of a perjurious recantation and simply pleads the Fifth
Amendment. Were she to take the stand and recant, the
factfinder would be free to disbelieve her recantation. But
where she refuses to testify, according to Klein the court is
required to strike her earlier testimony. She can therefore
successfully rescue the defendant without even committing
The Klein ruling distorts both the scope of the right of
confrontation and the receptivity of the law to subsequent
As to confrontation, defendants have a limited right. It is
satisfied by an adequate opportunity for cross-examination.
Defendants are not entitled to conduct endless
cross-examination. See Delaware v. Van Arsdall; Raineri;
DeRosa. In both Klein and this case, the defendants conducted
full cross-examination of the inculpatory witness. It was only
when the defendant recalled the witness to the stand that the
defendant's opportunity to examine was restricted by the
witness's plea of the Fifth Amendment.
Secondly, the law characteristically views reports of witness
recantation with skepticism, indeed, "with the utmost
suspicion." United States v. DiPaolo, 835 F.2d 46 (2d Cir.
1987) (denying motion for new trial despite submission of
recanting affidavit signed by witness). The reasons are clear
— among them, a witness may be improperly prevailed upon to
change her testimony. Particularly late in a trial, a defendant
who sees the prospects of acquittal worsening may be strongly
motivated to do whatever he can to avoid conviction. In the
case of a motion for new trial under Fed.R.Crim.Pro. 33 based
on a witness recantation, courts are specifically instructed to
be wary of witness recantations. The court granting such a
motion must be satisfied that (1) the testimony recanted was
"false and material;" (2) that without the original testimony,
the jury would probably have acquitted the defendant, and (3)
that the party seeking the new trial was surprised when the
false testimony was given or did not know of its falsity until
after the trial. Id.; see also United States v. Massac,
867 F.2d 174 (3d Cir. 1989); United States v. Page, 828 F.2d 1476
(10th Cir.), cert. denied, 484 U.S. 989, 108 S.Ct. 510, 98
L.Ed.2d 508 (1987).
In my opinion, the weakness of the Klein ruling is in its
failure to distinguish between the circumstances where the
court finds a high probability that the defendant has been
deprived of a genuine recantation by the witness's claim of
privilege and the circumstance where, through the artifice of
the defendant or the witness or both, the court has been
manipulated. I believe that the Court of Appeals should not
have required the trial judge to strike the earlier testimony,
but ought to have allowed discretionary latitude to retain the
earlier testimony depending on the perceived likelihood of
Were I permitted to do so by the rule of the Second Circuit,
I would find a high likelihood that Sandra Mann Shannon's
announced intention to recant was untrustworthy. There was
substantial evidence both at the trial and on the habeas
hearing that the witness was afraid of the defendant and that
the defendant had hit and threatened the witness.
Further, I would find that the defendant had enjoyed adequate
opportunity to cross-examine and that the proffer of the
witness's recantation was highly untrustworthy. I would find
little reason to doubt the trustworthiness of the witness'
earlier incriminating testimony. I would rule on these
particular facts that petitioner had failed to show entitlement
to a writ of habeas corpus.
Nonetheless, because I read Klein v. Harris to require this
result, I hereby grant the petition for habeas corpus.*fn12
The petition for a writ of habeas corpus is granted.