Per Se Pro Se: 5th Circuit Finds No Problem With Admission of Former Testimony Against Defendant Denied Right to Proceed Pro Se

Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

Testimony [by a now “unavailable” declarant] that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Assume that (1) a witness for the prosecution testifies against a defendant at a first trial, resulting in his conviction; (2) the defendant later has his conviction reversed based upon a finding that he was denied his right to proceed pro seFederal Rule of Evidence 804(b)(1)?

This was the question addressed by the Fifth Circuit in its recent opinion in United States v. Richardson, 2015 WL 1283694 (5th Cir. 2015). I disagree with its conclusion.

The facts in Richardson were as stated above, and the defendant was ultimately convicted of “being a felon in possession of a firearm, possession of marijuana plants, distribution of ecstasy, possession with intent to distribute ecstasy, and possession of marijuana.” After he was convicted, the defendant appealed, claiming that the admission of the deceased witness’s testimony violated his rights under the Confrontation Clause.

Specifically, the defendant claimed that the witness

“was not subject to the cross-examination secured by” the Confrontation Clause because his testimony was taken in violation of [the defendant’s] constitutional right of self-representation. He also asserts that Moore, his counsel at the first trial, did not properly cross-examine [the witness].” 

In response, the government argued 

that the Confrontation Clause “only guarantees an opportunity for effective cross-examination”—a standard that Moore satisfied by “effectively and thoroughly” questioning [the witness] about his cooperation with law enforcement and his motives to lie.

The Fifth Circuit agreed with the government, concluding that

the relevant case law speaks in terms of an “adequate” or “effective” “opportunity” for cross-examination, and it recognizes that there are constitutionally permissible limits on the scope of cross-examination. Richardson has not shown that he lacked such an opportunity.

Critically, the transcript of [the witness]’s cross-examination shows that Moore questioned [the witness] in detail about his motive to cooperate with law enforcement; his arrests and convictions for family violence, theft, and possession of narcotics and firearms; his relationship with [the defendant]; and the contours of his trial testimony.

My response: So what? A defendant has the fundamental right to self-representation. If that right is violated by the court forcing the defendant to proceed with an attorney, that defendant has been denied the right to confrontation if the prosecution admits testimony by a witness whom the defendant was not able to cross-examine himself.

The Fifth Circuit tried to sidestep this argument by noting that the defendant presented

no authority in support of a per se rule of inadmissibility when the declarant’s prior testimony was elicited in violation of the defendant’s Sixth Amendment right of self-representation. It appears that no such authority exists. We note that a categorical approach could severely disadvantage the Government in criminal prosecutions and could lead to perverse results (e.g., effective cross-examination deemed constitutionally infirm because the defendant wished to represent himself and argue a theory grounded in inadmissible evidence).

My response is two-fold: First, such a categorical approach would severely disadvantage the defendant in criminal prosecutions. Exhibit A is Richardson. Simply put, the defendant was precluded from cross-examaning the witness whose testimony was admitted against him at the second trial.

Second, I don’t agree with the Fifth Circuit that a categorical approach could lead to perverse results. The Fifth Circuit seems to assume that we can isolate certain decisions made by defense counsel as the only ones that prejudiced a defendant denied the right to counsel. The whole point of the right to self-representation is that it allows the defendant to be the captain of his ship and make both the individual and holistic decisions that are usually made by defense counsel.

Therefore, contrary to the Fifth Circuit, I endorse a categorial approach pursuant to which the former testimony of an unavailable witness should never be admissible against a defendant denied his right to proceed pro se.

-CM