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"Sixth Circuit Grants Habeas Relief Because Trial Judge Redacted Key Portion of Witness’ Testimony Presented to Jury in Violation of Confrontation Clause"

by Dale Chappell

The U.S. Court of Appeals for the Sixth Circuit held that a witness’ edited statement from a prior trial, saying that she feared going back to jail if she didn’t say what she thought the judge wanted her to say which tainted the first trial, violated the Constitution’s Confrontation Clause because the trial judge redacted that portion of her statements read at the second trial and the defendant didn’t have the opportunity to admit her entire statement into evidence, after she went missing.

Over 20 years ago, Dwight Miller was convicted of murder in Tennessee. The best evidence the State had against him was a woman who told the police that she saw Miller in a car that looked like the victim’s and that Miller told her about the murder before anyone else knew about it. But when it came time for that witness to testify before the jury, she said she couldn’t remember anything. “I used to smoke a lot of crack and it burns your brain up,” she said. The court assumed she was lying and put her in jail with a copy of the police report and notes from Miller’s lawyer to “refresh” her memory.

When it came time for her to testify again, she recited exactly what the police report said. Miller’s lawyer then asked why she recalled things so clearly this time; she responded: “I don’t want to go back to jail.” Miller was convicted, but it was overturned on appeal, the court finding the witness’ statement was damaging. When it came time for the second trial, the witness disappeared. The trial court allowed the State to read the witness’ statements implicating Miller as the killer, but the court redacted the part where she said she feared being put back in jail if she didn’t say what she thought the court wanted her to say.

Miller was convicted again and sentenced to life in prison. His direct appeals were unsuccessful as were his state postconviction remedies. Miller then filed a habeas corpus petition in the U.S. District Court for the Western District of Tennessee, claiming a Confrontation Clause violation because of the trial court’s redaction of the witness’ statement. The district court denied relief, and he appealed.

In Crawford v. Washington, 541 U.S. 36 (2004), the U.S. Supreme Court held that the statements of a missing witness may be admitted in court, as long as the defendant had a prior opportunity to cross-examine the witness. The state court applied Crawford to Miller’s habeas case and determined that he cross-examined the witness at the first trial, and therefore, the admission of her edited statements at the second trial did not violate Crawford.

The Sixth Circuit recognized that this was a proper application of Crawford, “but Miller had a confrontation right, not a Crawford right,” the Court explained.

The Court noted that the Supreme Court “has divided its Confrontation Clause jurisprudence into two categories: cases about the admissibility of out-of-court statements and cases involving restrictions on the scope of cross-examination.” See Kentucky v. Stincer, 482 U.S. 730 (1987). The Court described the former category as “applicability cases,” which “address when the right applies.” And the Court described the latter category as “substance cases,” which “address how much cross-examination the right requires.” Most Confrontation Clause cases fall into one of these two categories; however, the present case “sits squarely at their intersection,” the Court stated. The issue is “what was clearly established in 2013, when the Tennessee” court ruled on Miller’s case, according to the Court. 

The Court explained the applicability rule as follows: “The State can introduce prior testimony only if the witness is unavailable and the defendant had a prior opportunity to cross-examine here.” Crawford. Citing various Supreme Court cases involving the substance category, the Court said that the “confrontation right means more than being allowed to confront a witness physically.” The Supreme Court has held that a Confrontation Clause violation occurs when a defendant is prohibited from engaging in cross-examination to show a witness’s “bias.” Delaware v. Van Arsdall, 475 U.S. 673 (1986). Fear of incarceration is a “prototypical” form of bias, the Court said. Alford v. United States, 282 U.S. 687 (1931).

The Court stated that Miller had the right to present to the jury the witness’ statement that she suddenly remembered her incriminating testimony because she didn’t want to return to jail. Similarly, at “his second trial, he retained that same right,” the Court ruled.

The State unconvincingly argued that, because the state court only applied Crawford to Miller’s habeas claim, the federal court could only assess its application of Crawford and no other Supreme Court cases. “But that is not how habeas review works,” the Court said. “We review the Tennessee court’s decision based on the claim before it, not the particular cases the parties cited or the specific arguments they made.”

This argument was directed at the federal court’s lack of authority to grant habeas relief to a state prisoner unless the state court’s decision on the merits “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Looking to the “full panoply” of Confrontation Clause cases in the Supreme Court, the Sixth Circuit held that it wasn’t limited to just Crawford.

“[The witness’] excised statement went directly to her credibility, for it could be read to disclose a strong motive to testify in accord with the statements the prosecution had provided because she feared that the trial court would send her back to jail if she did not,” said the Court, adding,
“[b]y redacting her testimony, the trial court denied the jury in Miller’s second trial [the opportunity to evaluate the witness’ credibility] and violated Miller’s confrontation right.” Thus, the Court ruled that the Tennessee court’s application of Confrontation Clause jurisprudence “was objectively unreasonable.”

Accordingly, the Court reversed and remanded to the district court to grant a conditional writ of habeas corpus. See: Miller v. Genovese, 994 F.3d 734 (6th Cir. 2021).

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Related legal cases

Miller v. Genovese

Kentucky v. Stincer

482 U.S. 730; 107 S. Ct. 2658; 96 L. Ed. 2d 631


No. 86-572

April 22, 1987, Argued

June 19, 1987, Decided



DISPOSITION: 712 S. W. 2d 939, reversed.


After a jury was sworn at respondent's Kentucky trial for committing sodomy with two minor girls, but before the presentation of evidence, the court conducted an in-chambers hearing to determine the girls' competency to testify. Respondent, but not his counsel, was excluded from this hearing. Under Kentucky law, when a child's competency to testify is raised, the judge is required to resolve whether the child is capable of observing, recollecting, and narrating the facts, and whether the child has a moral sense of the obligation to tell the truth. Thus, during the hearing, the judge and the attorneys limited themselves to questions designed to determine whether the girls were capable of remembering basic facts and of distinguishing between truth and falsehood. The judge ruled that both girls were competent to testify. Before each girl began her substantive testimony in open court, the prosecutor repeated some of the background questions asked at the hearing, while respondent's counsel, on cross-examination, repeated other such questions, particularly those regarding the girls' ability to distinguish truth from lies. After the girls' testimony was complete, respondent's counsel did not request that the court reconsider its competency rulings. Respondent was convicted, but the Kentucky Supreme Court reversed, holding that respondent's exclusion from the competency hearing violated his right to confront the witnesses against him.


1. Respondent's rights under the Confrontation Clause of the Sixth Amendment were not violated by his exclusion from the competency hearing. Pp. 736-744.

(a) The Confrontation Clause's functional purpose is to promote reliability in criminal trials by ensuring a defendant an opportunity for cross-examination. Pp. 736-739.

(b) Rather than attempting to determine whether a competency hearing is a "stage of trial" (as opposed to a pretrial proceeding) subject to the Confrontation Clause's requirements, the more useful inquiry is whether excluding the defendant from the hearing interferes with his opportunity for cross-examination. No such interference occurred here, because the two girls were cross-examined in open court with respondent present and available to assist his counsel, and because any questions asked during the hearing could have been repeated during direct and cross-examination. Moreover, the nature of the competency hearing militates against finding a Confrontation Clause violation, because questions at such hearings usually are limited to matters unrelated to basic trial issues. In addition, the judge's responsibility to determine competency continues throughout the trial so that a competency determination may be reconsidered on motion after the substantive examination of the child. Pp. 739-744.

2. Respondent's rights under the Due Process Clause of the Fourteenth Amendment were not violated by his exclusion from the competency hearing. The defendant's due process right to be present at critical stages of a criminal proceeding if his presence would contribute to the fairness of the procedure is not implicated here in light of the particular nature of the competency hearing, whereby questioning was limited to competency issues and neither girl was asked about the substantive testimony she would give at trial. There is no indication that respondent's presence at the hearing would have been useful in ensuring a more reliable competency determination. Pp. 745-747.

COUNSEL: Penny R. Warren, Assistant Attorney General of Kentucky, argued the cause for petitioner. With her on the briefs were David L. Armstrong, Attorney General, and John S. Gillig, Assistant Attorney General.

Mark A. Posnansky, by appointment of the Court, 479 U.S. 1005, argued the cause and filed a brief for respondent. *

* Briefs of amici curiae urging reversal were filed for the State of Arkansas et al. by Steve Clark, Attorney General of Arkansas, and Rodney A. Smolla, joined by the Attorneys General for their respective jurisdictions as follows: Don Siegelman of Alabama, Charles M. Oberly III of Delaware, Robert A. Butterworth of Florida, Charles Troutman of Guam, Jim Jones of Idaho, Linley E. Pearson of Indiana, Neil F. Hartigan of Illinois, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Edwin L. Pittman of Mississippi, William L. Webster of Missouri, Mike Greely of Montana, Brian McKay of Nevada, Stephen E. Merrill of New Hampshire, W. Cary Edwards of New Jersey, Hal Stratton of New Mexico, Lacy H. Thornburg of North Carolina, Nicholas Spaeth of North Dakota, Dave Frohnmayer of Oregon, LeRoy S. Zimmerman of Pennsylvania, James E. O'Neil of Rhode Island, T. Travis Medlock of South Carolina, Roger A. Tellinghuisen of South Dakota, W. J. Michael Cody of Tennessee, Jeffrey Amestoy of Vermont, J'Ada Finch-Sheen of the Virgin Islands, Charles G. Brown of West Virginia, and Donald J. Hanaway of Wisconsin; and for the Appellate Committee of the California District Attorneys Association by Ira Reiner and Harry B. Sondheim.

Briefs of amicus curiae urging affirmance were filed for the American Civil Liberties Union by George Kannar; and for the National Association of Criminal Defense Lawyers by Nancy Hollander.

Donald N. Bersoff filed a brief for the American Psychological Association as amicus curiae.

JUDGES: Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Powell, O'Connor, and Scalia, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan and Stevens, JJ., joined, post, p. 748.

OPINION: [*732] [***639] [**2660] JUSTICE BLACKMUN delivered the opinion of the Court.

[***HR1A] [1A]
[***HR2A] [2A]
The question presented in this case is whether HN1 the exclusion of a defendant from a hearing held to determine the competency of two child witnesses to testify violates the defendant's rights under the Confrontation Clause of the Sixth Amendment or the Due Process Clause of the Fourteenth Amendment.


Respondent Sergio Stincer was indicted in the Circuit Court of Christian County, Ky., and charged with committing first-degree sodomy with T. G., an 8-year-old girl, N. G., a 7-year-old girl, and B. H., a 5-year-old boy, in violation of Ky. Rev. Stat. § 510.070 (1985). After a jury was sworn, but before the presentation of evidence, the court conducted an in-chambers hearing to determine if the two young girls were competent to testify. n1 Over his objection, [*733] respondent, but not his counsel (a public defender), was excluded from this hearing. Tr. 15.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Immediately prior to the competency hearing of the two girls, the prosecutor moved that the charge regarding B. H., the 5-year-old boy, be dismissed because the prosecution did not believe B. H. was competent to testify. Respondent did not object and the court granted the prosecutor's motion. Tr. 13-14.

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The two children were examined separately and the judge, the prosecutor, and respondent's counsel asked questions of each girl to determine if she were capable of remembering basic facts and of distinguishing between telling the truth and telling a lie. Id., at 15-26. T. G., the 8-year-old, was asked her age, her date of birth, the name of her school, the names of her teachers, and the name of her Sunday [**2661] school. She was also asked whether she knew what it meant to tell the truth, and whether she could keep a promise to God to tell the truth. Id., at 16-18. n2 N. G., the 7-year-old girl, was asked similar questions. Id., at 20-25. n3 The two children were not asked about the substance of the testimony they were to give at trial. The court ruled that the girls were [***640] competent to testify. Respondent's counsel did not object to these rulings. Id., at 20, 25.

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n2 In response to these questions, T. G. stated that telling the truth meant "don't tell no stories." Id., at 17.

n3 N. G. replied that she would "get a whopping" if she told a lie. Id., at 24.

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Before each of the girls began her substantive testimony in open court, the prosecutor repeated some of the basic questions regarding the girl's background that had been asked at the competency hearing. Id., at 31-33 (direct examination of T. G.) (questions regarding age, where the witness attended school and Sunday school, and the like); id., at 66 (direct examination of N. G.) (questions regarding age and where the witness attended school). T. G. then testified, on direct examination, that respondent had placed a sock over her eyes, had given her chocolate pudding to eat, and then had "put his d-i-c-k" in her mouth. Id., at 34. N. G., on direct examination, testified to a similar incident. Id., at 69. n4

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n4 There is some confusion as to whether T. G. knew what a "d-i-c-k" was, although she spelled the word at trial. Id., at 55-58. It also appears that N. G. may have recanted her testimony somewhat on cross-examination. Id., at 77-78. These facts, however, relate to whether the evidence was sufficient to convict respondent of the crimes charged. The Kentucky Supreme Court concluded that the evidence was sufficient to withstand a motion for a directed verdict of acquittal. 712 S. W. 2d 939, 941 (1986). That ruling is not before us in this case.

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[*734] On cross-examination, respondent's counsel asked each girl questions designed to determine if she could remember past events and if she knew the difference between the truth and a lie. Some of these questions were similar to those that had been asked at the competency hearing. See id., at 38-39, 44-47, 60-63 (cross-examination of T. G.); 71-72, 74-75, 78-83 (cross-examination of N. G.). After the testimony of the girls was concluded, counsel did not request that the trial court reconsider its ruling that the girls were competent to testify. n5 The jury convicted respondent of first-degree sodomy for engaging in deviate sexual intercourse and fixed his sentence at 20 years' imprisonment. n6

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n5 After the two girls testified, the prosecution stated that it also wished to present the testimony of E. T., a 4-year-old boy who allegedly had witnessed the events in question. The court examined E. T. in the courtroom, without the jury present and, apparently, without respondent present. Tr. 87. No objection from respondent regarding his exclusion from this hearing appears on the record. The court ruled that the boy was competent to testify, a ruling to which respondent's counsel apparently objected. Id., at 109-110. After direct and cross-examination of E. T., defense counsel moved that the court reconsider its previous ruling that the boy was competent to testify. The court declined to rule that he was incompetent. Id., at 126-127.

Respondent's exclusion from E. T.'s competency hearing is not before us because the validity of respondent's absence from that hearing was never raised before the Kentucky Supreme Court. See Brief for Appellant in No. 84-SC-496-I (Ky. Sup. Ct.), pp. 14-17. Thus, not surprisingly, the majority opinion of the Kentucky Supreme Court refers solely to the competency hearing of the two girls.

n6 HN2 Under Kentucky law, deviate sexual intercourse means "any act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another." Ky. Rev. Stat. § 510.010(1) (1985). First-degree sodomy with a child under 12 is a Class A felony and conviction carries a minimum sentence of 20 years' imprisonment and a maximum sentence of life imprisonment. §§ 510.070(2) and 532.060.

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[*735] On appeal to the Supreme Court of Kentucky, respondent argued, among other things, that his exclusion from the competency hearing of the two girls denied him due process and violated his Sixth Amendment right to confront the witnesses against him. The Kentucky Supreme Court, by a divided vote, agreed that, [***641] under [**2662] the Sixth Amendment of the Federal Constitution and under § 11 of the Bill of Rights of the Kentucky Constitution (the right "to meet the witnesses face to face"), respondent had an absolute right to be present at the competency hearing because the hearing "was a crucial phase of the trial." 712 S. W. 2d 939, 940 (1986). The court explained that respondent's trial "might not have taken place had the trial court determined that the children were not competent to testify." Id., at 941. Two justices, however, dissented, concluding that respondent's right to confront the witnesses against him was not violated because respondent had the opportunity to assist counsel fully in cross-examining the two witnesses at trial. Id., at 942-944.

[***HR3A] [3A]
We granted certiorari, 479 U.S. 1005 (1986), to determine whether respondent's constitutional rights were violated by his exclusion from the competency hearing. n7

[***HR3B] [3B]

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 As an initial matter, respondent asks us to vacate our grant of certiorari because, in his view, the decision of the Kentucky Supreme Court rests on "'separate, adequate, and independent grounds.'" Brief for Respondent 50, quoting Michigan v. Long, 463 U.S. 1032, 1041 (1983). We decline to do so. In Michigan v. Long, we explained that "when . . . a state court decision fairly appears . . . to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion," we shall assume that the state court believed that federal law compelled its conclusion. Id., at 1040-1041. In this case, the Kentucky Supreme Court consistently referred to respondent's rights under the Sixth Amendment to the Federal Constitution as supporting its ruling. The court gave no indication that respondent's rights under § 11 of the Bill of Rights of the Kentucky Constitution were distinct from, or broader than, respondent's rights under the Sixth Amendment.

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[*736] II


[***HR4] [4]
[***HR5] [5]
HN3 The Sixth Amendment's Confrontation Clause provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." This right is secured for defendants in state as well as in federal criminal proceedings. Pointer v. Texas, 380 U.S. 400 (1965). The Court has emphasized that "a primary interest secured by [the Confrontation Clause] is the right of cross-examination." Douglas v. Alabama, 380 U.S. 415, 418 (1965). The opportunity for cross-examination, protected by the Confrontation Clause, is critical for ensuring the integrity of the factfinding process. Cross-examination is "the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. 308, 316 (1974). Indeed, the Court has recognized that cross-examination is the "'greatest legal engine ever invented for the discovery of truth.'" California v. Green, 399 U.S. 149, 158 (1970), quoting 5 J. Wigmore, Evidence § 1367, p. 29 (3d ed. 1940). The usefulness of cross-examination was emphasized by this Court in an early case explicating the Confrontation Clause:

HN4 "The primary object of the constitutional pro



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