Cross-Examination Flashcards
Doesn’t James say that this is not an issue unless it infringes on ability to assess a witness’s credibility
Only in the context of assessing a confrontation clause violation. James says nothing about impeachment by omission. It also is worth noting that James is rather distinguishable–it involved a defendant wanting to explore past examples of racial bias by a government witness unrelated to the offense. The judge there did not abuse his discretion in holding that failed 403.
How did the district court use the wrong legal standard?
It is worth noting that the first time she answers the question the judge simply if asked if it was a sufficiently similar question. The second time the judge again noted the different question and suggested that is what failed to give rise to circumstances in which the agent would naturally give up those answers. But the Jenkins standard looks broader: it asks if the circumstances in general were such that a topic naturally would have come up. And in the first, trial the agent was discussing at length all of the odd things that he observed about the vehicle. Yet he never mentioned the smell.
You cannot possibly be saying that this affected the outcome of the case.
I agree that’s a tough argument, your honor. But I do think that this issue is important for two reasons: It still needs to be considered under a cumulative error analysis and it goes to one of the core themes of the second prosecution: That Mr. Gonzalez’s vehicle smelled so bad that he had to have noticed it and thus had to have known of the modifications.
Where specifically in the first trial should this have come up?
ER-883–97 provide more than 20 pages of transcript talking about all of the weird things in the car. That included repeated discussion of the gas tank. For example at ER-887. And ER 892, the officer was asked if he noticed anything unusual about the fuel sending unit connected to the tank. There was no mention of the smell.
