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Name: United States v. Wilmore
Case #: 03-10297
Court: US Court of Appeals
District 9 Cir
Opinion Date: 08/25/2004

A defendant’s right to confront his accuser under the Sixth Amendment was violated where the witness asserted her Fifth Amendment privilege and the trial court limited cross-examination about her grand jury testimony. Defendant’s wife was one of the principle witnesses against him at his trial for being a felon in possession of a firearm, and at the grand jury proceedings she testified that the defendant possessed both a jacket and a gun recovered by police. Before trial, she disavowed her grand jury testimony, and at trial, she denied having seen defendant with a gun. The prosecution impeached her with her grand jury testimony. She was appointed counsel and, outside the presence of the jury, asserted her Fifth Amendment right against self-incrimination. The trial court permitted limited cross-examination but warned the defense not to ask questions that would result in an invocation of her Fifth Amendment privilege. The reviewing court held that, under Crawford v. Washington (2004) 124 S.Ct. 1354, this denial of the right to cross-examine a witness deprived defendant of his Sixth Amendment right to confront witnesses. Given the witness’s invocation of her Fifth Amendment rights, the trial court should have stricken her direct testimony. Since the grand jury testimony was the only evidence that defendant possessed a gun, the error required reversal.