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USCA1 Opinion
December 23, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1731
KENT A. SIEGFRIEDT,
Petitioner, Appellant,
v.
MICHAEL FAIR,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Selya, Cyr and Boudin, Circuit Judges.
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Brownlow M. Speer, with whom Committee for Public Counsel
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Services was on brief, for appellant.
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Pamela L. Hunt, Assistant Attorney General, with whom Scott
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Harshbarger, Attorney General, was on brief, for appellee.
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SELYA, Circuit Judge. Petitioner-appellant Kent A.
SELYA, Circuit Judge.
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Siegfriedt seeks appellate review of an order of the United
States District Court for the District of Massachusetts
dismissing his application for habeas relief. See 28 U.S.C.
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2241-2254 (1988). The issue presented on appeal is nominal in
the classic sense. We must determine whether the admission at
trial of an unavailable witness's tape-recorded testimony,
originally adduced at a probable cause hearing, violated the
defendant's constitutional rights because the witness testified
under a pseudonym. Finding no constitutional shortfall, we
affirm.
I.
I.
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Background
Background
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Because the Massachusetts Supreme Judicial Court (SJC)
has painstakingly traced the lay of the land, see Commonwealth v.
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Siegfriedt, 402 Mass. 424, 522 N.E.2d 970 (1988), it would be
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pleonastic to recount the facts in great detail. We provide
instead only the bare minimum necessary to place the petitioner's
appeal into workable perspective.
Siegfriedt was charged with arson. At the probable
cause hearing, an individual known as Christopher Martel
maintained under oath that Siegfriedt forewarned him of the fire
and accurately predicted its approximate time of outbreak. After
Martel withstood cross-examination at the hands of petitioner's
counsel, the court found probable guilt.
By the time petitioner's case was reached for trial,
2
Martel's whereabouts were a mystery. A diligent search failed to
locate him but revealed a previously unknown fact: although the
witness had gone by the name of Christopher Martel, his true name
was Albert Ciccarelli, Jr. The presiding judge nevertheless
admitted Martel/Ciccarelli's tape-recorded testimony, originally
delivered at the probable cause hearing, into evidence at
petitioner's trial.1 Thereafter, the judge allowed petitioner
to impeach the declarant's credibility. To that end, petitioner
called two witnesses, including Martel/Ciccarelli's brother, who
testified anent the declarant's parlous reputation for veracity.
The jury found Siegfriedt guilty. The SJC affirmed the
conviction. Siegfriedt then sought habeas redress. The federal
district court spurned his application but issued a certificate
of probable cause under 28 U.S.C. 2253. This appeal ensued.
II.
II.
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Standard of Review
Standard of Review
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Petitioner contends here, as he contended
unsuccessfully below, that his constitutional rights were
abridged when the state court admitted Martel/Ciccarelli's prior
recorded testimony into evidence. This contention evokes a mixed
question of law and fact. Under the presently prevailing
standard, "mixed" constitutional questions are subject to plenary
review in federal habeas proceedings. See Chakouian v. Moran,
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975 F.2d 931, 934 (1st Cir. 1992); see also Miranda v. Cooper,
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1Siegfriedt's first trial resulted in a hung jury. We refer
here, and below, only to the second trial, at which petitioner
was found guilty.
3
967 F.2d 392, 401 (10th Cir.) (affording de novo review to
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district court's decision concerning adequacy of cross-
examination in state criminal case), cert. denied, 113 S. Ct. 347
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(1992). Hence, we scrutinize the denial of petitioner's
application for habeas corpus without special deference either to
the district court or to the state courts on the central issue
raised by this appeal. Withal, we remain "bound by the [state]
court's interpretation of [its] evidentiary law" so long as the
record shows "a sufficient factual predicate rationally to
support" that court's categorization of the contested evidentiary
proffer. Puleio v. Vose, 830 F.2d 1197, 1204, 1207 (1st Cir.
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1987) (citations and internal quotation marks omitted), cert.
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denied, 485 U.S. 990 (1988).
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III.
III.
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Analysis
Analysis
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A
A
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The Confrontation Clause ensures a criminal defendant
the right "to be confronted with the witnesses against him."
U.S. Const. amend. VI. This guarantee applies to the States
through the Fourteenth Amendment. See Pointer v. Texas, 380 U.S.
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400, 403 (1965). While the guarantee restricts the circumstances
under which a court may admit the statements of unavailable
declarants into evidence, the restriction is not an absolute bar
since the keen "societal interest in accurate factfinding"
necessarily tempers the sweep of the Confrontation Clause.
Bourjaily v. United States, 483 U.S. 171, 182 (1987). Thus,
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4
hearsay evidence from an unavailable declarant may survive
exclusion if the proponent can demonstrate that the proffered
evidence "bears adequate indicia of reliability." Ohio v.
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Roberts, 448 U.S. 56, 66 (1980) (internal quotation marks
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omitted). Such indicia can be established either by showing that
the evidence "falls within a firmly rooted hearsay exception" or
by showing that the evidence possesses "particularized guarantees
of trustworthiness." Id.; accord Idaho v. Wright, 110 S. Ct.
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3139, 3147 (1990) (collecting cases).
Former testimony in the same case generally comes
within a recognized hearsay exception if the declarant is
unavailable and the party resisting the proffer has had a
"complete and adequate opportunity to cross-examine." California
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v. Green, 399 U.S. 149, 165-66 (1970) (quoting Pointer, 380 U.S.
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at 407); see also Mancusi v. Stubbs, 408 U.S. 204, 216 (1972);
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United States v. Zannino, 895 F.2d 1, 5-6 (1st Cir.), cert.
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denied, 494 U.S. 1082 (1990); cf. Fed. R. Evid. 804(b)(1). Here,
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the parties agree that the tape recording was generated in the
same case and comprised the prior testimony of a declarant who
was genuinely unavailable at the time of trial.2 They disagree,
however, about the adequacy of the opportunity for cross-
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2The Court recently cast doubt upon the admissibility of
prior testimony in criminal cases absent a concrete showing of
the declarant's unavailability. See White v. Illinois, 112 S.
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Ct. 736, 743 (1992) (suggesting, in dictum, that a showing of
declarant's unavailability might be necessary to trigger the
prior testimony exception to the hearsay rule because of the
constitutional "preference for live testimony"). Given the
witness's acknowledged unavailability in this case, we need not
ponder the import of the White dictum.
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5
examination.
The petitioner claims that, because Martel/Ciccarelli
testified under an adopted name at the probable cause hearing,
the opportunity for cross-examination was inadequate as a matter
of law. This claim derives from the Supreme Court's opinion in
Smith v. Illinois, 390 U.S. 129 (1968). There, an informant in a
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drug-trafficking case testified at trial under an assumed name.
When defense counsel attempted to ascertain the witness's true
name and address, the trial judge sustained the prosecutor's
objections. The Supreme Court vacated the ensuing conviction.
In the Court's view, the trial judge's ruling impermissibly
interfered with the defendant's right to confrontation because it
foreclosed "the opportunity to place the witness in his proper
setting and put . . . his credibility to a test." Id. at 132
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(citation and quotation marks omitted).
Petitioner interprets Smith as spawning a bright-line
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rule a rule which mandates that, whatever nuances may be
supplied by the surrounding circumstances, testimony given under
an apocryphal name can never be admitted over objection in a
criminal trial. But, this interpretation effectively ignores the
Court's instruction that society's interest in accurate
factfinding is to be regarded as an important factor in
Confrontation Clause inquiries. See Bourjaily, 483 U.S. at 182.
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Accordingly, we decline to read Smith in the wooden fashion
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petitioner suggests.
Even before Bourjaily we held that Smith's guiding
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6
principle, insofar as it concerns a witness's current address,
"is not, like a rule of plane geometry, absolute." McGrath v.
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Vinzant, 528 F.2d 681, 684 (1st Cir.), cert. dismissed, 426 U.S.
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902 (1976). In our estimation, the Smith principle, insofar as
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it concerns a witness's true name, is likewise not absolute.
Accord United States v. Rangel, 534 F.2d 147, 148 (9th Cir.),
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cert. denied, 429 U.S. 854 (1976) (Smith "does not establish a
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rigid rule of disclosure [of a witness's name], but rather
discusses disclosure against a background of factors") (citations
and internal quotation marks omitted).
The long and short of it is that the Smith standard has
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a core purpose: to prevent a criminal conviction based on the
testimony of a witness who remains "a mere shadow" in the
defendant's mind. McGrath, 528 F.2d at 685. When that core
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purpose is not implicated, we see no reason for reflexively
excluding otherwise admissible testimony. Certainly, Smith
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itself gives no indication that its guiding principle extends
beyond the confines of its articulated rationale into such far-
flung galaxies. See Smith, 390 U.S. at 132 (explaining that the
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defendant must be accorded a fair opportunity to place an adverse
witness in the witness's proper setting and to put his testimony
and credibility to a meaningful test).
Against this backdrop, it is readily apparent that all
pseudonyms are not equal in the eyes of the Confrontation Clause.
Rather, courts must gauge the pull of Smith in any given case by
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the degree to which its rationale applies. Sometimes, as in
7
Smith itself, a witness's use of a fictitious name will transform
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him into a wraith and thereby thwart the efficacy of cross-
examination. Other times, the use of a fictitious name will be
no more than a mere curiosity, possessing no constitutional
significance.3
B
B
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The case at hand is at a substantial remove from Smith.
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In Smith, unlike here, the witness adopted a pseudonym for the
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sole purpose of testifying. In Smith, unlike here, the defendant
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did not know the witness's true identity before the jury returned
its verdict. In Smith, unlike here, the witness's anonymity was
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the direct result of government contrivance. We find these
distinctions more than sufficient to propel this case out of
Smith's precedential orbit.
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1. In this situation, the name under which the
1.
witness testified (Christopher Martel) was not some passing
cognominal fancy assumed solely for the purpose of the judicial
proceeding and bearing no relation to the witness's life outside
the courthouse. To the contrary, this was a name the witness had
clasped to his bosom and made his own. He held himself out to
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3Petitioner's insistence upon a bright-line rule, slavishly
followed, could produce a bizarre anomaly. One can easily
envision circumstances in which a witness testifying under his
birth name might present a much more spectral figure than if he
or she testified under an adopted name. For example, the
appellations Issur Danielovitch Demsky, Betty Joan Perske, and
Marion Michael Morrison will probably be of less assistance in
placing the affected individuals in their proper settings than
their screen names (Kirk Douglas, Lauren Bacall, and John Wayne,
respectively).
8
the world as Christopher Martel; he was identifiable in
Siegfriedt's community by that name; and he was known by that
name at his own address an address which he accurately
recounted in the course of his testimony. Thus,
Martel/Ciccarelli was not some incorporeal apparition as was
his ostensible counterpart in Smith but a flesh-and-blood human
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being easily placed within his relevant context.
2. At the probable cause hearing, petitioner was able
2.
effectively to question the declarant qua Martel. Moreover,
because petitioner discovered the witness's true name prior to
trial, he was able effectively to investigate and impeach the
declarant qua Ciccarelli. He took full advantage of both these
opportunities, in the first instance through lengthy cross-
examination and in the latter instance by calling witnesses to
debunk the declarant's reputation for truthfulness. The goals of
Smith's guiding principle placing the witness in his proper
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setting and putting his credibility to a fair test were
satisfied. See generally United States v. McLaughlin, 957 F.2d
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12, 17 (1st Cir. 1992) (explaining that the main purposes of
cross-examination are to impeach credibility and to expose a
witness's biases and possible motives for testifying) (collecting
cases); see also Clark v. Ricketts, 958 F.2d 851, 855 (9th Cir.
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1991) (discerning no Confrontation Clause violation despite
informant's refusal to reveal his name while testifying;
defendant knew the witness's name before trial and, therefore,
had an opportunity to conduct both an out-of-court investigation
9
and an in-court examination), cert. denied, 101 S. Ct. 796
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(1992).
3. In Smith, the defense failed to learn the witness's
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true name and address because government actors the prosecutor
and the judge combined to block its access to the witness,
thereby restricting the scope of cross-examination. Here,
however, there is no suggestion that the State knew of
Martel/Ciccarelli's hidden identity at the time of the
preliminary hearing or that the presiding judge sustained
objections or otherwise imposed any Smith-related scope
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restriction on cross-examination. That the cross-examination
conducted by petitioner's attorney failed to reveal
Martel/Ciccarelli's birth name was not in any way attributable to
official conduct.
We believe that this distinction is significant because
"the Confrontation Clause guarantees an opportunity for effective
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cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish."
Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam). This
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precept applies even when the witness himself is unequivocally to
blame for the relative ineffectiveness of the cross-examination.
See id. at 19 (discussing a situation where a witness's memory
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lapse prevented him from answering potentially discrediting
questions). We do not think this precept diminishes in vitality
simply because the defense's opportunity to cross-examine the
declarant arises at a preliminary hearing. See, e.g., Roberts,
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10
448 U.S. at 73 n.12 (indicating that, under such circumstances,
"no inquiry into 'effectiveness' is [ordinarily] required").4
Because petitioner questions the effectiveness of the cross-
examination rather than an undue, State-imposed limitation on its
scope, he is hard pressed to contend that Smith requires a
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reversal here.
4. When this case is judged by the totality-of-the-
4.
circumstances test that proper application of the Smith principle
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requires, it readily passes constitutional muster.5 We hold,
therefore, that Martel/Ciccarelli's use of an alias at the
probable cause hearing did not, without more, render that
testimony inadmissible at a later proceeding in the same case.
C
C
Once the Smith hurdle is cleared, this case
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unquestionably meets the Roberts criteria. Apart from
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Martel/Ciccarelli's unique brand of name-dropping, there is no
basis for any suggestion that the defense's opportunity for
cross-examination was incomplete or inadequate. The witness
testified under oath, before a judge, and in the same case. A
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4The Roberts Court indicated that an exception might lie for
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extraordinary cases in which defense counsel provided ineffective
assistance at the earlier hearing. See Roberts, 448 U.S. at 73
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n.12, In the case at hand, however, appellant has advanced no
such claim.
5Although we deem the three main points of divergence
between this case and Smith, see text supra, to be important, we
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emphasize that Smith must be applied in a case-specific fashion,
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having in mind the entire array of circumstances that attend the
testimonial proffer in any given situation. We do not,
therefore, assign decretory significance to any single
distinguishing factor.
11
verbatim record of the proceedings was contemporaneously made.
The defendant was represented by counsel. His attorney was
permitted to cross-examine without undue restriction. Under
these circumstances, we find that the state court appropriately
classified the tape recording within the hearsay exception for
prior testimony of an unavailable declarant. See Green, 399 U.S.
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at 165-66.
IV.
IV.
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Conclusion
Conclusion
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We need go no further. With Juliet we ask "What's in a
name?" and with her we conclude "[t]hat which we call a rose by
any other name would smell as sweet." W. Shakespeare, Romeo and
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Juliet, Act II, Sc. ii. Though the State's witness had one legal
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name, he was not made a phantom to the defense merely because he
testified at the preliminary hearing under a name he had assumed
some time previously. The complete and adequate opportunity for
cross-examination which prevailed at the first hearing, the
defense's subsequent opportunity, once armed with knowledge of
the witness's birth name, to put his credibility to the test at
trial, and the utter absence of State action limiting the scope
of the defense's cross-questioning, combine to bring the earlier
testimony well within a firmly rooted hearsay exception.6 The
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6We note in passing that, even apart from whether this
evidence fell within a firmly rooted hearsay exception, the
Confrontation Clause would be satisfied so long as the totality
of the circumstances evinced the requisite guarantees of
trustworthiness. See Wright, 110 S. Ct. at 3148 (describing
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12
Confrontation Clause was satisfied in petitioner's case. See
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generally Maryland
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v. Craig, 110 S. Ct. 3157, 3163 (1990) (discussing the need for
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"rigorous testing [of a witness] in the context of an adversary
proceeding" in order to satisfy the imperatives of the Sixth
Amendment).
Affirmed.
Affirmed.
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test; collecting cases). Although we do not decide the case on
this ground, we remark the obvious: a strong argument for
admissibility can be made on this basis, particularly since
Martel/Ciccarelli appeared at the probable cause hearing without
the protection of immunity and spoke about matters within his
personal knowledge. These latter two points are important
considerations in a trustworthiness inquiry. See Zannino, 895
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F.2d at 7.
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Document Info
Docket Number： 92-1731
Filed Date： 12/23/1992
Precedential Status： Precedential
Modified Date： 9/21/2015