v. Van Arsdall which held that preventing cross-examination on a subject “the jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony” violates the confrontation right.
The right to meaningful cross-examination of a witness about bias or improper motive is rooted deep in Confrontation Clause jurisprudence. For example, the Second Circuit has long held that “the question is whether the defendant’s inability to examine the witness precludes defendant from testing the truth of the witness’s direct testimony, or whether the answers solicited might have established untruthfulness with respect to specific events of the crime charged.”
The Second Circuit pointed that Janice brought the gun to her residence; that she had the gun in her bedroom (which she did not share with Nappi); that she kept her bedroom dead-bolted; and that she moved the gun after reporting it to the parole officer. The first jury had heard all these facts and was unable to reach a unanimous verdict. The appeals court observed that these same facts would have been “of significant importance” to the second jury as well. The court pointed to a 1999 Supreme Court decision, Lilly v. Virginia, which held that “the central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.”
Based on these Supreme Court precedents, the Second Circuit found that Nappi’s confrontation right had been violated, and because it could not say “with fair assurance … that the judgment was not substantially swayed by the error,” it could not find the violation was a “harmless error.” The appeals court reversed Nappi’s conviction, ordering that he be released from custody unless the State took concrete steps to retry him.