There was a pretty lively discussion here about whether the issue raised by the impressive Smith cert petition, No. 10-18, had actually been raised at CAAF. We scrounged copies of the CAAF briefs in the case today and it turns out that the answer is — yes.
Here’s the QP from the Smith cert petition:
“When a trial judge’s restriction on the cross-examination of a prosecution witness is challenged on appeal as a violation of the Confrontation Clause, is the standard of review de novo, as five circuits have held, or abuse of discretion, as six other circuits (and the court of appeals here) have concluded?”
(The full cert petition is available here.)
Here’s the standard of review section of the defense’s CAAF brief:
This Court has stated that a military judge’s restriction on cross-examination is reviewed for abuse of discretion. See United States v. Moss, 63 M.J. 233, 236 (C.A.A.F. 2006); United States v. Israel, 60 M.J. 485, 488 (C.A.A.F. 2005). Cadet Smith respectfully submits, however, that the standard should be de novo. Cadet Smith’s [sic] contends that the military judge violated his Sixth Amendment right to confront his accuser. Whether that assertion is correct, i.e., what the Sixth Amendment required here, is a question of law and thus properly subject to de novo review. That is why most other federal courts of appeals employ de novo review under similar circumstances. See, e.g., United States v. Smith, 308 F.3d 726, 738 (7th Cir. 2002) (“Ordinarily, a district court’s evidentiary rulings are reviewed for abuse of discretion. However, when the restriction [on cross-examination] implicates the criminal defendant’s Sixth Amendment right to confront witnesses against him, . . . the standard of review becomes de novo.” (citation omitted)). [footnote with cites to seven other circuit courts’ opinions] To be sure, the military judge’s ruling here would have to be reversed under either standard, because an error of law, such as misconstruing what the Sixth Amendment requires, always constitutes an abuse of discretion. See, e.g., Koon v. United States, 518 U.S. 81, 100 (1996). Cadet Smith nonetheless requests that this Court clarify that the proper standard of review for a constitutional challenge to a limit on cross-examination is de novo, and review his Sixth Amendment claim accordingly. [footnote: Such a clarification would not require this Court to overrule Moss and Israel. As the Court of Criminal Appeals stated here, in each of those cases this Court deemed the limit on cross-examination to be reversible error, “weakening the claim that they represent holdings as to the standard of review to be applied.” Smith, 66 M.J. at 557 n.7, J.A. 3, n.7.]
The Government’s brief also addressed the standard of review, devoting two pages to arguing for an abuse of discretion standard. The defense’s reply brief then devoted a page to countering the Government’s standard of review argument.
There’s no doubt that the issue raised by the cert petition’s Q.P. was pressed before and passed on by CAAF.