Ninth Circuit Resolves Intra-Circuit Split on Standard of Review in Confrontation Clause Challenges
The California Blog of Appeal recently posted about U.S. v. Larson, --- F.3d ----, 2007 WL 2192256, case no. 05-30076 (9th Cir. August 1, 2007), an en banc Ninth Circuit court resolves a 3-way intra-circuit split on the standard of review to apply in Confrontation Clause challenges. You can read that post by visiting http://www.calblogofappeal.com/2007/08/01/en-banc-ninth-circuit-resolves-intra-circuit-split-on-standard-of-review-in-confrontation-clause-challenges/.
Here is an excerpt from the case, where the court notes a circuit split on the issue:
We begin by acknowledging an intra-circuit conflict regarding the standard of review for Confrontation Clause challenges to a trial court's limitations on cross-examination.FN5
FN5. There is also disagreement among the circuits mirroring our intra-circuit conflict. Compare United States v. Vitale, 459 F.3d 190, 195 (2d Cir.2006) (reviewing Confrontation Clause claims de novo) with United States v. Orisnord, 483 F.3d 1169, 1178 (11th Cir.2007) (publication pending) (reviewing for abuse of discretion a Confrontation Clause claim based on a limitation on cross-examination); United States v. Smith, 451 F.3d 209, 220 (4th Cir.2006) (reviewing restrictions on cross-examination claims for abuse of discretion); United States v. Tykarsky, 446 F.3d 458, 475 (3d Cir.2006) (same) and United States v. Kenyon, 481 F .3d 1054, 1063 (8th Cir.2007) (“We review evidentiary rulings regarding the scope of a cross examination for abuse of discretion, but where the Confrontation Clause is implicated, we consider the matter de novo.”) (citations omitted); United States v. Townley, 472 F.3d 1267, 1271 (10th Cir.2007) (“Although a district court's evidentiary rulings are reviewed for abuse of discretion, whether admission of such evidence violates the Confrontation Clause is reviewed de novo.”), petition for cert. filed, --- U.S.L.W. ---- (U.S. Mar. 12, 2007) (No. 06-10032).
Thanks to Greg May of The California Blog of Appeal for notifying me of this development.