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Motion to Limit Recross

Motion to Limit Recross

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Published by Rickey Stokes
Washington D.C Public Integrity Unit motion to limit cross examination
Washington D.C Public Integrity Unit motion to limit cross examination

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Published by: Rickey Stokes on Feb 27, 2012
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02/27/2012

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IN THE DISTRICT COURT OF THE UNITED STATESFOR THE MIDDLE DISTRICT OF ALABAMANORTHERN DIVISION___________________________________)UNITED STATES OF AMERICA ))v. ) CR. NO. 2:10cr186 MHT)MILTON E. MCGREGOR, )THOMAS E. COKER, )LARRY P. MEANS, )JAMES E. PREUITT, )HARRI ANNE H. SMITTH, and )JARRELL W. WALKER, JR., ))Defendants. )___________________________________ )
UNITED STATES’ MOTION TO LIMIT THESCOPE OF DEFENDANTS’ RE-CROSS EXAMINATIONS
The United States, by and through its undersigned counsel, submits this memorandum of law in support of its motion to limit the re-cross examinations of defendants in response to thegovernment’s re-direct examination and co-defendants’ cross-examinations. By restricting thescope of re-cross examinations to whatever testimony had been proffered by the government onre-direct or a co-defendant on cross, and by disallowing the defense to effectively revisit all priortestimony, the Court will focus the trial to the benefit of the jury, mitigate any prejudice to thegovernment’s case, reduce the amount of confusion during trial, and limit the length of trial – allthrough the elimination of needless and wasteful repetition.District courts “exercise reasonable control over the mode and order of interrogatingwitnesses and presenting evidence so as to (1) make the interrogation and presentation effectivefor the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protectwitnesses from harassment or undue embarrassment.” F
ED
.
 
R.
 
E
VID
. 611(a). For those reasons,
Case 2:10-cr-00186-MHT-WC Document 2292 Filed 02/12/12 Page 1 of 8
 
2a court exercises broad discretion over the scope of cross-examination with the authority to limitthe examination when appropriate. United States v. Ndiaye, 434 F.3d 1270, 1287 (11th Cir.2006) (“A district court may limit the scope of cross-examination when appropriate.”); UnitedStates v. Carter, 760 F.2d 1568, 1581 (11th Cir. 1985) (“Limitations on cross-examination areleft to the sound discretion of the district court and as long as the restriction does not interferewith the defendant’s right of confrontation, such limitations are permissible.”); United States v.Hawkins, 661 F.2d 436, 444 (5th Cir. 1981) (“A trial court, based upon its sound discretion, maylimit the scope and extent of cross-examination, and its decision will not be disturbed on reviewunless an abuse of discretion is present.”).Generally, the scope of cross-examination “should be limited to the subject matter of thedirect examination and matters affecting the credibility of the witnesses.” F
ED
.
 
R.
 
E
VID
. 611(b).A court, however, may broaden the scope of cross-examination, id., or, conversely, “imposereasonable limits on . . . cross-examination based on concerns about, among other things,harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that isrepetitive or only marginally relevant,” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); seealso United States v. Akinrinade, 61 F.3d 1279, 1285 (7th Cir. 1995) (“The district court’sdiscretion in controlling the extent of cross-examination is broad. For cross-examination has nonatural limits, and the trial judge must therefore exercise judgment in deciding when the point of diminishing returns has been reached, or passed – a judgment that will depend on the particularsof each case, and on such unreviewable imponderables as the judge’s assessment of the jury’scomprehension and attention span.” (quoting United States v. Herrera-Medina, 853 F.2d 564,566 (7th Cir. 1988)). Therefore, should the cross-examination devolve into repetition or threaten
Case 2:10-cr-00186-MHT-WC Document 2292 Filed 02/12/12 Page 2 of 8
 
3the integrity or efficacy of the proceedings, the court, in its discretion, can narrow orcircumscribe the cross-examination. See United States v. Jorgenson, 451 F.2d 516, 520 n.4 (10thCir. 1971) (“‘The court may always exercise reasonable discretion in determining when a subjecthas been exhausted and whether continued cross-examination is merely repetition.’” (quotingUnited States v. Morabette, 119 F.2d 986, 988 (7th Cir. 1941)). Certainly, the same is true of re-cross examinations.In this case, defense counsel threaten to abuse the purpose and scope of re-crossexamination by conducting re-cross examination without limits or restraint. To be sure, defensecounsel has the right to re-cross examine witnesses in response to the scope of the government’sre-direct examination and cross-examination of other defendants. However, proper limitationsmust be imposed to ensure that defense counsel do not use each and every opportunity to re-crossexamine a witness as a means to repeat and reiterate testimony that already has been given andreceived, merely for purposes of amplifying that testimony and overwhelming the jury with thedefense’s versions of events. To permit defense counsel to repeat their questions and elicit thesame testimony enables the defense to recapitulate their side of the case
ad infinitum,
at theexpense of the Court’s resources, the jury’s time, and unfair prejudice to the government.An example of this impermissible repetition occurred during the testimony of the veryfirst witness in this trial, Montgomery Feld. During an extensive cross examination, Mr. Segallquestioned Mr. Feld on a wide range of topics. See Realtime Tr. February 2, 2012 at 49-102.More specifically, two topics covered in Mr. Segall’s initial examination of Mr. Feld were offersof outside employment to LRS employees and the drafting of projects sponsored by members of the Alabama Legislative Council. After Mr. Segall’s initial coverage of these topics, Mr. Feld
Case 2:10-cr-00186-MHT-WC Document 2292 Filed 02/12/12 Page 3 of 8

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