Limiting recross examination in Sanchez v. U.S.

Jamison KoehlerEvidence, Opinions/Cases, Trial Advocacy

D.C. Superior Court judges do not typically allow re-cross examinations.  Yes, you have a constitutional right to confront witnesses against you in a criminal proceeding.  But, with judges enjoying widespread discretion to oversee the proceedings, this right is not without its limits.  

The defendant in Gabriel Sanchez v. United States, 287 A.3d 1241 (D.C. 2023), was charged with Assault with Intent to Kill While Armed and other offenses after he was arrested in connection with a shooting.  During his defense attorney’s cross-examination at trial of an eyewitness testifying for the government, the witness agreed that he had not seen a gun in the hand of the shooter who was identified as Sanchez.  Nor had he seen the shooter raise his hand before the shooting.  

On re-direct questioning by the prosecutor, the witness testified that he had in fact seen the shooter lower his arm after the shooting.

Defense counsel sought to recross-examine the witness.  Counsel argued that the “lowered arm” comment came out for the first time on cross-examination.  Fairness would suggest that the defense have an opportunity to explore this new fact. 

The court denied this request.  Thus this appeal.

In an opinion written by Associate Judge McLeese, the D.C. Court of Appeals acknowledged a criminal defense’s right to “cross examine the government’s witnesses about those matters that are raised by the direct examination.”  After all, the Sixth Amendment guarantees the right of a defendant in a criminal case to confront his accuser.

But, the Court held, this constitutional right generally does not extend to recross examinations.  The only exception is the “rare case in which material new matters are brought out on redirect examination.”

Continued the Court:  “In determining whether redirect examination brought out a new matter, we consider whether the defendant had an adequate opportunity to explore the matter at issue on cross-examination.”

The Court then drew the distinction between new matters and new information about a matter that had previously explored on cross-examination:

We acknowledge that the distinction between a new matter and new information about a previously explored matter is a question of degree.  At one extreme, any new piece of information brought out on redirect examination could be viewed as a new matter.  On that theory, all non-repetitive direct examination would trigger a constitutional right to recross examination.  On the other extreme, the matter could be understood broadly to be the defendant’s guilt or innocence, and all relevant information elicited on redirect examination would simply be new information on a matter that had previously been explored on cross-examination.  Our cases unsurprisingly reflect an intermediate approach rather than either extreme.

In this case, the Court concluded that the redirect examination had generated only additional information on a topic – the positioning of the shooter’s arm — that had already been explored extensively on cross-examination.  There was thus no violation of the defendant’s right to confrontation.  

Jon Norris represented Mr. Sanchez at trial, and Cecily Baskir represented him on appeal.  Judge McKenna was the presiding judge.