The opinion of the court was delivered by: Judge Rambo
This matter comes before the court on remand from the United States Court of Appeals for the Third Circuit. The Third Circuit Court's judgment, received by this court on November 24, 2010, directed the court to deny in part Petitioner Daniel Saranchak's petition for writ of habeas corpus with respect to Claims I, II, and III,*fn1 and consider the remaining eight issues in the petition, including issues related to the penalty phase of the state court proceedings. (See Doc. 33-2.) As such, the petition is ripe for disposition. For the reasons that follow, the petition will be denied.
Saranchak is challenging his 1994 conviction for first degree murder and related charges in the Court of Common Pleas for Schuylkill County, Pennsylvania. The facts surrounding the events which led to his conviction, as summarized by the Pennsylvania Supreme Court in Commonwealth v. Saranchak, 866 A.2d 292, 296 (Pa. 2005) ("Saranchak-5"), are as follows:
On October 15, 1993, Daniel Saranchak . . . was drinking with a friend, Roy Miles (Miles), at Mickey Courtney's Sportsman Bar (Courtney's Bar) in Pottsville, Pennsylvania. [Saranchak] told Miles that he knew where they could acquire some money, but that they might have to kill someone to obtain it. Thereafter, the two men left the bar and went to [Saranchak's] brother's house. [Saranchak] obtained a .22 caliber rifle from his brother, feigning that he and Miles were going hunting. After leaving his brother's house, [Saranchak] and Miles went to a second bar and purchased two quarts of beer before driving to a residence in Cumbola, Pennsylvania (the Residence) shared by [Saranchak's] 87-year-old grandmother (Grandmother) and his uncle, Edmund Saranchak (Uncle).
Before entering the Residence, [Saranchak] stated that he was going to get some money from Grandmother. [Saranchak] and Miles entered the Residence through an unlocked basement door. Once inside, [Saranchak] walked directly to the sofa in the basement and shot Uncle in the head killing him almost instantly. [Saranchak] rolled Uncle over, while Miles rifled through the victim's pockets stealing his money. [Saranchak] and Miles then went to Grandmother's second floor bedroom. [Saranchak] asked Miles to shoot Grandmother, but he refused. Upon awakening, Grandmother asked, "Danny is that you?" [Saranchak] then fatally shot Grandmother once in the head. [Saranchak] and Miles proceeded to lower the bedroom's blinds and search Grandmother's room for money. They eventually stole some money from Grandmother's purse.*fn2
Uncle had a breakfast meeting scheduled with his employer for the next morning. When Uncle failed to appear, his employer went to his home and spoke with a neighbor, who indicated he had not seen either victim since the previous day. Employer and the neighbor decided to enter the home, and upon doing so discovered Uncle's body. They called the police, who responded and found Grandmother's body. After securing the crime scene, police canvassed the neighborhood and questioned neighbors. Based upon the information obtained, police interviewed [Saranchak's] mother who, among other things, told the police that [Saranchak] had "gone shooting" the night before. She also informed police where [Saranchak] was residing. Based upon mother's information, the police obtained a search warrant for [Saranchak's] apartment and seized a .22 caliber rifle.*fn3
On October 16, 1993, [Saranchak] was taken into custody, transported to a local police station and twice advised of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He confessed to killing Uncle, but denied killing Grandmother.*fn4 Id.
On September 6, 1994, Saranchak pleaded guilty to two counts of general homicide. After a degree of guilt hearing conducted without a jury, the trial court convicted Saranchak on two counts of first-degree murder, see 18 Pa. Cons. Stat. § 2502(a), and all related charges. The Commonwealth sought the death penalty, and a jury was selected to determine the appropriate sentence. After the parties selected a jury on September 12, 1994, the penalty phase commenced on September 15, 1994. On September 16, 1994, the jury sentenced Saranchak to death on each conviction of first-degree murder. In doing so, the jury found two aggravating circumstances on each count of murder: (1) that the killing was committed during the perpetration of a felony, and (2) that Saranchak was convicted of another murder committed either before or at the time of the offense. The jury found no mitigating circumstances.
Saranchak filed a direct appeal to the Pennsylvania Supreme Court, which affirmed his conviction in an opinion dated Apri1 24, 1996. Commonwealth v. Saranchak, 675 A.2d 268 (Pa. 1996) ("Saranchak-I"). Saranchak's subsequent petition for writ of certiorari was denied by the United States Supreme Court on January 6, 1997. Saranchak v. Pennsylvania, 519 U.S. 1061 (1997). He also mounted several unsuccessful collateral attacks of his conviction in the state courts pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. §§ 9541 et seq.*fn5 Saranchak filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 16, 2005. (Doc. 7.) The petition raises eleven issues. By memorandum and order dated January 4, 2008, the court granted the habeas petition as to the first three claims. (Doc. 29.) Respondents appealed to the United States Court of Appeals for the Third Circuit, which reversed the granting of relief on the first three claims and remanded the matter for consideration of the merits of the remaining eight claims. Those eight claims are as follows:
IV. Petitioner was denied his constitutional rights to cross examination at both the degree of guilt and sentencing hearings when, during cross examination, his alleged accomplice refused to answer relevant questions, and counsel was ineffective for failing to object and for failing to move to strike the testimony.
V. Mr. Saranchak was denied effective assistance of counsel at capital sentencing.
VI. The trial court unconstitutionally deprived Petitioner of the use of a mental health expert; prior counsel were ineffective for failing to object and litigate this claim.
VII. The trial court erred in failing to instruct the jury on the mitigating circumstance of extreme mental or emotional disturbance; defense counsel was ineffective for failing to object or request an appropriate instruction, and for failing to raise this claim on appeal.
VIII. Petitioner was denied his constitutional rights when the trial court improperly excused prospective jurors based upon their views concerning the death penalty.
IX. The trial court's instructions on the nature of aggravating and mitigating circumstances unconstitutionally prevented the jury from considering and giving full effect to relevant mitigating evidence and all prior counsel were ineffective for failing to object to the instructions or otherwise raise this issue.
X. Petitioner was denied his constitutional rights to due process, to a fair and impartial penalty phase, to the effective assistance of counsel, and against cruel and unusual punishment, when the prosecutor engaged in improper argument, where defense counsel failed to object at trial or raise the issue on appeal, and where the court took no action to cure the error.
XI. Petitioner is entitled to relief from his conviction and sentence because of the cumulative effect of the errors described in this petition and found in prior proceedings.
(Doc. 7 at 4-5.) The court will discuss these issues in turn after setting forth the standards of review.
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), went into effect and amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254. A habeas corpus petition pursuant to § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). "[I]t is not the province of a federal habeas court to re-examine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Rather, federal habeas review is restricted to claims based "on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 68.
A. Exhaustion and Procedural Default
Habeas corpus relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). In addition, the doctrine of procedural default bars federal habeas relief when a state prisoner has defaulted on his federal claims in state court pursuant to an independent and adequate state procedural rule. Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996).
The court previously addressed exhaustion and procedural default in the memorandum and order dated January 4, 2008. (Doc. 29 at 8-11.) In that memorandum, the court determined that Saranchak had satisfied the exhaustion requirement and waived no claims due to procedural default. (Id. at 9, 11.) Thus, the court need not address exhaustion and procedural default here with respect to the remaining eight claims.
Once a court has determined that the exhaustion requirement is met, and therefore the issues presented in a habeas petition on the merits is warranted, the scope of that review is set forth in 28 U.S.C. § 2254(d). That section states, in relevant part, that exhausted claims that have been adjudicated on the merits by the state courts are subject to review under the standard of whether they are "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). AEDPA places the burden on the petitioner to make this showing. Williams v. Taylor, 529 U.S. 362 (2000).
In a recently issued opinion, the Third Circuit Court set forth the following description of the framework for analysis required under § 2254(d):
Consistent with Supreme Court precedent, we read § 2254(d) to require three distinct legal inquiries. See, e.g., Harrington v. Richter, - U.S. -, 131 S. Ct. 770, 785, 178 L.Ed. 2d 624 (2011). The first is whether the state court decision was "contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States." § 2254(d)(1). The second is whether the state court decision "involved an unreasonable application of" such law. § 2254(d)(1). And the third is whether the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented" to the state court. § 2254(d)(2). The test for § 2254(d)(1)'s "'unreasonable application of" clause is as follows: "[a]n 'unreasonable application' occurs when a state court 'identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of petitioner's case." Rompilla v. Beard, 545 U.S. 374, 380, 125 S. Ct. 2456, 162 L.Ed. 2d 360 (2005) (quoting Wiggins v. Smith, 539 U.S. 510, 519, 520, 123 S. Ct. 2527, 156 L.Ed. 2d 471 (2003)). For purposes of § 2254(d)(1), "[i]t is not enough that a federal habeas court, in its independent review of the legal question, is left with a firm conviction that the state court was erroneous." Lockyer v. Andrade, 538 U.S. 63, 75, 123 S. Ct. 1166, 155 L.Ed. 2d 144 (2003) (internal quotations omitted). "Under § 2254(d)(1)'s 'unreasonable application' clause . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 75-76, 123 S. Ct. 1166 (quoting Williams v. Taylor, 529 U.S. 362, 411, 120 S. Ct. 1495, 146 L.Ed. 2d 389 (2000)). Rather, "[t]he state court's application of clearly established law must be objectively unreasonable" before a federal court may grant the writ. Andrade, 538 U.S. at 75, 123 S. Ct. 1166.
The test for § 2254(d)(2)'s "unreasonable determination of facts" clause is whether the petitioner has demonstrated by "clear and convincing evidence," § 2254(e)(1), that the state court's determination of the facts was unreasonable in light of the record. See Rice v. Collins, 546 U.S. 333, 338-339, 126 S. Ct. 969, 163 L.Ed. 2d 824 (2006) ("State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by 'clear and convincing evidence.'") (quoting § 2254(e)(1)) (citing Miller-El v. Dretke, 545 U.S. 231, 240 125 S. Ct. 2317, 162 L.Ed. 2d 196 (2005)); see also Simmons v. Beard, 590 F.3d 223, 231 (3d. Cir. 2009) ("Under the § 2254 standard, a district court is bound to presume that the state court's factual findings are correct, with the burden on the petitioner to rebut those findings by clear and convincing evidence."). Importantly, the evidence against which a federal court measures the reasonableness of the state court's factual findings is the record evidence at the time of the state court's adjudication. Cullen v. Pinholster, - U.S. -, - -- -, 131 S. Ct. 1388, 1401-03, 179 L.Ed. 2d 557 (2011).
Rountree v. Balicki, 640 F.3d 530, 537-38 (3d Cir. 2011). See also Waddington v. Sarausad, 555 U.S. 179, 190 (2009) (where it is the state court's application of governing federal law that is challenged, "the state court's decision must be shown to be not only erroneous, but objectively unreasonable.") (internal citations and quotations omitted); Schriro v. Landrigan, 550 U.S. 465, 473 (2007) ("The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold"). Like the "unreasonable application" prong of paragraph (1), a factual determination should be adjudged "unreasonable" under paragraph (2) only if the court finds that a rational jurist could not reach the same finding on the basis of the evidence in the record. 28 U.S.C. § 2254(d)(2); Porter v. Horn, 276 F.Supp. 2d 278, 296 (E.D. Pa. 2003); see also Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v. Virginia, 443 U.S. 307, 316 (1979). Only when the finding lacks evidentiary support in the state court record, or is plainly controverted by the evidence, should the federal habeas court overturn a state court's factual determination. Porter, 276 F.Supp. 2d at 296; see also Williams, 529 U.S. at 408-09.
Relief can only be granted if Saranchak demonstrates that the state court's decision satisfies one of the three tests set forth above. The merits of the remaining eight claims presented by Saranchak will now be analyzed in accordance with these standards.
Saranchak's remaining eight claims involve state court guilt phase and penalty phase proceedings. Seven of these issues assert ineffective assistance of counsel. For clarity and for purposes of discussion, the court will address Saranchak's ineffective assistance claims, as well as his other claim, in chronological order, first setting forth the standard for ineffective assistance of counsel and then addressing the merits of the claims. Any other relevant standards will be presented at the time the particular issue is addressed.
A. Ineffective Assistance of Counsel
The Sixth Amendment guarantees an accused in a criminal prosecution
the right to assistance of counsel for his defense. The applicable
federal precedent for
ineffective assistance claims is the well-settled two-prong test
established by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). See also Wiggins v. Smith, 539 U.S.
at 510, 521 (2003) (setting out the Strickland test); Williams, 529
U.S. at 390-91 (same). The first prong of the Strickland test requires
a defendant to establish that his attorney's representation fell below
an objective standard of reasonableness by committing errors so
serious that he or she was not functioning as the "counsel" guaranteed
by the Sixth Amendment. Strickland, 466 U.S. at 688; Wiggins, 539 U.S.
at 521. It follows that when a petitioner claims that his counsel
failed to raise a claim that the court determines to be meritless,
habeas relief under Strickland is not available. See Strickland, 466
U.S.at 691 (failure to pursue "fruitless" claims "may not be
challenged as unreasonable."); see also United States v. Saunders, 165
F.3d 248, 253 (3d Cir. 1999) (stating counsel cannot be deemed
ineffective for failing to raise a meritless claim). A court must
indulge a "strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance;" that is, the
petitioner must overcome the presumption that, under the totality of
the circumstances, the challenged action "might be considered sound
trial strategy." Id. at 688-89, 690-92. The question is not whether
counsel did not err, but whether counsel exercised the customary skill
and knowledge that
normally prevailed at the time and place of counsel's conduct. Id. To
that end, a court must conduct an objective review of counsel's
performance measured for reasonableness under prevailing professional
norms, including a context-dependent consideration of the challenged
conduct as seen from counsel's perspective at the time.*fn6
Id. at 686; Wiggins, 539 U.S. at 522-27; see also Bobby v.
Van Hook, - U.S. -, 130 S. Ct. 13, 16-20 (2009).
The second prong of Strickland requires a petitioner to show that "the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. To prove prejudice, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. This standard "is not a stringent one;" it is less demanding than the preponderance standard. Baker v. Barbo, 177 F.3d 149, 154 (3d Cir. 1999). Further, a reviewing court need not determine whether counsel's performance was deficient before considering whether the petitioner suffered any prejudice as a result of the alleged deficiency. Strickland, 466 U.S. at 697. If it is easier to dispose of an ineffectiveness claim for lack of requisite prejudice, that course should be followed. Id.
In addition, the reviewing court must evaluate counsel's performance in light of the totality of the evidence. Strickland, 466 U.S. at 695-96; see also Jacobs v. Horn, 395 F.3d 92, 106-07 (3d Cir. 2005). It is the petitioner's burden to establish both deficient performance and resulting prejudice in order to state an ineffective assistance of counsel claim. Strickland, 466 U.S. at 697; see also Jacobs, 395 F.3d at 102.
At the time the state courts reviewed the claims in which it was asserted that Saranchak's counsel was arguably ineffective, Strickland's familiar two-pronged test was the "clearly established federal law" applicable to ineffective assistance of counsel claims. Under Pennsylvania state jurisprudence, a three-prong test is applied to ineffective assistance of counsel claims, but is, in substance, identical to the Strickland test. See, e.g., Commonwealth v. Pierce, 527 A.2d 973, 975-77 (Pa. 1987). The Third Circuit Court of Appeals has held that Pennsylvania's test for assessing ineffective assistance of counsel claims is not contrary to Strickland. Jacobs, 395 F.3d at 107 n.9; Werts, 228 F.3d at 204. Thus, under § 2254(d)(1), the relevant inquiry in assessing ineffectiveness claims that have been adjudicated on the merits is whether the state court's decision involved an unreasonable application of Strickland. Jacobs, 395 F.3d at 107 n.9; Werts, 228 F.3d at 204. Further, under § 2254(d)(2), the relevant inquiry is whether the state court made unreasonable factual determinations when deciding whether the petitioner received constitutionally effective counsel. Bond v. Beard, 539 F.3d 256, 279 (3d Cir. 2008).
Finally, Saranchak's claims of ineffective assistance of appellate counsel must be examined under the same Strickland standards cited above: 1) whether counsel's performance was unreasonable; and 2) whether counsel's unreasonable performance actually prejudiced the defense. Strickland, 466 U.S. at 687. If a court finds no merit in a claim of ineffective assistance by trial counsel, appellate counsel cannot be found ineffective for failing to raise those same meritless issues on appeal. See United States v. Cook, 45 F.3d 388, 392-93 (10th Cir. 1995) ("When a defendant alleges his appellate counsel rendered ineffective assistance by failing to raise an issue on appeal, we examine the merits of the omitted issue. If the omitted issue is without merit, counsel's failure to raise it does not constitute constitutionally ineffective assistance of counsel.") (citations and quotations omitted).
B. Claim IV - Failure to Object to and/or Move to Strike the Testimony of Accomplice Miles
Saranchak contends that he was denied the constitutional right to confrontation when his accomplice, Roy Miles, was permitted to invoke the Fifth Amendment on cross-examination when questioned about the source of a significant amount of money he was seen with after the killings. Saranchak further argues that his counsel was ineffective for failing to object to Miles' invocation and for not moving to strike the testimony altogether. For the reasons that follow, habeas relief on this claim will be denied.
The background of this claim is as follows. Throughout the proceedings before state and federal courts, Saranchak has denied that any specific intent to kill was based on a motive to rob or steal from his grandmother and/or uncle. (Doc. 18 at 63.) At the degree of guilt hearing, Saranchak's counsel asserted that any money taken from the house was done so by Miles, not Saranchak. As a result, Saranchak maintains that a "crucial aspect" of his defense was to challenge Miles' assertions that Saranchak had told him that "he knew where they could acquire some money, but that they might have to kill someone to obtain it."*fn7 Saranchak-5, 866 A.2d at 296.
At the degree of guilt hearing, on direct examination Miles indicated that he had pleaded guilty to third degree murder and related charges of robbery, theft, and criminal conspiracy, in connection with the killings. (Notes of Testimony, Degree of Guilt Hearing, 9/6/1994 ("Guilt NT") 61-62.) In addition, Miles stated that he had pled guilty to other, unrelated charges of strong arm robbery and possession. (Id. at 62.) He also asserted on direct that Saranchak told him on the night of the killings, "I know where we can get some [money] but we might have to shoot someone." (Id. at 63.) The Commonwealth then asked Miles a series of questions establishing that Saranchak had taken his uncle's wallet from the Saranchak house, and that he had attempted to open a safe while there. (Id. at 66-67.) Additionally, the Commonwealth and Miles had the following exchange:
[Commonwealth]: Again, Mr. Miles, my question was, the money that you had that weekend, other than the $20.00 you got from Mr. Saranchak, where did that money come from?
[Miles]: The money came from someone else and I never had any $50.00 bills but the two fifties that I had I got even before I met Danny. I cashed two fifties for two people that came in to the bar that Ray couldn't cash because he didn't think that he would have enough to make it throughout the night.
[Commonwealth]: So you cashed them in the bar previous to that? [Miles]: Yeah, before I even met Danny. [Commonwealth]: You didn't get any of that money that you had from the Saranchak house? [Miles]: No, I didn't. (Id. at 85-86) (emphasis added). On cross-examination, when Saranchak's counsel, Kent D. Watkins, Esquire, tried to follow up on that line of questioning, specifically on Miles' statement that the "money came from someone else" and not from the Saranchak house, Miles invoked the Fifth Amendment privilege. (Id. at 86-87.) The trial court permitted the invocation, and Attorney Watkins was permitted to ask only follow-up questions regarding the details of how Miles cashed the two fifties for people who had entered the bar. (Id. at 87-88.)
At the sentencing hearing before the jury, on direct examination Miles confirmed his guilty pleas to both the offenses related to the killings and the unrelated charges of possession, strong arm robbery, and retail theft. (Notes of Testimony, Sentencing Hearing, 9/15-16/1994 ("Sentencing NT") 65.) He testified again that Saranchak told him that he knew where to get some money, but that he might have to shoot someone for it. (Id. at 58.) Same as at the degree of guilt hearing, the Commonwealth then asked Miles a series of questions to establish that Saranchak had taken the wallet from his uncle, and had attempted to open a safe in the house. (Id. at 63-64.)
On cross-examination, Attorney Watkins again asked Miles for the source of the large amount of money he was seen with on the night of the killings, and Miles once again invoked his Fifth Amendment privilege. (Id. at 68.) Miles' counsel stated to the court, "I believe your Honor is familiar with the basis of his plea of the Fifth as to this particular issue which is the money and we would ask that that plea of the Fifth be considered as a blanket plea to any other questions on that issue, that particular issue." (Id. at 68-69.) The court agreed, and informed the jury that Miles would be permitted to claim the right against self incrimination with respect to the source of the money. (Id.) Subsequently, Miles further testified as to his recollection of the events of the night of the killings. (Id. at 70-77.)
As stated above, Saranchak argues that had he been permitted to cross-examine Miles about the source of the money he had on the night of the killings at the degree of guilt hearing, he would have been able to refute the Commonwealth's purported motive for the killings. He also would have been able to support his defense argument at the sentencing hearing contesting the existence of the aggravating circumstance of commission of a killing during the perpetration of a felony (robbery). In addition, he contends that counsel was ineffective for failing to move to strike the direct testimony of Miles.
The Fifth Amendment's self incrimination clause protects two distinct rights: first, a defendant's right not to take the witness stand at his own criminal trial and, second, the privilege of any witness, in any formal or informal governmental proceeding, not to answer questions when the answers might incriminate him. Roach v. Nat'l Transp. Safety Bd., 804 F.2d 1147, 1151 (10 Cir. 1986). See, e.g., United States v. Housing Found. of America, 176 F.2d 665, 666 (3d Cir. 1949).
As related to the second protection, the witness' privilege against self-incrimination "not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Roach, 804 F.2d at 1151 (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973).
A witness can prevail in his assertion of the privilege only when he has "reasonable cause to apprehend danger from a direct answer." Hoffman v. United States, 341 U.S. 479, 486 (1951). The claim of privilege cannot be sustained if the fear of self-incrimination rests on "remote and speculative possibilities;" the privilege protects only against "real dangers." Zicarelli v. N.J. State Comm'n of Investigation, 406 U.S. 472, 478 (1972).
Further, the confrontation clause of the Sixth Amendment guarantees a criminal defendant the right to cross-examine witnesses against him. See Douglas v. Alabama, 380 U.S. 415, 418 (1965). However, the confrontation clause, while guaranteeing "an opportunity for effective cross-examination," does not guarantee "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). If a witness' invocation of his rights under the Fifth Amendment could interfere a defendant's right to cross-examine, the court must ensure that the invocation did not "effectively . . . emasculate the right of cross-examination itself." Id. at 19. Courts often prevent an emasculation of the confrontation right by striking the testimony of a nonrespondent witness. United States v. McGlory, 968 F.2d 309, 344 (3d Cir. 1992) (citing Bagby v. Kuhlman, 932 F.2d 131, 135 (2d Cir.), cert. denied, 502 U.S. 926 (1991).
In some instances, a defendant's Sixth Amendment right to confrontation will be denied as a result of a witness' invocation of his Fifth Amendment privilege against self-incrimination. Bagby, 932 F.2d at 135. However, "the Sixth Amendment is violated only when assertion of the privilege undermines the defendant's opportunity to test the truth of the witness' direct testimony." Id. As stated by the Second Circuit Court of Appeals,
To reconcile a defendant's rights under the confrontation clause with a witness' assertion of the fifth amendment privilege, a court must initially consider: (1) whether the matter about which the witness refuses to testify is collateral to his or her direct testimony, and (2) whether the assertion of the privilege precludes inquiry into the details of his or her direct testimony. See Dunbar [v. Harris, 612 F.2d 690, 692-3 (2d Cir. 1979);] see also Klein [v. Harris, 667 F.2d 274, 289 (2d Cir. 1981)]. If the court determines that the privilege has been invoked with respect to a collateral matter, or that the invocation does not preclude inquiry into the witness' direct testimony, then the defendant's right to cross-examine has not been impinged and no corrective action is necessary. Conversely, the sixth amendment is violated when a witness asserts the privilege with respect to a non-collateral matter and the defendant is deprived of a meaningful opportunity to test the truth of the witness' direct testimony. To remedy such a violation, the court must determine whether the witness truly waived the privilege by testifying on direct examination. Klein, 667 F.2d at 287-88; see also Brown v. United States, 256 U.S. 148, 154-57, 78 S. Ct. 622, 626-28, 2 L. Ed.2d 589 (1958). If the privilege is deemed to have been waived, the court should compel the witness to respond to the defense's cross-examination. Klein, 667 F.2d at 289; [United States v. Cardillo, 316 F.2d 606, 611 (2d Cir. 1963)]. On the other hand, if the privilege has not been waived, or if the witness simply refuses to testify, the witness' direct testimony should be stricken in whole or in part. Klein, 667 F.2d at 289; Cardillo, 316 F.2d at 611.
Bagby, 932 F.2d at 135 (emphasis in original). Further, the Third Circuit Court of Appeals has "recognized that reversible error, on Sixth Amendment grounds, may occur where the witness' testimony "add[s] critical weight to the prosecution's case in a form not subject to cross-examination." McGlory, 968 ...