Goverment's Burden of Proof on Harmless Error Review of Confrontation Clause Violation Depends on Type of Violation

United States v. Alvarado-Valdez, No. 99-40370 (5th Cir. Mar. 12, 2008) (Higginbotham, Davis, Smith)

Here's one for all the appellate geeks out there: how must the Government meet its burden of proving that a Confrontation Clause violation at trial was harmless beyond a reasonable doubt? Answer: it depends on the type of Confrontation Clause violation.

If the violation consists of the introduction of inadmissible testimony, then apply the Chapman v. California test: the error is harmless only if there is no reasonable possibility that the evidence contributed to the conviction. This is the test that would apply to Crawford violations (the introduction of testimonial hearsay absent unavailability and a prior opportunity for cross-examination).

But if the violation is a denial of the defendant's right to impeach a witness for bias, then apply the test from Delaware v. Van Arsdall, which considers

the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.

According to Alvarado-Valdez, Van Arsdall did not announce a standard of review different from that set forth in Chapman. It's just that the Van Arsdall "test makes sense in light of that specific Confrontation Clause violation: To determine whether a defendant was harmed by not being able to impeach a witness, it is necessary to look at what the full exercise of cross-examination could have disclosed." Hence the different proof requirements depending on the exact type of Confrontation Clause violation.

And now for an interesting procedural aside. Alvarado was convicted almost a decade ago, but he may actually have benefitted from having his appeal take so long. Here's how:

In 1998, Alvarado was charged in a drug conspiracy. One of his codefendants pled guilty before trial, and later fled to Mexico. At Alvarado's trial, the Government called "Agent Garcia" to testify about what that codefendant said during his interrogation, and relied heavily on that testimony in the closing argument. Alvarado was convicted, and appealed.

In 2001, the Fifth Circuit erroneously dismissed the appeal for failure to prosecute. The court reinstated the appeal in 2006, and just yesterday reversed Alvarado's conviction on the basis of the Crawford violation.

As it turns out, Alvarado may have actually benefitted from the erroneous dismissal of his appeal. Had that not happened, the court likely would have resolved the appeal in 2001 or 2002. Of course, that was before Crawford, which was decided in 2004. It's possible that the court would not have found a Confrontation Clause violation based on the pre-Crawford state of the law, thus affirming Alvarado's conviction. And Crawford isn't retroactive, so Alvarado wouldn't have been able to benefit from it. How 'bout that?