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California Court of Appeal: Confrontation Clause Violated Where Defense Prohibited From Cross-Examining Prosecution Witness About Biased Motivation and Fabrication

by Douglas Ankney

The Court of Appeal of California, First Appellate District, held that Cecilio Castaneda-Prado’s right to confront his accusers was violated when the superior court prohibited his attorney from cross-examining a prosecution witness about biased motivation and fabrication after the witness had testified at the preliminary hearing that she was testifying to help her mother obtain a “U visa.” (Note: U visa is “a temporary nonimmigrant visa that provides legal status for noncitizens who assist in the investigation of serious crimes in which they have been victimized.” 8 U.S.C. § 1101(a)(15)(U).)

Castaneda-Prado was convicted by jury of five counts of committing a lewd act on a child under age 14, along with allegations that the charges involved substantial sexual conduct involving multiple victims after child victims Jane Doe 1 (“J.D. 1”) and Jane Doe 2 (“J.D. 2”) accused him of several instances of sexual abuse. He was sentenced to 125 years to life (five consecutive terms of 25 years to life).

During cross-examination of J.D. 2 at the preliminary hearing, defense counsel elicited testimony from J.D. 2 that she had filed a declaration in support of her request for a restraining order against Casteneda-Prado. And in the declaration, J.D. 2 had not said anything about Castaneda-Prado forcing her to touch his private area as she had later accused. When asked if she had filed the declaration to “assist [her] mother in getting a U-visa,” J.D. 2 responded “yes.”

On redirect examination, the prosecutor asked J.D. 2 “[e]verything that you are saying that [Castaneda-Prado] did, are you saying that [Castaneda-Prado] did that because he did do that or are you saying that he did that related to a U-visa?” J.D. 2 answered “he did do that.”

Shortly before trial began, the prosecutor moved in limine to “exclude any questioning of [J.D. 2] or any other witnesses about any witnesses’ current or former status as a citizen of the United States, or any other country, as well as exclude any questioning about U visas or immigration relief.” The prosecutor cited People v. Villa, 55 Cal. App. 5th 1042 (2020), and stated that neither “J.D. 2 [who is an American citizen], nor her mother, has in fact submitted a U visa application for certification.”

Defense counsel argued that he “need[ed] to be able to inquire about U visa status in order to have a fair trial” because J.D. 2 “admitted under oath” that she had filed her declaration to assist her mother in obtaining a U visa. And a report from an investigator within the prosecutor’s office stated that J.D. 2’s mother informed the investigator that the mother had submitted documents with Catholic Charities to obtain a U visa. Defense counsel iterated that it would only be “a matter of asking a couple of questions of the witness” and that he would call an immigration attorney to “succinctly describe what a U visa is and how one might be obtained.” And to clarify exactly what documents had been filed, defense counsel requested a hearing under Evidence Code (“EC”) 402 to “get a little bit more information here.”

The trial court granted the prosecution’s motion to exclude evidence about U visas, reasoning that the prejudice of “undue consumption of time, substantial risk of confusing the jury,” and knowledge of “who is in the state legally or the country legally” outweighed the probative value of the evidence.

Defense counsel renewed his request to question the witnesses about U visas throughout trial – prior to the testimony of both J.D. 1 and J.D. 2 and during the prosecutor’s closing argument (in which the prosecutor told the jury that there was no evidence of any incentive or reason for J.D. 1 or J.D. 2 to falsely accuse Castaneda-Prado). Each time, the trial court stood by its earlier ruling. On appeal, Castaneda-Prado argued that “the trial court violated his confrontation and due process rights by excluding all evidence related to a U visa.”

The Court observed “[c]ross-examination is known as ‘the greatest legal engine ever invented for the discovery of truth.’” White v. Illinois, 502 U.S. 346 (1992). “‘Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation,’ the United States Supreme Court has said, ‘[c]ross-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 (1974). The right to cross-examine is fundamental to the adversarial process and is protected by the U.S. Constitution’s Sixth Amendment made applicable to the states via the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400 (1965). Article I, section 15 of the California Constitution provides the same guarantee. People v. Cromer, 24 Cal.4th 889 (2001).

“Confrontation Clause cases fall into two broad categories: cases involving the admission of out-of-court statements and cases involving restrictions imposed by law or the trial court on the scope of cross-examination.” Delaware v. Fensterer, 474 U.S. 15 (1985). “In the latter class of cases, restrictions so stringent as to render cross-examination ineffective will give rise to confrontation clause questions because, in that scenario, they ‘effectively … emasculate the right of cross-examination itself.’” Id.

Courts have long “recognized that the exposure of a witness’s motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Delaware v. Van Arsdall, 475 U.S. 673 (1986). “That is because, among the many varieties of impeachment evidence, bias has traditionally been viewed as especially powerful.” Alford v. United States, 282 U.S. 687 (1931). “Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of witness’ testimony.” United States v. Abel, 469 U.S. 45 (1984). “Facts showing bias are considered so highly probative of credibility they are almost never deemed categorically off limits.” Id.

Deciding Castenada-Prado’s appeal required the Court to determine whether the trial court abused its broad discretion in deciding evidentiary matters, and if so, was the error harmless under Chapman v. California, 386 U.S. 18 (1967). Evidence may be excluded in order to avoid “undue consumption of time on collateral matters” and where it may cause “undue prejudice or jury distraction.” EC 352. However, unless “the dangers of undue prejudice, confusion, or time consumption substantially outweigh the probative value of relevant evidence, a section 352 objection should fail.” People v. Doolin, 45 Cal.4th 390 (2009). “The more substantial the probative value of the evidence, the greater the danger of the presence of one of the excluding factors that must be present to support an exercise of trial court discretion excluding the evidence.” Kessler v. Gray, 77 Cal. App. 3d 284 (1978).

Here, Castenada-Prado’s cross-examination to explore bias was the quintessential purpose for cross examination, observed the Court. The trial court’s reasons for exclusion were not supported by the record. Questioning J.D. 2 about the U visa would have been brief as would an explanation to the jury of the purpose of the U visa. J.D. 2 would not have been prejudiced because she was a U.S. citizen, so the jury could not have drawn a negative inference toward her. Villa. The Court concluded the trial court abused its discretion by the blanket prohibition against exploring potential bias through cross-examination of J.D. 2 about the U visa.

Under Chapman, the burden is on the People to prove the error was harmless beyond a reasonable doubt. In the present case, the verdict turned on witness credibility because there was no physical evidence or eyewitness testimony. The prosecutor emphasized falsely during closing that there was no evidence to show J.D. 2 had an incentive to fabricate. The Court chided: “Prosecutors should never assert or imply that there is no evidence on a certain point when they know such evidence exists but was excluded by the court. Such arguments may, in an appropriate case, result in the granting of a new trial motion or an appellate reversal on grounds of prosecutorial misconduct.”

Had the jury been aware of J.D. 2’s statement, the overall strength of the prosecution’s evidence did not compel a finding by the jury that Castenada-Prado was guilty as charged beyond a reasonable doubt because the jury would have had a “significantly different impression” of J.D. 2, the Court concluded. Van Arsdall.

Accordingly, the Court reversed the judgment of the trial court and remanded for further proceedings consistent with its opinion. See: People v. Castaneda-Prado, 94 Cal. App. 5th 1260 (2023).  


Editor’s note: Anyone with an interest in the issue of the constitutional protection of cross-examination for bias is encouraged to read the Court’s full opinion, which includes a lengthy and useful examination of the governing case law and other relevant authority.

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