Lindsey v. United States, 8091.

• Decision Date: 01 December 1942
• Docket Number: No. 8091.,8091.
• Citation: 77 US App. DC 1,133 F.2d 368
• Parties: LINDSEY v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

77 US App. DC 1, 133 F.2d 368 (1942)

LINDSEY v. UNITED STATES.

No. 8091.

United States Court of Appeals for the District of Columbia.

Decided December 1, 1942.

Messrs. James G. Tyson and Richard R. Atkinson, both of Washington, D. C., for appellant.

Mr. Dennis McCarthy, Assistant United States Attorney, of Washington, D. C., with whom Mr. Edward M. Curran, United States Attorney, and Mr. Charles B. Murray, Assistant United States Attorney, both of Washington, D. C., were on the brief, for appellee.

Before STEPHENS, EDGERTON, and RUTLEDGE, Associate Justices.

STEPHENS, Associate Justice.

The appellant was charged in separate indictments by the grand jurors of the United States in and for the District of Columbia with rape upon one Joyce E. Smith (Criminal No. 68,168 in the District Court of the United States for the District of Columbia), and assault with intent to kill upon one Lawrence E. McCullough (Criminal No. 68,169 in the District Court). To each indictment he pleaded not guilty. Upon agreement of counsel and order of the District Court the two charges were consolidated for trial. A verdict of guilty was returned upon each indictment on October 9, 1941. To the verdict of guilty in the rape charge the jury added the words "with the death penalty." On October 31 sentence of death by electrocution was imposed by the District Court under the verdict of rape and sentence of five to fifteen years' imprisonment in the penitentiary under the verdict of assault with intent to kill. From these judgments the appellant appeals to this court. He assigns numerous errors of which it is necessary to discuss only those mentioned below. I think there should be reversal of both convictions because of denial of the appellant's right of cross-examination and because of erroneous instructions. I think also that the court should certify to the Supreme Court the question raised by the appellant as to the constitutionality of D. C.Code (1940) § 22-2801.

1. The efficacy of cross-examination as a test of the dependability of testimony is too well understood to require extensive explanation. Evidence supplied through the lips of witnesses is subject to the possible infirmities of falsification or bias and the inaccuracies which flow from fallibility of human powers of observation, memory, and description. The annals of the legal profession are filled with instances in which testimony, plausible when supplied on examination in chief, has by cross-examination been shown to be, for one or more of the reasons mentioned, faulty or worthless. So definitely, indeed, has the efficacy of cross-examination as a weapon for the discovery of truth been recognized in our system of law that cross-examination is held to be a right, not a mere privilege. It is often stated that the control of cross-examination is within the discretion of the trial judge, but it is only after a party has had an opportunity substantially to exercise the right of cross-examination that discretion becomes operative.

In respect of such things as needless protraction, conduct of an examination in a manner unfair to a witness, undue inquiry into collateral matters to test credibility, and the like, cross-examination is properly within the discretion of the trial judge, and there can be no reversal except for abuse. But the distinction between limitation of cross-examination in such respects and denial of the right of cross-examination is clear and well established. The distinction is well put in Heard v. United States, 8 Cir., 1919, 255 F. 829, in an opinion by Sanborn, Circuit Judge:

". . . A full cross-examination of a witness upon the subjects of his examination in chief is the absolute right, not the mere privilege, of the party against whom he is called, and a denial of this right is a prejudicial and fatal error. It is only after the right has been substantially and fairly exercised that the allowance of cross-examination becomes discretionary. Gilmer v. Higley, 110 U.S. 47, 50, 3 S.Ct. 471, 28 L.Ed. 62; Resurrection Gold Mining Co. v. Fortune Gold Mining Co. 8 Cir. 129 F. 668, 674-676, 64 C.C. A. 180, and cases there cited; Safford v. United States 8 Cir. 233 F. 495, 501, 503, 147 C.C.A. 381. . . ." Italics supplied 255 Fed. at page 832.

The Supreme Court of the United States has made a like declaration of the law in Alford v. United States, 1931, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624. In that case, in an opinion by Mr. Justice Stone, the Court said:

"Cross-examination of a witness is a matter of right. The Ottawa, 3 Wall. 268, 271, 18 L.Ed. 165. Its permissible purposes, among others, are that the witness may be identified with his community so that independent testimony may be sought and offered of his reputation for veracity in his own neighborhood, cf. Khan v. Zemansky, 59 Cal.App. 324, 327 ff., 210 P. 529; 3 Wigmore, Evidence (2d ed.) § 1368 I. (1) (b); that the jury may interpret his testimony in the light reflected upon it by knowledge of his environment, Kirschner v. State, 9 Wis. 140; Wilbur v. Flood, 16 Mich. 40, 93 Am.Dec. 203; Hollingsworth v. State, 53 Ark. 387, 14 S.E. 41; People v. White, 251 Ill. 67, 72 ff., 95 N.E. 1036; Wallace v. State, 41 Fla. 547, 574 ff., 26 So. 713; and that facts may be brought out tending to discredit the witness by showing that his testimony in chief was untrue or biased. Tla-Koo-Yel-Lee v. United States, 167 U.S. 274, 17 S.Ct. 255, 42 L.Ed. 166; King v. United States 5 Cir. 112 F. 988; Farkas v. United States 6 Cir. 2 F.2d 644; see Furlong v. United States 8 Cir. 10 F.2d 492, 494.

"Counsel often cannot know in advance what pertinent facts may be elicited on cross-examination. For that reason it is necessarily exploratory; and the rule that the examiner must indicate the purpose of his inquiry does not, in general, apply. Knapp v. Wing, 72 Vt. 334, 340, 47 A. 1075; Martin v. Elden, 32 Ohio St. 282, 289. It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. Tla-Koo-Yel-Lee v. United States, supra; King v. United States, supra; People v. Moore, 96 App.Div. 56, 89 N.Y.S. 83, affirmed without opinion, 181 N.Y. 524, 73 N.E. 1129; cf. People v. Becker, 210 N.Y. 274, 104 N. E. 396. To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. Nailor v. Williams, 8 Wall. 107, 109, 19 L.Ed. 348; see People v. Stevenson, 103 Cal.App. 82, 284 P. 487; cf. Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L. Ed. 345. In this respect a summary denial of the right of cross-examination is distinguishable from the erroneous admission of harmless testimony. . . .

"The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted. Storm v. United States, 94 U.S. 76, 85, 24 L.Ed. 42; Rea v. Missouri, 17 Wall. 532, 542-543, 21 L. Ed. 707; Blitz v. United States, 153 U.S. 308, 312, 14 S.Ct. 924, 38 L.Ed. 725. But no obligation is imposed on the court, such as that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self-incrimination, properly invoked. There is a duty to protect him from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him. President, etc., of Third Great Western Turnpike Road Co. v. Loomis, 32 N.Y. 127, 132, 88 Am.Dec. 311; Wallace v. State, supra; 5 Jones, Evidence (2d ed.) § 2316. But no such case is presented here. The trial court cut off in limine all inquiry on a subject with respect to which the defense was entitled to a reasonable cross-examination. This was an abuse of discretion and prejudicial error. Tla-Koo-Yel-Lee v. United States, supra; Nailor v. Williams, supra; King v. United States, supra; People v. Moore, supra; cf. People v. Becker, supra. . . ." Italics supplied 282 U.S. at pages XXX-XXX-XXX, 51 S.Ct. at pages 219, 220, 75 L.Ed. 624.

In the Alford case, where the charge was use of the mails to defraud, a Government witness on examination in chief gave testimony damaging to the accused with respect to various transactions, including conversations between the accused and the witness and statements made by the accused to third persons. For the purpose of discrediting this testimony, the accused's counsel sought to cross-examine the witness as to his place of residence, insisting that the jury was entitled to know who he was, where he lived, and what his business was. In particular, counsel sought to bring out that the witness was in the custody of the Federal authorities, this for the purpose of showing whatever bias or prejudice he might have. Denial of this cross-examination by the trial court was affirmed in the Circuit Court of Appeals. The Supreme Court reversed on the sole ground of the denial of the right of cross-examination. In view of the fact that the cross-examination in the Alford case went to collateral matters touching credibility, whereas the cross-examination denied in the instant case, was, as will appear below, directed to a critical issue, the recognition of the Alford case that cross-examination is a matter of right applies with great force.

Against the charges for which he was on trial, the appellant relied primarily upon the defense of insanity. In his behalf, through the testimony of expert witnesses,...