Cross-Examination by Use of Adopted Silence

By Wayne C. Fricke; June 2002

     On May 23, 2002, the Ninth Circuit filed an opinion in United States v. Adamson, 00-10643 (May 23, 2002, 9^th Circuit), which reversed a  defendant’s conviction for money laundering and wire fraud.  The court stated that the defendant was not afforded the opportunity to meaningfully cross-examine witnesses against him and that there was a divergence between the evidence at trial and what was charged in the grand jury indictment.

      As it relates to cross-examination of a witness, the opinion contains an excellent discussion as to when a defendant may use silence to cross-examine a particular witness called to testify against him.  The court began its analysis with the underpinnings of the Sixth Amendment, which secures a defendant’s right to cross-examine government witnesses, including the right to examine a witness’s credibility.  Citing other cases, the court noted that “at the core of the confrontation clause is the right of every defendant to test the credibility of witnesses through cross-examination.”  This includes the use of prior inconsistent statements to argue that a witness’s entire testimony may not be credible.  Moreover, the court noted that  witnesses may be impeached “by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.”

     In Adamson, an interview was conducted jointly with two individuals who ultimately testified against the defendant.  During the interview, one individual (they were brothers) essentially gave numerous statements relating to the misconduct of the two, while the other listened silently.  The Ninth Circuit agreed that if the one brother at the pre-trial interview had asserted facts about the other’s conduct that he did not want attributed to him, it would have been natural for him to speak up and voice his disagreement, which he did not do.

     At trial the non-speaking brother testified that the two individuals had fabricated explanations at the interview which “the court noted was inconsistent with his silence.”  The court noted this inconsistency went to the heart of his credibility, which cast doubt on the reliability of his in-court testimony, and also raised questions regarding his motivation to testify.  The court also held that it was not sufficient to allow the statements to come into evidence through the other brother’s testimony.    It was critical that the defendants be able to use the statements, as well as the witness’s silence as part of the cross-examination of the non-speaking brother.  By limiting the scope of the cross-examination the defendant was prevented from assessing the credibility of the other brother which denied the jury access to information needed in order to appraise the brother’s biases and motivations.

      Finally, the court also noted that the statements were not hearsay because they were not sought to be admitted to prove the truth of the matter asserted, but only as prior inconsistent statements.