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The denial of an opportunity to cross-examine a witness regarding his whereabouts has been held to violate a defendant's U.S. Const. amend. VI right to confront a witness.
Defendant Patricia Lynn Opager allegedly sold a pound of 90.4% pure cocaine to three buyers, two of whom happened to be law enforcement officers, and the third a government informant and acquaintance of defendant. At her trial, Opager attempted to establish an entrapment defense. The trial court ordered the government to disclose where an informant was; however, the government refused to do so because the informant did not wish to speak with defense counsel. The trial court sustained an objection to a question about the informant's whereabouts and sustained an objection as to the admission of evidence to contradict the informant's testimony. Defendant was then convicted by a jury of knowingly and intentionally possessing cocaine with the intent to distribute and knowingly and intentionally distributing cocaine in violation of 21 U.S.C.A. § 841(a)(1). The defendant challenged her conviction.
Under the circumstances, should defendant’s conviction be upheld?
The Court reversed the convictions. The Court held that Fed. R. Evid. 608(b) did not prevent the admission of the contradictory evidence because the evidence dealt with a material issue as to whether the informant was correct. Moreover, the Court held that the government was required to disclose where the informant was because of the effect on defendant's theory of entrapment. The Court averred that the address of a government witness must ordinarily be disclosed to the defense, and the burden fell on the government to show why, in a particular case, such disclosure should not be made. The mere wish of the witness not to be interviewed was insufficient to meet this burden.