Evidence Notes File 8

LAW 6330 (4 credits)
Professor Pedro A. Malavet

8.0 Impeachment

• Pattern Jury Instructions for the Eleventh Circuit are available at:
  http://www.ca11.uscourts.gov/documents/index.php

8.1 Impeachment Generally

Methods of Impeachment:

• (1) Bias/Corruption:
  showing that the witness has some bias, animus, motivation, or corruption that might lead him to fabricate or shade his testimony to help or hurt one of the parties;
• (2) Mistake:
  showing a defect in his sensory or mental capacity (perception or memory) that undercuts his testimony, and 
• (3) Liar/Character:
  showing that he is by disposition untruthful.
  • (a) cross-examining the target witness about nonconviction misconduct casting doubt on his honesty (Rule 608(b))
  • (b) cross-examining him about convictions for certain kinds of criminal acts (Rule 609), and 
  • (c) testimony by a character witness that the target witness is untruthful (Rule 608(a)).
• (4) Inconsistent statements:
  showing that the witness has made a prior inconsistent statement [FRE 801(d)(1)(A)]
• (5) Contradiction:
  contradicting the witness --showing that he is just plain wrong on one or another point in his testimony. [FRE 613(b)] [Rule 609]

Types of Impeachment

• Specific: the impeachment brings into question specific parts of testimony
• Definitive: there is a particular definitive reason to doubt the witness.

Casebook

• [CB] The first three methods are definite but nonspecific: They are definite in telling the trier why to doubt the witness, but nonspecific in not showing what testimony to doubt. They include (1) showing that the witness has some bias, animus, motivation, or corruption that might lead him to fabricate or shade his testimony to help or hurt one of the parties, (2) showing a defect in his sensory or mental capacity (perception or memory) that undercuts his testimony, and (3) showing that he is by disposition untruthful. A party may mount this third attack in three different ways, including (a) cross-examining the target witness about nonconviction misconduct casting doubt on his honesty (Rule 608(b)), (b) cross-examining him about convictions for certain kinds of criminal acts (Rule 609), and (c) testimony by a character witness that the target witness is untruthful (Rule 608(a)).
• [CB] The fourth and fifth methods are specific but indefinite: They are specific in calling into doubt particular points in the testimony of the witness (hence suggesting the possibility of error or falsehood on other points) but indefinite because they do not necessarily reveal the underlying cause. These include (4) showing that the witness has made a prior [CB-586] inconsistent statement (meaning one that conflicts with his current testimony), and (5) contradicting the witness-showing that he is just plain wrong on one or another point in his testimony.

Ping-Pong?

• [CB] Repairing credibility. Usually the adversary of the attacking party has an interest in repelling the attack or otherwise repairing the credibility of the witness. Subject to the discretion of the court under FRE 611 to limit excursions into side issues, the "supporting party" may examine the witness in an effort to refute points suggested during the attack or explain away any aspersions cast upon his veracity.
• [CB] Sometimes the supporting party mounts an offensive of his own. Under certain conditions, he may offer proof of the good character of the witness for truth and veracity or evidence of prior consistent statements by the witness (which harmonize with his direct testimony).
• [CB] The regulating scheme. The drafters of the Federal Rules chose to regulate the subjects of impeaching and repairing witness credibility only in part. Thus the Rules make no mention of bias or mental or sensory capacity, no mention of contradiction, and only refer indirectly to the use of prior consistent statements to repair credibility.

Note the list of permissible questions in the text:

• Q (defense to government witness): Isn't it true, sir, that your livelihood depends entirely on government payment for your work as an informer and that you made up your testimony about my client in order to collect government bounty?
• Q (defense to government witness): Officer, isn't it true that you are having an affair with defendant's wife?
• Q (plaintiff to defendant's expert in product liability case): Will you tell us, sir, what hourly rate you charge for testifying in cases such as this one?
• Q (prosecutor to defense witness, an alleged co-offender): Isn't it true that defendant has been paying your wife's grocery and light bills since you were incarcerated?
• Q (defense to government witness): Isn't it true, sir, that my client rebuffed your homosexual advance?
• Q (defendant sheriff, charged with civil rights violations, to prosecution witness): Isn't it true that you were arrested on an earlier occasion by defendant's deputies?
• [CB, Constitutional Right(s)]
  • So important is the defense right to develop bias on the part of prosecution witnesses that the Supreme Court has held that denying cross-examination on such a point can violate defense confrontation rights and due process. See Olden v. Kentucky, 488 U.S. 227 (1988) (confrontation rights violated by blocking defense effort to show complainant was living with boyfriend; theory was that rape charges were concocted to explain why she was driving with him and other men in car after meeting them at bar, to protect relationship with boyfriend); ***  

Case: Abel

Note that the Supreme court and the Ninth Circuit take radically different positions:

The Ninth Circuit sees the specter of guilt by association, i.e., that the evidence proves defendant Abel's membership in a criminal gang, and thus his guilt because he is a bad man, clearly improper [FRE 608(b)] At the very least, Abel is being connected to Mills, and Mills is shown to be an unsavory person merely by membership in the organization, without proof that he actually adopted the organization's tenets.

The Supreme Court sees common membership in an "odious" group as impeaching by itself. Legitimate show of witness Robert Mills' bias.

The Procedural discussion of the testimony prior to trial, and the judge's ruling on the matter, are part of the context used by the Supreme Court to approve of the District Court's actions.

• [CB, second full paragraph, final sentence] The District Court held that the probative value of Ehle s rebuttal testimony outweighed its prejudicial effect, but that respondent might be entitled to a limiting instruction if his counsel would submit one to the court.
• The Testimony:
  [CB] At trial Ehle implicated respondent as a participant in the robbery. Mills, called by respondent, testified that Ehle told him in prison that Ehle planned to implicate respondent falsely. When the prosecutor sought to cross-examine Mills concerning membership in the prison gang, the District Court conferred again with counsel outside of the jury's presence, and ordered the prosecutor not to use the term ''Aryan Brotherhood" because it was unduly prejudicial. Accordingly, the prosecutor asked Mills if he and respondent were members of a "secret type of prison organization" which had a creed requiring members to deny its existence and lie for each other. When Mills denied knowledge of such an organization the prosecutor recalled Ehle.
• Malavet: HEARSAY warning
  • Remember our previous discussion: impeachment use of a witness' prior statement is deemed to be a "non-truth" use of the statement, and thus is considered NOT hearsay for 801(c) purposes. I realize that this is difficult to accept, since it appears that the truth of the statement by Ehle ("I am going to frame Abel") but that is the well-established view.
  • [Click here to go to prior discussion]
• [CB] Ehle testified that respondent [Abel], Mills, and he [Ehle] were indeed members of a secret prison organization whose tenets required its members to deny its existence and "lie, cheat, steal [and] kill" to protect each other. The District Court sustained a defense objection to a question concerning the punishment for violating the organization's rules. Ehle then further described the organization and testified that"in view of the fact of how close Abel and Mills were" it would have been "suicide" for Ehle to have told Mills what Mills attributed to him. Respondent's counsel did not request a limiting instruction and none was given.
• [CB] The jury convicted respondent. On his appeal a divided panel of the Court of Appeals reversed. ***
• [The Circuit Court reversed the conviction; it wrote:]
• [CB] It is settled law that the government may not convict an individual merely for belonging to an organization that advocates illegal activity. Scales v. United States, [505] 367 U.S. 203, 219-24; Brandenburg v. Ohio, 395 U.S. 444. Rather, the government must show that the individual knows of and personally accepts the tenets of the organization. Neither should the government be allowed to impeach on the grounds of mere membership, since membership, without more, has no probative value. It establishes nothing about the individual's own actions, beliefs, or veracity. 707 F.2d 1013, 1016 (1983) (citations omitted). [The Supreme Court disagrees]
• [CB] We hold that the evidence showing Mills' and respondent's membership in the prison gang was sufficiently probative of Mills' possible bias towards respondent to warrant its admission into evidence. Thus it was within the District Court's discretion to admit Ehle's testimony, and the Court of Appeals was wrong in concluding otherwise.
• [Do the Rules expressly allow impeachment for bias?]
• [CB] Both parties correctly assume, as did the District Court and the Court of Appeals, that the question is governed by the Federal Rules of Evidence. But the Rules do not by their terms deal with impeachment for "bias," although they do expressly treat impeachment by character evidence and conduct, Rule 608, by evidence of conviction of a crime, Rule 609, and by showing of religious beliefs or opinion, Rule 610. [FRE 611(b)] Neither party has suggested what significance we should attribute to this fact.
• [Why did we do that?] Although we are nominally the promulgators of the Rules, and should in theory need only to consult our collective memories to analyze the situation properly, we are in truth merely a conduit when we deal with an undertaking as substantial as the preparation of the Federal Rules of Evidence. In the case of these Rules, too, it must be remembered that Congress extensively reviewed our submission, and considerably revised it.
• [CB] With this state of unanimity confronting the drafters of the Fed. Rules of Evid., we think it unlikely that they intended to scuttle entirely the evidentiary availability of cross-examination for bias.
• [CB] We think this conclusion is obviously correct. Rule 401 defines as "relevant evidence" evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 402 provides that all relevant evidence is admissible except as otherwise provided by the United States Constitution, Act of Congress, or by applicable rule. A successful showing of bias on the part of a witness would have a tendency to make the facts to which he testified less probable in the eyes of the jury than it would be without such testimony.
• [CB] The correctness of the conclusion that the Rules contemplate impeachment by showing of bias is confirmed by the references to bias in the Advisory Committee Notes to Rules 608 and 610, and by the provisions allowing any party to attack credibility in Rule 607, and allowing cross examination on "matters affecting the credibility of the witness" in Rule 611(b). The Courts of Appeals have upheld use of extrinsic evidence to show bias both before and after the adoption of the Federal Rules of Evidence.
• [CB, bottom of the page] Mills' and respondent's membership in the Aryan Brotherhood supported the inference that Mills' testimony was slanted or perhaps fabricated in respondent's favor. A witness' and a party's common membership in an organization, even without proof that the witness or party has personally adopted its tenets, is certainly probative of bias.
• Malavet:
  • Note how the Supreme Court, in rejecting the 403 argument for exclusion, states that common membership by both ABEL AND MILLS is what gives the evidence probative value.
  • Distinguish:
    • (1) Common membership in any organization shows possible bias;
    • (2) Common membership in lying & murderous organization, even absent proof of adoption of those tenets by the witness, shows possible dishonesty.
• [CB] Respondent specifically contends that the District Court should not have permitted Ehle's precise description of the gang as a lying and murderous group. Respondent suggests that the District Court should have cut off the testimony after the prosecutor had elicited that Mills knew respondent and both may have belonged to an organization together. This argument ignores the fact that the type of organization in which a witness and a party share membership may be relevant to show bias. If the organization is a loosely knit group having nothing to do with the subject matter of the litigation, the inference of bias arising from common membership may be small or nonexistent. If the prosecutor had elicited that both respondent and Mills belonged to the Book of the Month Club, the jury probably would not have inferred bias even if the District Court had admitted the testimony. The attributes of the Aryan Brotherhood-a secret prison sect sworn to perjury and self-protection-bore directly not only on the fact of bias but also on the source and strength of Mills' bias. The tenets of this group showed that Mills had a powerful motive to slant his testimony towards respondent, or even commit perjury outright.
• [CB] Respondent makes an additional argument based on Rule 608(b). That Rule allows a cross-examiner to impeach a witness by asking him about specific instances of past conduct, other than crimes covered by Rule 609, which are probative of his veracity or "character for truthfulness or untruthfulness." The Rule limits the inquiry to cross-examination of the witness, however, and prohibits the cross-examiner from introducing extrinsic evidence of the witness' past conduct.
• Malavet: Extrinsic Evidence
  • Note that in this case Ehle's testimony about the Aryan Brotherhood is the "extrinsic" evidence. Additionally, the court refers to this, correctly, as evidence of prior acts, not crimes, even though the clear implication is that they met as prison inmates, which implies criminal convictions.
  • The evidence shows that Mills:
    • (1) might lie for his buddy Abel and
    • (2) might be a liar generally.
• [CB] It seems clear to us that the proffered testimony with respect to Mills' membership in the Aryan Brotherhood sufficed to show potential bias in favor of respondent; because of the tenets of the organization described, it might also impeach his veracity directly.

Notes

• NOTE 4: *** Given the inevitability of defense cross-examination on this subject, what should the prosecutor do on direct? See United States v. Gaev, 24 F.3d 473, 478-479 (3d Cir. 1994) (on direct, government properly asked drug conspirator about plea agreement; otherwise jury would learn he was involved and might infer that he had not been punished).
• [THE RULES OF THE GAME:
  The authors explain in their notes to the case:]
  • When an attack for bias employs extrinsic evidence in the form of third-person testimony describing prior statements by the witness (note 6), FRE 613(b) might be read to require that he have "an opportunity to explain or deny the same" (this provision covers "[e]xtrinsic evidence of a prior inconsistent statement"). Of course the calling party must have a chance to refute the attack (see pages 670-671), and the question is whether FRE 613(b) requires the calling party to be able to refute the attack on the spot (during redirect). While FRE 613(b) expressly addresses another form of impeachment (prior inconsistent statements), Hudson applies the same principle to use of statements to prove bias.

Problem 8-A: The Hired Gun (Vending-Machine Experts)

• [CB] Q [plaintiff s counsel]: Professor Riley, you mentioned that you are being paid here today. $400 a day, is that right?
• A [Riley]: That's correct.
• Q: All right, sir, now could you tell us please how much you expect to be paid for your work on this case in total?
• [Defense counsel]: Your Honor, we have nothing to hide here, but plaintiff's counsel clearly wants to browbeat this witness. The professor has said how much he gets paid, and it's a lot of money because he's a highly trained expert. There's no reason to go into great detail here. It just wastes time and distracts us all from what's really at stake here.
• [Plaintiffs counsel]: Your Honor, the jury should know how much this man expects to get paid. I want them to know some other things too, including
  • (1) how much he made testifying for GM last year,
  • (2) whether he expects to testify for GM again,
  • (3) how much he made, all told, in court appearances last year testifying for automakers, and
  • (4) approximately what proportion of his total income comes from such appearances.

Authors' Notes on the Problem:

• On these facts, we would say plaintiff should be able at least to ask whether Riley has a larger economic interest in testifying well for GM, and whether he has regular clients whose positions he tends to support. Plaintiff wants to "steal back a little thunder" by being first to raise at least something bearing on credibility. GM played Caesar's wife by disclosing the impeaching fact on direct, and plaintiff fears this tactic drained the fact of its deserved effect. To restore the force of the fact in the drama of trial, plaintiff needs to score a rhetorical point.
• The Graham study suggests that courts allow questions about (a) continuing employment by the calling party and (b) prior testimony for the same party or attorney, but not those about (c) previous compensation from the same party or attorney on other cases, (d) the proportion of the expert's total income which comes from testifying for a party or type of party, or (e) the degree to which the expert limits his testimony to certain causes or certain sides of issues. See generally Graham, Impeaching the Professional Expert Witness by a Showing of Financial Interest, 53 Ind. L.J. 35, 50 (1977-1978) (arguing that all these avenues of attack should be permitted).
• Malavet:
  • Be sure to look at the examples in the notes following the problems.

Malavet on the Graham Study

• To supplement note 1, which discusses the Graham article, I showed the following:
• Permissible Questions for Experts (Provided by the authors)
• The Graham study suggests that courts
  allow questions about 
  • (a) continuing employment by the calling party and 
  • (b) prior testimony for the same party or attorney,
• but not those about
  • (c) previous compensation from the same party or attorney on other cases,
  • (d) the proportion of the expert's total income which comes from testifying for a party or type of party, or 
  • (e) the degree to which the expert limits his testimony to certain causes or certain sides of issues.
• See generally Graham, Impeaching the Professional Expert Witness by a Showing of Financial Interest, 53 Ind. L.J. 35, 50 (1977-1978) (arguing that all these avenues of attack should be permitted).
• This requires some research, which shows the following Bottom Line:
• A review of the caselaw indicates that courts today are much more likely to allow questions in categories (c)-(e) (even Florida). The federal courts tend to be more liberal than state courts, and the state courts are more or less divided.
• To the extent that courts are in fact more liberal now and tend to allow questions in categories (c)-(e), this has resulted in increased litigation regarding discovery requests [FRCP 26(a)(2)(B)] intended to generate such bias/interest evidence. See generally, Michelle Morgan Ketchum, Experts: Witnesses for the Persecution? Establishing an Expert Witness's Bias Through the Discovery and Admission of Financial Records, 63 UMKC L. REV. 133, 157-59 (1994).
• The courts are generally sympathetic to the need to conduct bias/interest impeachment against experts based on their financial interest and professional allegiance with particular types of parties, but they are more careful about allowing discovery of tax information.
• The newly amended FRCP 26(a)(2)(B) reads, in pertinent part, that the compulsory disclosures regarding expert witnesses must include "the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years." This establishes a pretty strong preference in the federal system for extensive bias/interest impeachment of experts.
• My experience has been that the federal courts tend to follow the liberal approach in allowing bias cross-examination that was urged by Graham, but the state courts display a more divided and nuanced approach.

Malavet: Here is a review of the cases that I Prepared:

• Collins v. Wayne Corp. 621 F.2d 777 (5th Cir. 1980) (liberal approach, cited in note 1 in the casebook). Rules that "cross-examination of an expert about fees earned in prior cases is not improper." The court added that "A pecuniary interest in the outcome of a case may, of course, bias a witness. A showing of a pattern of compensation in past cases raises an inference of the possibility that the witness has slanted his testimony in those cases so he would be hired to testify in future cases. The trial court did not err in allowing Wayne to cross-examine Severy about compensation he had received for Volkswagen."
• As to the third circuit case mentioned at page 597, do not over read it. Here, the expert worked for the government in condemnation proceedings for hundreds of properties. The court of appeals found that the bias/interest impeachment was properly limited by the trial court at its discretion. "The district court judge also exercised sound discretion in refusing to permit into evidence Orbaker's contract with the Government as an appraiser for the entire Beltzville project. In addition he properly refused appellants' request to cross-examine Orbaker as to the amount received for the appraisal work. He investigated 300 properties and appraised 187 properties. Appellants argue that they had a right to examine Orbaker as to his compensation for the entire project to show interest or bias. Assuming that the evidence was admissible for the purpose of showing interest or bias of the witness, a trial judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice, will confuse the issues, or mislead the jury. United States v. American Radiator & Standard Sanitary Corp., 433 F.2d 174, 203 (3rd Cir. 1970), cert. denied 401 U.S. 948, 91 S. Ct. 929, 28 L. Ed. 2d 231 (1971)."
• Trower v. Jones, 121 Ill. 2d. 211 (Ill. Sup. Ct. 1988). Contrary to what the offering party argued, opposing counsel could legitimately inquire into "evidence of an expert's financial interest in a case [including] the remuneration received for testifying (1) in a particular case, (2) for a particular party, or (3) for a particular party's attorney." Counsel could also inquire into "how much [the expert] was earning from services relating to rendering expert testimony [over the last two years]."
• Wrobleski v. De Lara, 353 Md. 509, 727 A.2d. 930 (Ct. App. Md. 1999). Includes an extensive review of caselaw and concludes that Trower represents a slight majority of cases on point that favor a liberal approach that allows bias cross-examination of expert witnesses to include questions regarding testimony in other cases and patterns of payments received from particular parties, as Graham urges. This Wrobleski court concludes: "For the reasons noted above, summarized and applied by the Illinois court in Trower, we believe that it is generally appropriate for a party to inquire whether a witness offered as an expert in a particular field earns a significant portion or amount of income from applying that expertise in a forensic setting and is thus in the nature of a "professional witness." If there is a reasonable basis for a conclusion that the witness may be a "professional witness," the party may inquire both into the amount of income earned in the recent past from services as an expert witness and into the approximate portion of the witness's total income derived from such services. The trier of fact may find either or both to be significant in determining the witness's credibility. n5 We hasten to add, however, two important caveats. First, we do not intend by our decision today to authorize the harassment of expert witnesses through a wholesale rummaging of their personal and financial records under the guise of seeking impeachment evidence. The allowance of the permitted inquiry, both at the discovery and trial stages, should be tightly controlled by the trial court and limited to its purpose, and not permitted to expand into an unnecessary exposure of matters and data that are personal to the witness and have no real relevance to the credibility of his or her testimony. Second, the fact that an expert witness devotes a significant amount of time to forensic activities or earns a significant portion of income from those activities does not mean that the testimony given by the witness is not honest, accurate, and credible. It is simply a factor that is proper for the trier of fact to know about and consider."
• Florida: Syken v. Elkins, 644 So.2d 539 (Fla. Dist. Ct. App. 1994) affd. 672 So. 2d. 576 (1996). Florida allows exploration of the expert's status as a "professional expert," but limits some specific questions regarding income. See Expert "may be asked to give an approximation of the portion of their professional time devoted to service as an expert." Limit: "need not answer how much money he or she earns as an expert or how much the expert's total annual income is." The Florida Court produced these guidelines (which were approved by the Fla. Supreme Court):
  • "Guidelines 
  • "For the foregoing reasons, discovery of an opposing medical expert for impeachment is limited by the following criteria:
  • "1. The medical expert may be deposed either orally or by written deposition. 
  • "2. The expert may be asked as to the pending case, what he or she has been hired to do and what the compensation is to be. 
  • "3. The expert may be asked what expert work he or she generally does. Is the work performed for the plaintiffs, defendants, or some percentage of each?
  • "4. The expert may be asked to give an approximation of the portion of their professional time or work devoted to service as an expert. This can be a fair estimate of some reasonable and truthful component of that work, such as hours expended, or percentage of income earned from that source, or the approximate number of IME's that he or she performs in one year. The expert need not answer how much money he or she earns as an expert or how much the expert's total annual income is. 
  • "5. The expert may be required to identify specifically each case in which he or she has actually testified, whether by deposition or at trial, going back a reasonable period of time, which is normally three years. A longer period of time may be inquired into under some circumstances. 
  • "6. The production of the expert's business records, files, and 1099's may be ordered produced only upon the most unusual or compelling circumstance. 
  • "7. The patient's privacy must be observed.
  • "8. An expert may not be compelled to compile or produce non-existent documents."
• Allstate Insurance Co. v. Boecher, 733 So.2d 993 (Fla. Sup. Ct. 1999). Discovery directed at a party regarding its relationship with the expert witness was permissible because it goes to that witness' possible bias or interest. There is more leeway to ask questions of a party than of the witness himself.
• Smith v. Transducer Tech., Inc., CIVIL NO. 1995/28, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS, DIVISION OF ST. CROIX, 2000 U.S. Dist. LEXIS 17217 (2000). Discovery of payments to expert by counsel that hired during the previous two years went to possible financial interest bias, and was permissible.
• Behler v. Hanlon, Case No.: JFM-99-3877, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, 199 F.R.D. 553; 2001 U.S. Dist. LEXIS 5879. "As will be discussed in more detail below, the fact that an expert witness may have a 20 year history of earning significant income testifying primarily as a witness for defendants , and an ongoing economic relationship with certain insurance companies, certainly fits within recognized examples of bias/prejudice impeachment, making such facts relevant both to the subject matter of the litigation, and the claims and defenses raised, and placing it squarely within the scope of discovery authorized by Rule 26(b)(1), in either its present, or immediately preceding version."
• BUT THE COURT ADDED LIMITATIONS:
  "However, legitimate issues are raised regarding the extent of the bias discovery sought, the methods of discovery employed, and possible abuses that could occur if the discovery is permitted without a protective order. For example, plaintiff seeks discovery of the total income earned by Dr. Keehn for the last five years, the amount thereof earned providing defense Rule 35 examinations, records relating to the hours spent by Dr. Keehn in this capacity, copies of his tax returns, and a listing of all insurance companies with whom he is affiliated, as well as a listing of all cases in which he has provided expert services. This is overkill."
• Ex Parte Morris, 530 So.2d 785 (Ala. Sup. Ct. 1988) (experts not required to produce income tax records during discovery).

8.2 Impeachment: Sensory Capacity and Prior Bad Acts

2. Sensory and Mental Capacity

• [CB] The attacking party may seek to show that a witness had only a brief chance to see or hear what she has described in her testimony, or that she labors under defects in sensory capacity that may affect her observation, or that human perceptive processes work in ways suggesting that her testimony is not so persuasive as it seems. Sometimes the attack proceeds by cross-examination, but such points may also be proved by extrinsic evidence when the attacking party presents his case.
• [Given the examples in this section, you know that this area can get very touchy.]
• [CB] One's psychiatric history is an area of great personal privacy which can only be invaded in cross-examination when required in the interests of justice.
• ***
• Whether the cross-examination is to be permitted under the above principles is an issue committed to the discretion of the trial court, which, in its determination, is "entitled to weigh the potential unfairness of a free wheeling inquiry intended to stigmatize the witness against whatever materiality the evidence might have."
• United States v. Lopez, 61 1 F.2d 44, 45-46 (4th Cir. 1979) (court relies on FRE 403).
• [Note the sexual assault situation discussed at the end of note 3 at page 513.]
• [CB] 4. Should experts testify on the reliability of eyewitness identification? [CB] Courts sometimes exhibit some sympathy toward such proof, United States v. Downing, 753 F.2d 1224 (3d Cir. 1985) (error to apply per se rule of exclusion; court should assess scientific basis and utility), and sometimes even reverse judgments or criticize rulings excluding it, see People v. Innis, 564 N.E. 2d 1155 (Ill. 1990); People v. McDonald, 690 P.2d 709 (Cal. 1984). [Note the recent caselaw discussed at page 414, indicating that if the trial is convinced, to admit or to exclude, her/his decision is likely to be upheld.]

A cautionary tale about eyewitness identification:
The case of  the rape of Jennifer Thompson and the ordeal of Ronald Cotton.

• As a result of [Jennifer Thompson's]  testimony, a man named Ronald Cotton was sentenced to life in prison. There, Cotton met another inmate, Bobby Poole, who bragged that he had raped Thompson. During Cotton's appeal of his conviction, Poole and Thompson were brought face to face in court - but she didn't recognize him. Eleven years later, DNA testing proved Poole's guilt, and Cotton was released. Devastated, Thompson sought out Cotton and apologized in a tearful meeting. Years later, the two are friends, Thompson says. (From a news item in the New York Times.)
• Reflecting on her error, Ms. Thompson explains:
• ... "I was asked to come down and look at the photo array of different men. I picked Ron's photo because in my mind it most closely resembled the man who attacked me. But really what happened was that because I had made a composite sketch, he actually most closely resembled my sketch as opposed to the actual attacker. By the time we went to do a physical lineup, they asked if I could physically identify the person. I picked out Ronald because, subconsciously, in my mind, he resembled the photo, which resembled the composite, which resembled the attacker. All the images became enmeshed in one image that became Ron, and Ron became my attacker." (Taryn Simon, Freedom Row, The New York Times, January 26, 2003, Sunday, Late Edition - Final, Section 6; Page 32; Column 1; Magazine Desk.)  
• For a detailed history of the case, click here.

3. Character for "Truth and Veracity"

Three means of proving untruthfulness through "Character" evidence: "
[FRE 404] [FRE 405]

(1) Cross-examination on nonconviction misconduct, 
[FRE 608(a)] [FRE 608(b)] 
(2) cross-examination on convictions, 
[FRE 609] 
(3) and use of character witnesses 
[FRE 608(a)] [FRE 608(b)]

In general, you will note that this area is carefully and extensively regulated by the Rules. This reflects the policy concerns about the effect of questions raising character issues.

• [CB] Proving "bad character for truth and veracity" (in the catchphrase of the profession) is a standard impeaching strategy, long a feature of Anglo-American law. The Rules continue this tradition, recognizing three means of proving untruthfulness: Cross-examination on nonconviction misconduct, cross-examination on convictions, and use of character witnesses.
• [CB] [For the proper context of this discussion, you should note that] that FRE 404 generally bars the use of character evidence to prove conduct outside of court. Showing that a person is untruthful involves character evidence to show a particular kind of conduct in court -lying on the witness stand- and FRE 404(a)(3) makes an exception permitting this strategy. FRE 608 and 609 authorize (and regulate) this means of attack.
• [CB] The restrictions that apply to this impeachment mechanism protect both witnesses and parties. It is embarrassing, even humiliating, for a witness to have his veracity called into question, and FRE 611 authorizes judges to "protect witnesses from harassment or undue embarrassment." When the witness is a party, such impeachment raises a risk of prejudice similar to that which FRE 404 guards against.
• [CB] It is worth noting that a party may lose much of the protection that FRE 404 provides if he decides to testify, for doing so opens him up to the kind of impeachment by evidence of bad character that FRE 608 and 609 permit. Yet testifying does not sacrifice all the protection of FRE 404, since an impeaching attack must focus on traits relating to veracity. If defendant in a murder trial testifies, for example, FRE 608 and 609 entitle the prosecutor to try to suggest that he is by disposition "dishonest," but FRE 404 continues to bar evidence that he is by disposition violent. Cf. United States v. Fountain, 768 F.2d 790, 795 (7th Cir.)

a. Cross-Examination on Nonconviction Misconduct

• [CB] Consider the following lines of inquiry, all approved in appellate opinions: [I will not transcribe each question, but it is important that you highlight and study them.]
• [Another thing that is illustrated by the questions is what I mentioned in class: in cross-examination, the question does the real damage, especially in this area.]
• [CB] Just putting such questions can impeach, no matter how the witness replies, for the odor raised by the question may linger after any denial. .... and the Supreme Court suggested long ago that lawyers cannot ask such questions without adequate basis. See Michelson v. United States ...
• [CB] The modern attitude is even more cautious: The thinking is that even if the cross-examiner has a factual basis for such questions, they can be damaging beyond their power to shed light on veracity. ... [See FRE 608(b)]
• [CB] Most modern cases disapprove of cross-examination about behavior that does not directly involve lies or deception. Thus questioning about drug use, violence, or sexual relationships is generally disapproved,3 although occasionally such points come out in attacks that show bias or motivation on the part of the witness.

United States v. Manske

Do you think that our casebook authors might have been influenced in their choice by the fact that court cited their treatise? These are rare and extremely gratifying occasions!

• AUTHORS: Manske wants to cross-examine Pszeniczka, an alleged co-offender who testified for the government, about threats he made to at least five different people, including Jacky Campbell and Mary Colburn (who testified for the government in this case). Manske also wants to cross-examine Cambpell and Colburn on these points. Arguing that these threats show only a "propensity for violence" rather than untruthfulness, the government makes a motion in limine to block the proposed cross-examination.
• [What was the factual basis proffered by Manske for his questions?]
• [CB] THE PSZENICZKA CROSS-EXAMINATION
• [CB] FRE 608(b) is a rule of limited admissibility. Other than certain criminal convictions allowed into evidence by FRE 609, a witness's specific instances of conduct may only be raised on cross-examination if they are probative of truthfulness or untruthfulness. . . . The defendant argues that these threats deal with more than mere violence-Pszeniczka's willingness to threaten violence was a means to achieve an end of dissuading people from testifying truthfully in legal proceedings-and thus clearly implicates Pszeniczka's truthfulness.
• [CB] As a leading treatise notes, there are three ways of looking at 608(b): a broad one, a narrow one, and a middle one. See Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence, 154-155 (2d ed. 1994). The broad view holds that "virtually any conduct indicating bad character indicates untruthfulness, including robbery and assault." Id. This view is untenable, as it would open the door to a potentially mind-numbing array of questions on every cross-examination. It would also "pave the way to an exception [to 608(b)'s limitations] that swallows the rule . . . [because it] adopts the hypothesis that all bad people are liars, which is an unverifiable conclusion." Joseph M. McLaughlin, Weinstein's Federal Evidence, §608.12[4] [c] 608-639 (2d ed. 1999). The narrow reading of the rule, which the government essentially urges on us, considers a crime as bearing on veracity only if it involves falsehood or deception, such as forgery or perjury. Mueller & Kirkpatrick at 154. The middle view "is that behavior seeking personal advantage by taking from others in violation of their rights reflects on veracity." Id. While this generally does not cover "personal crimes" involving violence, it does not necessarily exclude all such acts. The threat evidence would clearly be allowed in under the broad view, and probably excluded under the narrow one. Whether it would fit under the middle view is a more vexing question.
• [CB] Mueller and Kirkpatrick note that "[u]nder some circumstances, it seems wise to allow questions that would not be embraced by the more focused view but would pass muster under the middle view, and there appears to be a trend in this direction [among courts]." Id. at 159-160. Their treatise discusses a circumstance nearly identical to this one, where although the specific instance of conduct may not facially appear relevant to truthfulness, closer inspection reveals that it bears on that issue. "[W]hen [a party's question is] specific and well-founded, the cross-examiner should be allowed to ask . . . questions on acts better described as dishonest than false . . . [including questions related to] concealing or frightening off witnesses or suborning perjury (even in unrelated cases.)" Id. at 160-161 (emphasis added).
• [CB, bottom] The government urges us to reject the defendant's argument that this was error because the district court is entitled to great deference. See FRE 608(b) (specific instances of conduct may be inquired into "in the discretion of the court"). Recognizing that a district court's decision as to 608(b) is ordinarily reviewed for an abuse of discretion, United States v. Nelson, 39 F.3d 705, 709710 (7th Cir.1994), does not change our view of this matter. The usual deference does not apply when a district court incorrectly categorizes the nature of the evidence. Here, the trial court construed the threat evidence too narrowly: its error was in perceiving the threats as probative only of violence (which - if correct-would have been a proper reason to grant the government's motion in limine). However, because the threat evidence also implicated Pszeniczka's truthfulness, the government's motion should have been denied. Thus, this is not the prototypical case where we give deference to a district court's decision [520] to exclude evidence because it was repetitive, unfairly prejudicial, or might cause confusion.8
  
• [CB, note] 8. We also note that the questions Manske sought to ask were not part of a broad fishing expedition. The district court, government, and defense were all familiar with the threat subject matter. This is salient, in light of Mueller & Kirkpatrick's point referenced above-which we endorse-that questions such as those asked by. Manske should be allowed when they are "specific and well founded."
• [But, could it be harmless error?]
• BIAS
• [CB] Unlike the FRE 608(b) issue discussed above, no federal rule of evidence is directly pertinent. However, it is well established that a witness may be crossexamined for bias. We have noted that "bias is one of five acceptable methods of attacking a witness's credibility." United States v. Lindemann, 85 F.3d 1232, 1243 (7th Cir.), cert. denied, 519 U.S. 966 (1996); see United States v. Abel, 469 U.S. 45, 50 (1984) (despite absence of explicit mention of bias in federal rules, bias is "permissible and established basis of impeachment"). Indeed, it is the "quintessentially appropriate topic for cross-examination." Bachenski v Malnati, 11 F.3d 1371, 1375 (7th Cir.1993). Bias is always relevant, and parties should be granted reasonable latitude in cross-examining target witnesses. United States v. Frankenthal, 582 F.2d 1102, 1106 (7th Cir.1978). This latitude is wide enough, we believe, to encompass the case before us, where the defendant's theory was that the witnesses were biased against him because they feared for their personal safety, even though the incidents upon which they based that fear arose outside the context of this case. . . . See Mueller and Kirkpatrick, Federal Evidence, 401-402 (2d ed. 1994) (" [P] arties should be given considerable leeway, by wide-ranging inquiry on cross. . . . Proof of bias may properly show the following . . . fear by the witness for his [or her] personal safety or the safety of friends or family, relating to the parties or issues in suit"). See also Abel, 469 U.S. at 52, 105 S.Ct. 465 ("Bias may be induced by a witness's likes, dislikes, [or] fear . . . or by the witness's self-interest.") . . . In reaching our conclusion, we emphasize how closely this point and the FRE 608(b) issue [521] are entwined. If the bias question arose alone and was not, in combination, so central to the case, we might not consider it relevant.
• FOUNDATION?
• [CB] ... As we have already noted, the questions Manske sought to ask were "logically relevant to show bias." Thus, the only "necessary" questions the defendant need ask are the "who, what, why, where, and when" of the specific incidents he claims give rise to bias.9 If accepted, the government's argument in its brief that the defendant needed to explicitly ask questions like: "are you presently afraid of Steve Pszeniczka?" or "do you feel pressured to testify a certain way because of Steve Pszeniczka?" would dramatically limit the effectiveness of many cross-examinations. See Id. at 164-165 (Most experienced counsel avoid attempts to obtain a direct concession from a witness that he is biased, because the witness rarely makes the concession, and "in the attempt to force the concession, the counsel might become argumentative. Experienced counsel prefer to invite the jury to draw the inference of bias during closing arguments."); see also Thomas A. Mauet, Fundamentals of Trial Techniques 254-259 (2d ed.1988) (cross-examiner should not ask directly about bias, but instead should make point through suggestion that a witness has a motive or bias to lie). Thus, since such a "foundation" was not required, its absence
  
• [FOOTNOTE: 9. Of course, a district court may require some showing that the answers the crossexamination hopes to elicit are relevant, but the "who, what, why" questions are designed to achieve this result. Moreover, in this case, the relevance of Pszeniczka's prior threats seems readily apparent. cannot be used as a reason to deny the defendant the opportunity to ask these questions about bias.
• What is the remedy? Why?

NOTES

• [CB] 2. In asking Stephen Pszeniczka (pronounced "Zen eek a") about his threatening behavior, Thomas Manske was actually trying to impeach him in two different ways: One involved suggesting that Pszeniczka was simply untruthful, and the other involved suggesting that he was "framing" Manske, which is a form of bias or influence. (Apparently Pszeniczka himself was under investigation for money laundering and other offenses, and there was some logic behind the strategy of Manske in suggesting that Pszeniczka couldn't be trusted because he was in trouble with authorities.) If this latter theory dropped out of the case-if the only argument for questioning Pszeniczka about threatening witnesses was that it showed an untruthful disposition, would you still think the questions proper under FRE 608(b)?
• [Note 3 discusses the amendment to 608(b) which replaced "credibility" with the phrase "character for truthfulness". Why did Congress change this language?]

Case: Murphy v. Bonanno (4th edition, Now superseded by Manske).

• [The facts are messy, and there are two very different versions of the same event, supported by multiple witnesses.]
• [The Authors summarize, at page 603: Brian Murphy was charged and convicted on two counts of unlawful assault and one count of unlawful entry, which convictions were affirmed on appeal. In the present suit, a jury awarded compensatory and punitive damages in the amount of $45,000 to each plaintiff. Brian appealed. Elizabeth and Brian Murphy settled, and Brian continued his appeal from the judgment in favor of Diane Bonanno.]
• [As I explained, the reason why I assume there was no issue-preclusion as a result of the criminal conviction, is likely that they were misdemeanor convictions, and, under many state laws such convictions would lack preclusive effect.]
• [CB] Appellant's principal claim on appeal . . . is that the trial judge erred in refusing on relevance grounds to permit cross-examination of Ms. Murphy about several prior instances of asserted conduct reflecting poorly on her veracity as a witness.

A: The Three Questions

• [CB] First, appellant proffered that at an unidentified time in the past, a creditor-bank had demanded extra collateral on a loan incurred by Ms. Murphy. In response, she had pledged her husband's automotive company, Car Doctor, as collateral and given the bank a financial statement purporting to state the value of the company when, according to appellant, she "had no knowledge as to what the value of Car Doctor was."
• [CB] [Second] Perhaps more significantly, appellant proffered evidence that on two occasions (again unidentified by date) he and Ms. Murphy had occupied the same automobile and been involved in accidents from which neither suffered injury. Nevertheless, in each case Ms. Murphy submitted a "false and fraudulent" claim with an insurance company, apparently for injuries, and received payments of $33,000 and $5,000, respectively.
• [CB] Third, appellant proffered that "a certain doctor" had once loaned Ms. Murphy $50,000 and that five years later, when she had made no payments, the financially troubled doctor sought repayment. Ms. Murphy instead invited him to "the apartment" promising to give him a paper covering the loan, but then endeavored to "forc[e]" a settlement by accusing him of "sexual harassment" or "sexual assault." She and the doctor then indeed entered a settlement concerning the debt. Appellant argued that the present suit was yet another instance of Ms. Murphy's attempting to "extort" payment falsely through the vehicle of a lawsuit.
• [CB] The trial judge sustained objections to each proposed line of cross-examination on grounds of relevance. [While you might disagree with this characterization, given what the judge actually said, this is nonetheless the crucial error.]

B: The RULE

• [CB] "[A] witness may be cross-examined on a prior bad act that has not resulted in a criminal conviction only where (1) the examiner has a factual predicate for the question, and (2) the bad act bears directly upon the veracity of the witness in respect to the issues involved [i]n the trial." [FRE 608(b)] Portillo v. United States, 609 A.2d 687, 690-91 (D.C. 1992) (citations and internal quotation marks omitted); accord Woodward & Lothrop v. Hillary, 598 A.2d 1142, 1149 (D.C. 1991); Roundtree v. United States, 581 A.2d 315, 323 (D.C. 1990). The second prong of this test [asks whether the prior bad acts are probative of truthfulness or untruthfulness]. Thus, although "this court has not adopted the federal rules," Sherer, supra note 5, and though the law of the District of Columbia is not necessarily "identi[cal] " to Rule 608(b), this court has looked to decisions of the federal courts applying Rule 608(b) in determining whether a bad act "bears directly upon the veracity of the witness in respect to the issues involved in the trial."
• [CB] But "[a] trial judge abuses discretion where he or she 'fails to exercise choice in a situation calling for choice.' " Roundtree (quoting Johnson v. United States, 398 A.2d 354, 363 (D.C.1979) ). That situation may arise where the trial judge "[i]s insufficiently cognizant of h[is] discretion," does not "reflect[ ] an awareness of discretionary factors," or makes his ruling "under an assumption that cross-examination about [the prior bad acts at issue is] precluded as a matter of law."
• [CB, WHY THEY ARE RELEVANT] As to the first, federal courts have held that conduct amounting to "making false statements of a variety of kinds" is "probative of truthfulness or untruthfulness" within the meaning of FRE 608(b). 3 Jack B. Weinstein, et al., Weinstein's Evidence 1608-05, at 60846 (1995). Evidence that Ms. Murphy filed false insurance claims would be admissible under this principle as well.
• The trial judge excluded the second and third lines of questioning (and possibly the first) on grounds that they showed nothing more than that Ms. Murphy was "litigious" or claim-minded. But even if that were so, it is not a ground for categorical exclusion of the evidence. It has been said that "the courts of the District of Columbia are notably liberal in receiving evidence of claim-mindedness and allowing the jury to assess its weight." Roundtree (Schwelb,J., concurring in part and dissenting in part). Decisions binding on us firmly indicate the relevance of such evidence to assessing the truth of the witness' present allegations.
• [CB] That is, the judge did not determine first whether Mr. Murphy had an adequate "factual predicate" for the proffered questions, which were of a kind that, if hurled into the proceedings recklessly, could work unfair prejudice to Ms. Murphy despite her (expected) denial of the accusations. [Again, you can find this authority in FRE 403 and 611(a)].
• [CB] Beyond this fairly undemanding initial scrutiny, the relative strength of the factual proffer comes into play once again when the judge proceeds to balance the probative value of the impeachment against its potential for prejudice, including its capacity to besmirch the witness unfairly, delay the proceedings, or distract the jury by a quarrel over the facts of what remains after all a collateral incident. [You can trace this to FRE 403 and 611(a)]
• [CB] Nevertheless, we do not reverse and remand for a new trial, but instead will remand for the judge to reconsider the proposed lines of cross-examination under the principles discussed.

Malavet: Postscript

• On remand, the judge ought to hold a hearing to determine the factual basis for the three lines of inquiry. Note that this is NOT a jury proceeding. The JUDGE must be convinced that the questions should be allowed. Under FRE 608(b) extrinsic evidence would not be allowed AT TRIAL to be heard BY THE JURY, BUT it could be used to LAY THE FOUNDATION for the questions either in this post-hoc hearing, or in a judicial mini-hearing (without the jury) during a trial.
• Naturally, as the notes suggest, Brian Murphy is the first witness. The other potential witness that is likely to be allowed is the Doctor in the last question. Additionally, documentary evidence might be used to establish the existence of basic facts.
• The documentary evidence, while inadmissible extrinsic evidence of prior bad acts, might become admissible impeachment-by-contradiction evidence if the witness is asked the question during the trial, and denies some fact established by the documents. This is discussed at page 664 of your casebook.
• FRE 608(b)(2): Note that this rule constitutes a very narrow exception to the general rule that forbids the use of extrinsic evidence regarding character.
• Using the Murphy v. Bonanno case as an example: Elizabeth Murphy is the Principal Witness, i.e., she is testifying about ultimate facts that are important to Plaintiff Bonanno's case. Brian Murphy is called by defense counsel to testify regarding the character of Elizabeth Murphy, in order to attack her credibility. In his direct testimony he could testify as to her character, based on opinion or reputation, as allowed by FRE 405(a) and FRE 608(a), but he would not be allowed to testify about the three specific instances of bad acts that are the object of the case, because that would forbidden extrinsic evidence under the initial language of FRE 608(b). However, Plaintiff Bonanno's lawyer, under FRE 608(b)(2) and 405(a)(2) could cross-examine Mr. Murphy and attack his character opinion by using specific instances of (presumably good) conduct that support Elizabeth Murphy's credibility. Additionally, say that after Brian Murphy testifies, Bonanno's lawyer wants to support Elizabeth Murphy's credibility by calling Bonanno to testify about her good character. Opposing counsel, on cross-examination, likewise under FRE 405(a)(2) and 608(b)(2), could bring out prior bad acts by Elizabeth Murphy to attack Bonanno's opinion on the character of the Principal Witness.

8.0 Impeachment: Continued

8.3 Proving Prior Convictions

Rule 609. Impeachment by Evidence of Conviction of Crime
(a) General rule. For the purpose of attacking the credibility of a witness, (1)[A] evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and [(1)[B]] evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) ["Automatic" Admissibility] evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment. [FRE 404]

(The general view is that 609(a)(2) "Automatic" Admissibility preempts all FRE 403 discretionary rationales for exclusion by the court, as I stated when we covered this before. However, I suppose that an argument might be made that 609(a)(2) only pre-decides the "unfair prejudice" rationale of FRE 403, or perhaps even all three of the "fairness" rationales, but not the three "efficiency" rationales. But, given the context, impeaching a witness who has actually already testified, I am inclined to go with no remaining FRE 403 discretion, although I suspect that if the party wishes to offer too much evidence, the court might have to step in to shorten the impeachment, but that seems unlikely to be necessary.)

• [CB] Would you be surprised to learn that many courts think crimes of theft do not involve "dishonesty or false statement"? See United States v. Givens, 767 F.2d 574, 579 n.1 (9th Cir.) ("crimes of violence, theft crimes, and crimes of stealth do not involve dishonesty or false statement within the meaning of Rule 609(a)(2)"), cert. denied, 474 U.S. 953 (1985). Reacting to earlier rulings similar to that in Givens, the principal architect of the Rules commented that the author of Alice in Wonderland "would have been pleased" at this conclusion! Cleary, Preliminary Notes on Reading the Rules of Evidence, 57 Neb. L. Rev. 908, 919 (1978).
• [Malavet:
  With all due respect to Professor Cleary, the automatic admissibility rule has to be narrowly construed, or it would become the exception that swallows the rule.]
• [CB, middle of paragraph] *** A salient fact, and one often advanced by those favoring abolition of this method of impeachment, is that defendants in many criminal cases avoid taking the witness stand if they have a prior record that may come out during cross-examination. ***
• [Note the variety of state rules on this area, which shows how controversial it really is.]
• [CB] Finally [apparently on the SIXTH draft] came the enacted version of FRE 609(a): ****
• [CB] First, FRE 609(a)(1) said courts may exclude felony convictions on account of prejudice "to the defendant" without referring to criminal cases or saying anything about other parties or nonparty witnesses. Clearly the intent was to authorize courts to protect criminal defendants only: This form of impeachment is far more common in criminal than in civil cases. All the attention was focused on criminal cases, and it made no sense to distinguish between civil plaintiffs and defendants. In 1989, however, the Court decided that FRE 609 meant what it said, and that it did not permit a court to block cross-examination of a civil plaintiff on his prior conviction. See Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989).
• [The Court interprets the rules as they are written, not as they were meant to be written. NOTE that the rule was amended after this and it now reads "THE ACCUSED".]
• [CB] In 1990, FRE 609(a) was amended in an effort to solve these problems [The problems regarding the relationship between FRE 609 and FRE 403]. For witnesses other than criminal defendants, the amended version provides that impeachment by convictions for crimes punishable by death or imprisonment for more than one year is subject to FRE 403 (a standard that favors admissibility, since exclusion is warranted only if risk of prejudice substantially outweighs probative worth). For criminal defendants testifying as witnesses, amended FRE 609 (a) provides greater protection, allowing use of such convictions only if probative value outweighs prejudicial effect (a standard that favors exclusion). Amended FRE 609(a) also deletes the language limiting impeachment to "cross-examination," suggesting that it may go forward on direct and perhaps after the witness has left the stand.

Note how FRE 609(a)(1)(A) creates a presumption of admissibility of felony convictions of any witness other than the defendant, exactly as does FRE 403, whereas 609(a)(1)(B) creates a presumption of INadmissibility for the convictions of the testifying defendant.

Note further that FRE 609(a)(1)(B) constitutes an exception to the general rule of FRE 404(a)(1) that the character of the accused may not be attacked by the prosecution (except to rebut the accused's evidence of good character). Therefore, just as the accused opens the door to character attack by presenting evidence of good character, he also opens himself to attack on convictions IF HE TAKES THE WITNESS STAND.

• [CB] Time limit. FRE 609(b) recognizes a ten-year time limit, which in effect creates a presumption that convictions older than that are excludable, as measured from the later of the date of final release (which ordinarily is later) or the date of conviction (which is later if defendant is sentenced to time served).
• [CB] Pardon, annulment. FRE 609(c) disallows the use of convictions to impeach in some circumstances where formal procedures indicate that the witness has been rehabilitated (pardon, annulment, certification) if there have been no later felony convictions, or where a formal procedure concludes that the witness is innocent.
• [CB] Juvenile adjudications. FRE 609(d) provides that youthful brushes with the law are "generally" inadmissible, but that in criminal cases such adjudications may be raised in the case of "witnesses other than the accused." In effect this provision expresses the philosophy that transgressions by young people are not as serious as adult crimes and not as probative of credibility. What counts is not the age of the offender but the nature of the proceedings against him: Convictions under statutory schemes permitting prosecution of youthful offenders as adults but providing alternate penalties fall outside the restrictive language of FRE 609(d), which embraces only special juvenile offense schemes.
• [CB] The second sentence was placed in FRE 609(d) in response to the Supreme Court's decision in Davis v. Alaska, 415 U.S. 308 (1974) *** The Supreme Court reversed, noting Green may have been biased because of his "vulnerable status as a probationer" and his "possible concern that he might be a suspect." The Court was careful to distinguish between the use of prior crimes to suggest untruthful disposition, and the "more particular attack" aimed at "revealing possible biases, prejudices, or ulterior motives" directly related to the case.
• [CB] Pendency of appeal. FRE 609(e) permits cross-examination on convictions despite pendency of an appeal, a result justified by the fact that convictions are so much more often affirmed than reversed.
• [CB] Permitting in a later case the impeaching use of an earlier conviction that is being appealed can hardly be error (given FRE 609(e) ), but the later reversal of the earlier conviction creates argument for a new trial in the second case, on the basis of new evidence. See United States v. Soles, 482 F.2d 105, 107-108 (2d Cir.), cert. denied, 414 U.S. 1027 (1973).

Case: Lipscomb

• [CB] [In his second trial to a jury for possession of heroin with intent to distribute, Michael Lipscomb was convicted. Lipscomb had testified in his first trial (which ended in a hung jury), and had been impeached by cross-examination concerning his conviction for robbery eight years earlier. Lipscomb made a motion in limine to prevent such cross-examination on retrial, but Judge Oberdorfer ruled that the prosecutor could properly ask about the robbery conviction pursuant to FRE 609(a)(1), and Lipscomb did not testify. The judge also permitted the prosecutor to bring out prior convictions of three defense witnesses-Floyd Little (convicted of armed robbery five years earlier), Daryl Smith (convicted of armed robbery one year earlier), and Robert Green (convicted of accessory after the fact to manslaughter five years earlier).
• [CB] In that post-trial hearing [on defendant's motion for a new trial; NOTE that the opinion suggests that a pre-trial hearing of this nature is the preferred, though not required method], the government produced additional evidence on the prior convictions of Lipscomb and the three defense witnesses: On Lipscomb, the evidence showed (1) that in 1973 he and two others had robbed a man on the street by threatening him with a B-B gun, taking from him $13 and his hat and coat, (2) that Lipscomb "pled guilty while maintaining his innocence" under the Alford doctrine,a (3) that he was sentenced to three years' probation, then spent four months in a halfway house but was evicted for "disruptive behavior," including smuggling in a gun, and was shortly thereafter arrested for burglary, though charges were dropped and the only outcome was revocation of probation and an indeterminate sentence on the original conviction to six years in prison, (4) that in 1976 he failed to return from an unescorted furlough, was placed on "escape status," but turned himself in, (5) that while in a community care center he was arrested and convicted for several burglaries and reincarcerated, and (6) that he was finally released when his robbery sentence expired in November 1979.
• [Limiting Instruction?]
  [CB] The jury is told to consider the defendant's prior conviction only on the issue of credibility and not on the overall issue of guilt. But limiting instructions of this type require the jury to perform "a mental gymnastic which is beyond, not only their powers, but anybody's else." Nash v. United States, 54 F.2d 1006, 1007 (2d Cir.) (L. Hand,J.), cert. denied,285 U.S.556 (1932). In the words of Justice Jackson: "The naive assumption that prejudicial effects can be overcome by instructions to the jury, all practicing lawyers know to be unmitigated fiction."
• [CB, at the top of the page] In particular, there can be no legal presumption of admissibility. To the contrary, as noted earlier, the burden is on the government to show that the probative value of a conviction outweighs its prejudicial effect to the defendant.
• [Note that this language now only applies to admissibility of the ACCUSED's convictions, NOT to the convictions of the other witnesses.]
• [CB] A. PLAIN MEANING ]
  A comparison of Rule 609(a)(1) with Rule 609(b) [OLD FRE 609] [New FRE 609] strongly suggests that Rule 609(a)(1) does not require the district court always to inquire into the facts and circumstances underlying a prior felony conviction. [So the court is not obligated to conduct anything more than a simple inquiry].
• [CB] On the other hand, Rule 609(a)(1) is broadly phrased to require balancing of probativeness against prejudice, with no specific instructions as to how the balance is to be performed. The language of the Rule gives no hint that Congress intended to preclude the district court from considering all relevant evidence. And Rule 609(b) shows Congress' belief that the "specific facts and circumstances" of the prior crime are relevant to the balancing inquiry. [So the court MAY conduct such an inquiry].
• [CB] Moreover, Rule 609(a)(2) creates a per se rule that probativeness outweighs prejudice for crimes "involv[ing] dishonesty or false statement." Often, however, the trial judge will not be able to determine [621] from the name of a crime whether the defendant's conduct involved dishonesty or false statement. All circuits that have considered the question, including our own, have held that the prosecution may adduce specific facts to bring a prior conviction within Rule Rule 609(a)(2).b It seems equally appropriate to permit the district court to elicit such facts in balancing probativeness against prejudice under Rule 609(a) (1).
• Footnote b: "Of course, if a statutory petty larceny offense is committed not by stealth, but by fraudulent or deceitful means, e.g., taking by false pretenses, it may qualify as a crime involving dishonesty or false statement. Where the formal title of an offense leaves room for doubt, automatic admissibility under Rule 609(a)(2) will normally not be permitted, unless the prosecution first demonstrates to the court, outside the jury's hearing, that a particular prior conviction rested on facts warranting the dishonesty or false statement description."]
• [CB] We conclude from the language of Rule 609, then, that the district court can inquire into the background facts and circumstances, but need not always do so. Because the Rule does not indicate when the district court should seek this additional information, we further conclude that the district court has discretion to decide when it should do so.
• [CB] Moreover, the extra information on Lipscomb-in particular, his more recent burglary conviction-shows that he has not been rehabilitated since his robbery conviction, and therefore enhances the probativeness of the robbery conviction. And Green, although convicted only for accessory after the fact to manslaughter, had in fact been part of a group, another member of which had robbed and stabbed an 18-year-old boy; the group members then fled to Green's home.
  The reported cases supply numerous other examples of the relevance of background information. In some cases, the specific facts will make a conviction automatically admissible under Rule 609(a) (2).
• [CB WHAT ABOUT DELAY?] First, the district court is fully capable of taking possible burden or delay into account in deciding how much information it needs.67 Second, in many cases, the district court may be satisfied with readily available information-perhaps the witness' case jacket or presentence report, if available. Such information was sufficient to satisfy the district court in this case. The burden on the government to obtain this information is slight, and may well be outweighed by the possibility that-as for Lipscomb and Green-the extra information will strengthen the government's argument for admitting the convictions.
• [CB] Third, extra information is most likely to be important for the defendant because prejudice is far greater when the defendant himself is impeached.
• [Note that this distinction between prejudice to the accused and prejudice when the impeachment is directed at another witness, is now part of FRE 609(a)(1).]
• [CB] D. SUMMARY
  In sum, we hold, based on the language of Rule 609, the legislative history, and sound policy, that the district court has discretion to determine when to inquire into the facts and circumstances underlying a prior conviction and how extensive an inquiry to conduct. We decline at this time to establish general guidelines for determining when inquiry beyond the name and date of a conviction is necessary.... We will review the district court's decision as part of our overall deferential review of whether a decision to admit or exclude evidence is an abuse of discretion.
  [The conviction is affirmed.]
• [The simple or basic inquiry is into the name and date of the conviction. Beyond that, we get into discretion.]
• THE AUTHORS:
• Edited out of the book but visible in the full opinion in Lipscomb are four other points: The first is described in note 1 (what factors inform the court in exercising its discretion to admit or exclude felony convictions?). The second is the effect of Alford plea. The third relates to the question whether the trial court should make express and specific findings that explain its conclusion to admit convictions. Not surprisingly, the Court of Appeals in Lipscomb favors a "fuller explanation" of the reasoning than the trial judge provided, but Lipscomb (like most appellate opinions) is loathe to impose a formal requirement of express findings (commenting that an explanation "may not always be essential"). *** The fourth point that has been edited out but could be found in the full opinion in Lipscomb is that a robbery conviction is close to the middle of the spectrum of probative worth on credibility. It is "less probative than crimes that involve deception or stealth" (perjury, fraud, forgery, embezzlement, counterfeiting come to mind), but it bears "more strongly on credibility than, say, crimes of impulse, or simple narcotics or weapons possession." ***
   

Problem 8-B: "Hit the Deck"

• Authors' Answers
• Defense counsel would object to the convictions of Dennet and Farr; the prosecutor would object to the conviction of Elmo. Of course defendant has standing to object to use of Dennet's own conviction. Nor is there any doubt that he has standing to object to Farr's conviction, and the prosecutor can object to Elmo's conviction. While Farr and Elmo are nonparty witnesses, the convictions of these men are offered against the sponsoring party (prosecutor in the case of Elmo; defense in the case of Farr), since the purpose in each case is to harm the case of the party who called the witness.
• Prosecution witness Ray Elmo conviction.
• [T]he cast of FRE 609(a)(1) means the prosecutor would likely lose. He can prevail only by invoking the standard of FRE 403, which means the conviction comes in unless probative worth is substantially outweighed by the risk of unfair prejudice. It seems unlikely that the jury would misuse the conviction (it hardly reflects ill on the state or the character of the prosecutor) or become so angry that it acquits Dennet to "get back" at anybody (two classic notions of unfair prejudice). And the deference accorded to criminal defendants would incline the court to allow the conviction. (Anticipating this outcome, the prosecutor would be well-advised to bring out on direct examination that Elmo has the prior robbery conviction. [See FRE 607]).
• Defendant Dennet's conviction.
• The defense has a strong objection to Dennet's own conviction: Coupled with the fact that robbery is not high on the scale of veracity-related crimes, the big argument for exclusion is that the prior and charged offenses are the same. [NOTE that similarity of the offense actually raises the danger of unfair prejudice]. That means the potential for jury misuse (unfair prejudice) is high: The jury is not supposed to use the conviction of Dennet as proof of guilt, but it is hard to believe that won't happen. And Dennet's burden is eased by the fact that the Rule favors exclusion: Unless probative worth exceeds risk of prejudice, the conviction stays out. The argument to exclude is strong.
• Defense Witness Farr's conviction.
• Although Farr is a defense witness, the standard is theoretically the same one that applies to the Elmo conviction [FRE 609(a)] (under FRE 403, conviction comes in unless prejudice substantially exceeds probative worth). Here, however, the risk of prejudice seems more real than with the prosecution witness Elmo: Farr is apparently a friend of defendant Dennet, and it Farr's conviction is likely to have some spillover effect, especially if the jury learns that Dennet too has committed a prior robbery. All other things being equal, the risk of prejudice to Dennet seems less with the Farr conviction than with Dennet's own, but there is a risk nonetheless.

Gordon FRE 609(a) Factors:

• (1) the nature of the conviction, 
• (2) its recency or remoteness, 
• (3) whether it is similar to the charged offense, 
• (4) whether defendant's record is otherwise clean (convictions are presumably more probative of credibility if they show a continuing pattern rather than isolated instances), 
• (5) the importance of credibility issues, and 
• (6) the importance of getting the defendant's own testimony.
  • [From casebook notes]

Other Notes

• [CB] 3. In a case like Problem 8-B ("Hit the Deck"), is there any doubt that defendant may be prejudiced when a defense witness is impeached by his prior felony conviction? Why is that so?
• [CB] 6. When a witness is cross-examined on a prior conviction under FRE 609, should he be permitted on redirect to offer some explanation? Why or why not? See United States v. Jackson, 627 F.2d 1198, 12081210 (D.C. Cir. 1980) (on redirect, defendant "presumably could have brought out" certain facts that might "mitigate somewhat the 'bad man' image" that the conviction might have suggested).
• [CB] 7. Other than exclusion, are there any measures a court can take to minimize the prejudice of impeachment by a prior conviction involving a crime similar to the one presently charged? What about limiting the proof to the fact that defendant was convicted of a prior felony on a particular date but not telling the jury its nature? See United States v. Beahm, 664 F.2d 414, 418419 (4th Cir. 1981) (where defendant was accused of taking indecent liberties with children, error to impeach him with prior conviction for similar offenses; under balancing test of FRE 609(a) (1), trial court should have refused to admit the evidence"or at the very least limited disclosure to the fact of conviction without revealing its nature"). [NOTE the latest caselaw].
   
  

Problem 8-C: A History of Lying

Authors' Answers with My comments

• Dewald can certainly ask Pickett about her misdemeanor conviction for displaying a false handicapped symbol, and can probably ask about her felony conviction for obstructing justice. The first clearly fits FRE 609(a)(2), and the second probably does. Even if it doesn’t, it is a felony, and it probably passes muster under FRE 403 (the prosecutor cannot show that probative worth is substantially outweighed by unfair prejudice or other risks). Dewald cannot ask about Pickett’s conviction for petit larceny, which fits neither provision.
• The prosecutor can ask Dewald about his forgery conviction, which fits FRE 609(a)(2), and can probably ask about the obstruction conviction too, which fits FRE 609(a)(1) but not (a)(2). Hence it could be excluded because probative worth does not exceed risk of unfair prejudice, but probably it will be allowed, even though this “reverse 403” standard favors exclusion when probative worth and unfair prejudice are evenly balanced. Whether the prosecutor can ask about the conviction for petit theft is harder to say: On the one hand, the “elements” of the crime do not include dishonesty or false statement, and it is a misdemeanor so it might not fit either FRE 609(a)(1) or (a)(2). On the other hand, necessarily the charging document and jury instruction will refer to rigging an electric meter to create a false reading, which does require proof of deceit (what “dishonesty or false statement” means), which might bring the conviction within FRE 609(a)(2).
• (1) Pickett’s misdemeanor conviction (displaying false handicapped symbol): Dewald is entitled to ask Pickett about this conviction. The conviction fits FRE 609(a)(2), so the trial judge lacks discretion to exclude it unless one of the restrictions found in FRE 609(b) or (c) or (d) applies.
• [WHY?]
• (2) Pickett’s misdemeanor conviction for petit theft. Dewald probably cannot ask Pickett about her misdemeanor conviction for petit theft. The reason is that the conviction is not a felony, hence does not fit FRE 609(a)(1).
• [ANY OTHER REASON? Does 609(a)(2) apply?]
• (3) Dewald’s felony conviction for forgery. The government can ask Dewald about this conviction. Forgery fits FRE 609(a)(2) because ...
• [HOW?]
• (4) Dewald’s misdemeanor conviction for petit theft.
• [Coin toss. Consider: Is it possible to apply 609(a)(1)? Is it possible to argue 609(a)(2)? Consider arguments for either admission or exclusion.]
• The authors removed two old scenarios from the problem:
  • Pickett’s felony conviction for obstructing justice. Probably Dewald is also entitled to ask Pickett about this conviction. It probably fits FRE 609(a)(2) because “dishonesty or false statement” includes “deceit,” which embraces a conviction in which an element is “misleading conduct.” [How does it fit?]
• Malavet:
  • By contrast, Dewald's felony conviction for obstruction would likely fall under 609(a)(1) and involve the Gordon factors. The critical difference between Dewald's conviction and Pickett's was that Dewald was charged under a different section of the same statute that entailed conviction for "threats of physical force" with the purpose of preventing a witness from giving evidence. This was intended to illustrate that while Manske would allow cross about this under 608(b), 609(a)(2) is purposely intended to adopt a narrower test for automatic admissibility purposes.

Notes:

• [CB note 1, footnote 5] 5. Cases approving resort to FRE 609(a) (2) include United States v. Bay, 762 F.2d 1314, 1317-1318 (9th Cir. 1984) (forgery); United States v. Williams, 642 F.2d 136, 140 (5th Cir. 1981) (bribery); United States v. Lester, 749 F.2d 1288, 1300 (9th Cir. 1984) (filing false police report); United States v. McClintock, 748 F.2d 1278, 1288 (9th Cir. 1984) (mail fraud).
• Cases disapproving resort to FRE 609(a)(2) include United States v. Mansaw, 714 F.2d 785, 789 (8th Cir.) (prostitution), cert. denied, 464 U.S. 986 (1983); Czajka v. Hickman, 703 F.2d 317, 319 (8th Cir. 1983) (rape); United States v. Mehrmanesh, 689 F.2d 822, 833-834 (9th Cir. 1982) (narcotics); Reyes v. Missouri P. R.R., 589 F.2d 791, 795 (5th Cir. 1979) (public intoxication); United States v. Harvey, 588 F.2d 1201, 1203 (8th Cir. 1978) (assault).
• [Note 2 is a very important explanation of the lack of discretion to exclude once the court classifies it as a proper 609(a)(2) use.]
• [CB] 3. It has been especially hard to apply FRE 609(a) where the conviction involves a crime of theft. ***
   
   

Problem 8-D: Five-time loser SUPERSEDED in the new editions

Authors' Answers, with my comments

• (1) 6-month-old misdemeanor conviction for falsifying hotel register: This one does not fit 609(a)(1) because it is not a felony, but apparently it fits 609(a)(2) because elements of the offense include "dishonesty or false statement." That means no discretion to exclude. One might argue that convictions for violating a city ordinance do not count, but the Rule seems to embrace such convictions, and we see no good reason to avoid this result.
• (2) 2-year-old conviction for unlawful sale of marijuana: This one does not involve "dishonesty or false statement," so it does not fit 609(a)(2). It is a felony that fits 609(a)(1), but the judge has discretion to exclude and should do so unless probative value outweighs prejudicial effect (the standard is cast in favor of exclusion).
• (3) 4-year-old-conviction for grand larceny: This one is a felony and (absent special facts) most courts would say it does not involve dishonesty or false statement. Hence it fits only 609(a)(1) and could be excluded as prejudicial to Durston.
• (4) 8-year-old conviction for armed assault: This one clearly fits 609(a)(1) and not (a)(2), so the judge has discretion to exclude. Here that argument is powerful, especially since the standard favors exclusion (admit only if more probative than prejudicial)
• (5) 12-year-old forgery conviction: Here 609(a)(2) applies (dishonesty or false statement being an element in forgery) so the conviction is automatically usable (no discretion to exclude) unless it is too remote under the 10-year rule in FRE 609(b). The latter makes the conviction presumptively inadmissible if it is more than ten years old (although the judge can allow the question on advance notice [if it meets the heightened probative standard that disfavors admissibility included in FRE 609(a)(1)[B]]). Paraphrasing the Rule, the beginning point of the 10-year measuring period is "release from confinement" (September 1, 1990) [usually, release from confinement will come AFTER the sentence, but not always. Sometimes people are sentenced to time served, in which case the sentence comes after the time has been served]

END TIME Under FRE 609(b)?

(1) Time of the occurrence
(2) Time of filing of the complaint/indictment
(3) Time testimony is given

Your casebook authors prefer number two, as explained below:

• AUTHORS:
  From the standpoint of easy application and avoiding incentives for manipulation, taking the date of indictment as the end point might be the best rule (it would disqualify fewer priors than the first possibility, but more than the second). This rule might provide an incentive to get the indictment quickly, but that seems a desirable side effect.
• MALAVET:
  However, I DON'T AGREE, I think that for both civil and criminal cases the better rule in general is the time the testimony is received. If there is evidence of undue delay by a party, then the time might be change. One precedent consistent with this is a line of cases that tolls the ten year term if the defendant was a fugitive.
• Nevertheless, I don't think that it is fair for me to say that there is a "prevailing view" on this subject. I have found only a few cases, but note that the rule is not absolute exclusion, so in fact many times the evidence gets admitted, even if deemed to be beyond the ten year term.
• Cases: U.S. v. Williams, 892 F.2d 296 (CA3rd 1989) (date of trial is the end point); U.S. v. Foley, 683 F.2d 273 (CA 8th 1982) (refers to time of the crime, but, since the conviction was already more than ten years old at the time of the crime, it is hard to conclude that this is the absolute end time); U.S. v. Ras, 713 F.2d 311 (CA 7th 1983) (refers to time of the indictment, but not expressly as the FRE 609(b) time limit).
• Don' forget the NOTICE requirement for admitting older convictions. 

8.4 Prior Convictions

A student question on withheld adjudication:

• What I was referring to specifically is the situation where the court, typically due to a well-negotiated plea agreement, places a defendant on probation but chooses to withhold adjudication.
• To take an example from Florida law, Florida Rule of Criminal Procedure 3.670 provides in part:
• Rule 3.670. Rendition of Judgment
  • ... "[w]here allowed by law, the judge may withhold an adjudication of guilt if the judge places the defendant on probation."
• I researched this further, and found that The Florida supreme court in State v. McFadden has held that a trial court may "withhold adjudication of guilt after a plea has been accepted or after a verdict of guilty has been rendered and place the defendant on probation provided that the requirements of section 948.01(2), Florida Statutes (1997), are met. State v. McFadden, 772 So. 2d 1209, 1211 (Fla. 2000).
  • This court held that for purposes of impeachment under Fla. Stat. ch. 90.610(1), unless there was a final judgment of conviction or an adjudication of guilt, the defendant or witness could not be impeached with evidence of a guilty plea or verdict. Id.
• In sum, a defendant or witness in Florida may not be impeached based on a previous plea agreement, or even a verdict of guilty, when adjudication has been withheld.

Problem 8-D: Faker or Thug?

Authors' answers:

• (1) Differences between FRE 608 and FRE 609: Arguably two differences justify different regulating rules: First, convictions provide well-nigh certain proof of the elements of the crime, but questioning about nonconviction misconduct (or on details of crimes leading to conviction) is likely to rest on far thinner data. Second, the bare fact of criminal conviction is likely to have dramatic impact on the trier of fact. These differences support the different philosophies in the regulating Rules: Convictions are more freely usable because there is almost no risk of unfounded attack or unwarranted innuendo, but questioning is limited to prevent disproportionate (or explosive) impact.
• (2) Should prosecutors have a choice? The prosecutor can argue that the Rules endorse both modes of showing bad character for truth and veracity, and the attacking party should allowed here (as elsewhere) to pick his weapon of choice. The facts probative of Alien's veracity are the ones raised by the prosecutor's proposed questions. By comparison, the naked fact of conviction for tax fraud means less. The restrictions in FRE 609 (whether express, or developed by interpretation) serve only to limit the impact of the fact of the conviction, and the need for protection disappears when the attacking party forgoes mention of the conviction. FRE 608 empowers the trial judge to prevent the questioning from getting out of hand, and the proposed questions are directly in point on the credibility issue.
• [See note 1 at page 559, what suggested responses do you like? Note that there are split circuit cases referenced in note 2.]

FRE 609 vs. FRE 608(b)

• AUTHORS conclude: 
  "On balance, we are more persuaded by the defense argument than the prosecutor's -- though the question seems close. If events of the past have led to conviction, FRE 609 applies, and the cross-examiner should confine his questions accordingly."
• MALAVET:
  SEEMS CLOSE? ... 
  I think this is nuts, but, that and four bucks gets you coffee at Starbucks.
• Note 2 at page 559 notes that there is a split in the circuits
• Note 3 notes that there is a split among states.
• Authors, and obviously I, think that the 9th Circuit's Osazawa rule that the matter is governed by FRE 609(a) is the better rule.
• But note the Washington State that I describe next.

Washington State Cases:

• Apparently, the Washington state courts disagree with me, but under very special circumstances
• State v. Clark, 24 P.3d 1006 (Wash. 2001).
  • A horrific capital murder case in which the victim was a 7-yr.-old child.
  • The trial court ruled that 609 governed, and it precluded defense from cross-examining government witness on facts of the underlying offense. Wash. Supreme court held that the court HAD the discretion to allow questioning and states that it was under 608(b). But error harmless because the witness was examined about 36 prior convictions.
  • The majority opinion clearly states that the trial court has the discretion to allow questioning of the witness about the underlying facts of convictions under WRE 608(b). Note, however, that this witness testified only during the penalty phase, and the testimony was being offered by the defense. The authority that is cited by the majority rules that the defense has a sixth-amendment confrontation right to inquire into the credibility of the state's witnesses most important or "crucial" witnesses, and that includes asking about misconduct under 608(b). State v. York, 28 Wn. App. 33, 621 P.2d 784 (Wa. Ct. of App. 1980).
  • Non-crucial witnesses provide a less-compelling need for 608(b)/confrontation questioning. State v. Robinson, 44 Wn. App. 611, 722 P.2d 1379 (Wa. Ct. of App. 1986).
  • Other types of impeachment of the same witness by the defense also reduce the need to use specific acts or convictions for impeachment purposes. State v. Martinez, 38 Wn. App. 421, 685 P.2d 650 (Wa. Ct. of App. 1984).

FRE 609 vs. FRE 410?

• How to reconcile FRE 609 and FRE 410 is an interesting question. It is clear that FRE 609 does not create an exception for convictions based on nolo pleas. But 410 precludes many uses of nolo pleas.
• The casebook authors have suggested this:
  • Use of convictions based on nolo pleas seems questionable if the setting is a civil suit arising out of the very acts that generated prior charges resolved by nolo plea. Moreover, the matter of convictions based on nolo pleas is complicated by FRE 410, which bars use of the nolo pleas themselves against the pleader.
  • Unrelated litigation. It seems that FRE 410 provides overbroad protection: If the purpose of a nolo plea is to let the accused avoid conceding civil liability for his acts, it should not be necessary to exclude his plea in later litigation (civil or criminal) which is completely unrelated to the acts that generated the charges against him.
  • FRE 410 and 609 can be put together in a way which cures the overbreadth problem but which surely introduces great risk of blatant prejudice: Arguably the cross-examiner can ask about any conviction arising from a nolo plea without offending FRE 410, because the latter bars only mention of pleas. (This approach prevents the overbroad protection that FRE 410 seems otherwise to provide, if the later proceeding is unrelated to the acts generating the original criminal charges and nolo plea.
  • Civil Suit Related to Facts. But if the later proceeding is a civil damage suit against the defendant arising out of the very crime to which he pleaded nolo contendere, the impeaching use of the conviction puts before the jury the damaging fact that he conceded criminal responsibility for deed generating the present civil suit.)
  • Always Apply Privilege. Alternatively, FRE 410 and 609 can be put together so as to serve the purpose of the former (but perpetuate the overbreadth problem): Cross-examination on any conviction stemming from a nolo plea could be disallowed, because asking about the conviction is tantamount to asking about the nolo plea.

Consider this scenario, suggested by a student:

• The Defendant in a robbery case faces a mandatory life-term if convicted, because this conviction would be his third conviction. This is a zero-tolerance policy, which applies even if the prior convictions were misdemeanors (for FRE 609(a)(1) purposes, they were convictions for crimes NOT punishable by death or imprisonment in excess of one year). Let's say that the prior convictions were for shoplifting, and for possession of marijuana. Assume that the convictions are three and five years old, respectively. Assume further they do NOT fit within 609(a)(2).
• If Defendant testifies at his trial, (1) Would he have a strong reason to lie in order to avoid conviction?; and (2) Would evidence of the two prior convictions be admissible for impeachment? If so what form of impeachment, and why?
• It does not fit within 609(a)(1) or (2), so it cannot be used as "character" impeachment. But, there are other forms of impeachment. The best argument is in Davis v. Alaska, at page 616 in your casebook (convictions excludable under FRE 609 nevertheless admitted to show bias).
• Note further that this is NOT allowed by FRE 404(b). Motive to lie while testifying is not the "motive" to which 404(b) refers. 404(b) says that prior convictions might be used to show motive to commit the crime with which defendant is charged NOT motive to lie about it.
• See also, U.S. v. Denetlclaw, 96 F. 3d 454 (10th Cir. 1996) (admission of evidence of misdemeanor conviction to impeach defendant's testimony to the contrary was proper and not precluded by 609(a)(1), because it was used to contradict, rather than to show bad character).
• I did find one case in which the court states that the prosecution refrained from impeaching the testifying defendant due to fear that the jury might think this was a "Three Strikes" case and be more lenient with him. People v. Tobias, 77 Cal. App. 4th 38 (1999).
• Federal Three Strikes Statute 18 USC 3559(c)(7). The federal statute requires three serious offenses, as I think do most state statutes. Nevertheless, there are probably sentence-enhancement statutes that would add substantial time on the basis even of misdemeanor convictions.

Luce v. United States

• Chief Justice Burger delivered the opinion of the Court.
• We granted certiorari to resolve a conflict among the Circuits as to whether the defendant, who did not testify at trial, is entitled to review of the District Court’s ruling denying his motion to forbid the use of a prior conviction to impeach his credibility.
• Petitioner was indicted on charges of conspiracy, and possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§846 and 841(a)(1). During his trial in the United States District Court for the Western District of Tennessee, petitioner moved for a ruling to preclude the Government from using a 1974 state conviction to impeach him if he testified. There was no commitment by petitioner that he would testify if the motion were granted, nor did he make a proffer to the court as to what his testimony would be. In opposing the motion, the Government represented that the conviction was for a serious crime– possession of a controlled substance
• The District Court ruled that the prior conviction fell within the category of permissible impeachment evidence under Federal Rule of Evidence 609(a). The District Court noted, however, that the nature and scope of petitioner’s trial testimony could affect the court’s specific evidentiary rulings; for example, the court was prepared to hold that the prior conviction would be excluded if petitioner limited his testimony to explaining his attempt to flee from the arresting officers. However, if petitioner took the stand and denied any prior involvement with drugs, he could then be impeached by the 1974 conviction. Petitioner did not testify, and the jury returned guilty verdicts.
• The Court of Appeals held that when the defendant does not testify, the court will not review the District Court’s in limine ruling.
• Some other Circuits have permitted review in similar situations;3 we granted certiorari to resolve the conflict. We affirm.
• Any possible harm flowing from a district court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative. The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant’s proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.
• When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction.
• Because an accused’s decision whether to testify “seldom turns on the resolution of one factor,” New Jersey v. Portash, 440 U.S. 450, 467 (1979) (Blackmun, J., dissenting), a reviewing court cannot assume that the adverse ruling motivated a defendant’s decision not to testify. In support of his motion a defendant might make a commitment to testify if his motion is granted; but such a commitment is virtually risk free because of the difficulty of enforcing it.
• The preferred method for raising claims such as [petitioner’s] would be for the defendant to take the stand and appeal a subsequent conviction . . . . Only in this way may the claim be presented to a reviewing court in a concrete factual context.
• We hold that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.
• Notes:
• 4. Luce establishes the procedure to be followed in federal criminal prosecutions, but states can follow Cook if they choose. A number of states do just that, rejecting Luce. See People v. Moore, 156 A.2d 394, 346 (N.Y. 1989); Commonwealth v. Jackson, 561 A.2d 335 (Pa. Super. 1988); State v. McClure, 692 P.2d 579, 583-584 & n.4 (Or. 1984). In one state, the Rule expressly provides that defendant need not take the stand to preserve the claim of error. See Tennessee Rule 609(e) (“reasonable written notice” of intent to impeach by prior convictions must be given in advance of trial, and court “may rule” on admissibility prior to trial “but in any event shall rule prior to the testimony of the accused,” who “need not actually testify at the trial to later challenge the propriety” of admitting the conviction). But see Walker v. State, 790 A.2d 1214 (Del. 2002); State v. Wickham, 796 P.2d 1354, 1356 (Alaska, 1990); People v. Finley, 431 N.W.2d 19, 24 (Mich. 1988) (all following Luce).

8.5 [Credibility] Character Witnesses & Prior Inconsistent Statement

c. Character Witnesses

• [CB] The third way of suggesting lack of veracity is to introduce testimony by a character witness that the witness in question (we may call him the "principal witness") is untruthful. FRE 608(a) authorizes testimony of this sort. Here too the Rules expand common law tradition by permitting "opinion" as well as "reputation" testimony (FRE 405 does likewise in the case of character evidence used to prove out-of-court conduct), meaning that the character witness may say what he personally thinks of the veracity of the principal witness.
• [CB] The foundation for opinion testimony is substantially the same, except that what is needed is a period of personal acquaintance.
• [CB, end of the quote] Therefore, we believe the community in which the witness worked, the law office of [character witness] Cory in this instance, was a proper locality in which to prove [principal witness] O'Toole's reputation or character for truthfulness or untruthfulness. We do not imply that such character in the community in which she lived might not have been proved.

[Generally limited to LAY opinion under FRE 701, but Consider FRE 702 possibility]

• [CB] Admitting opinion testimony suggests at least the possibility that experts might testify-perhaps psychiatrists or psychologists. But such testimony is seldom admitted, and modern cases repeatedly uphold trial court rulings excluding proffered psychiatric testimony. *** But there are exceptions to this pattern. One outstanding exception to the pattern is an old and famous case-the prosecution of Alger Hiss for perjury. See United States v. Hiss, 88 F. Supp. 559 (S.D.N.Y. 1950) (admitting defense psychiatric testimony on mental condition of main prosecution witness Whittaker Chambers; his credibility was "one of the major issues upon which the jury must pass," and insanity bears importantly on question of credibility).
• Malavet:
  • Using the Hiss case as a precedent is like using the trial of Bruno Richard Hauptman for the murder of Charles Lindbergh's son as an example of proper criminal procedure.
• [CB, note 2] Some courts admit expert testimony concerning the trauma suffered by victims of rape or child abuse, and such testimony sometimes has the effect of bolstering credibility. See Notes on Proving Truthfulness (Chapter 8C2, infra).
• [CB] 3. Suppose that the party who calls Grace Gardner wants to cross examine Coach Jones about particular instances of good conduct in Gardner's life, reflective of truthfulness. "Coach Jones," counsel might say, "have you heard that Grace Gardner has for years acted as faculty treasurer in the school where you both teach and that she has rendered scrupulously correct accounts year after year?" Is such a question proper under FRE 608? [YES, FRE 608(b)(2).] Why do you suppose that such questions are seldom asked? [Because they open the door to rebuttal.]

Prior Inconsistent Statement

• [CB] Almost always a witness has made previous statements on the subject of her testimony, if only because a lawyer seldom calls someone without talking to her first. If her testimony differs on some point from her prior statements, the attacking party may cross-examine on these statements [FRE 613(a)] and (subject to some conditions) prove them by "extrinsic evidence" (testimony by other witnesses) [FRE 613(b)].
• [How do you know?]
  [CB] A moment's reflection explains why prior statements are so commonly known to the attacking party: In civil cases many witnesses give depositions that produce a permanent record of what they have said; in criminal cases key witnesses for the prosecution testify before grand juries or in preliminary hearings; insurance investigators regularly (often promptly) seek out witnesses and obtain formal written or recorded statements, and careful lawyers often send investigators out for the same purpose; the prosecuting attorney follows a similar practice, and statements obtained in this way must be turned over to the defense;
• [CB] The message of FRE 613(b) is more complicated. If a prior inconsistency is proved by "extrinsic evidence," generally the witness must have an opportunity "to explain or deny" it (unless "the interests of justice otherwise require"), and the adverse party (usually the one who called the witness) must have a chance to interrogate her. Note that sequence is not specified:

Problem 8-E: He's Trying to Sandbag Us!

• Authors' Answers
• If Welch is Immediately Available
  As the text points out, the Rule does not specify sequence, and is satisfied if Welch has "an opportunity to explain or deny" his prior statement (and Plimpton has "an opportunity to interrogate" Welch) after Murphy testifies to what Welch said. If Welch is sitting in the courtroom, it is inconceivable that the trial judge would block Murphy's testimony. Welch can resume the stand after Murphy testifies, and Plimpton can question him then. The flexibility of FRE 613(b) would be lost if the judge refused to recall Welch.
• Unavailable or Available with Difficulty
  What if Welch has been excused, and can only be returned to the stand by a second subpoena? At the least, the result is expense, delay, and an unhappy witness ("Why couldn't you have asked these questions when I was here before?"). And what if Welch is truly unavailable (he joined the French Foreign Legion)? To put it another way, who pays the price if the opportunities guaranteed by FRE 613(b) cannot be afforded (easily or at all)?
• Ordinarily a trial judge inquires of the parties, before excusing a witness, whether there is further need for his testimony. This inquiry should usually avoid the problem here discussed, even though the judge is not likely to ask specifically whether the adverse party plans to offer impeaching evidence that might call for explanation.

Malavet: Think of alternatives short of exclusion.

In a one-day trial, where the witness has gone home, recall may not be practical, and Murphy's testimony may likely be excluded. However, in a long, complex trial, you should consider alternatives such as having the defense pay for the witness to be recalled, if it is expensive (say the witness traveled from another city or country). Also, courts have received testimony via satellite.

• [CB] 1. Or does FRE 611(a) authorize the trial judge to require the attacking party to raise any prior inconsistency on cross, so FRE 613(b) is satisfied, even though the latter does not require this sequence? THE AUTHORS EXPLAIN: FRE 611 grants plenary authority in the judge to control "the mode and order of interrogating witnesses and presenting evidence."
• [Note the two case examples given in note 2.]
• [CB] 3. Recall from Problem 3-C ("The Blue Car Ran a Red Light") that the impeaching use of prior inconsistent statements is considered a nonhearsay use.*** So we live still in a world in which many prior inconsistencies may be admitted to impeach, but not as substantive evidence.

Cross-reference note 4 to our discussion of FRE 408 and 410.

Case: U.S. v. Webster

• Appeal of Criminal Conviction
  • The defendant, Webster, was convicted of aiding and abetting the robbery of a federally insured bank and receiving stolen bank funds, was sentenced to nine years in prison, and appeals. Only one issue need be discussed.
• Error in Impeachment of Prosecution Witness King
• Although the court instructed the jury that it could consider the [prior inconsistent] statements [implicating the defendant] only for purposes of impeachment, …government should not be allowed to get inadmissible evidence before the jury by calling a hostile witness and then using his out-of-court statements, which would otherwise be inadmissible hearsay, to impeach.
• Witness King: The Bank Robber
• The government called the bank robber, King (who had pleaded guilty and been given a long prison term), as a witness against Webster.
• Factual Testimony and Impeachment
• King gave testimony that if believed would have exculpated the defendant, whereupon the government introduced prior inconsistent statements that King had given the FBI inculpating Webster.
• [I]t would be an abuse of [FRE 607],
• in a criminal case, for the prosecution to call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence–or, if it didn’t miss it, would ignore it.
• Substantive TOMA  Purpose
• The purpose would not be to impeach the witness but to put in hearsay as substantive evidence against the defendant, which Rule 607 does not contemplate or authorize.
• Subterfuge Prohibited by the Hearsay Rule
• We thus agree that “impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible.”
• TOMA and Non-Truth: Bad or Good Faith
• But it is quite plain that there was no bad faith here. Before the prosecutor called King to the stand she asked the judge to allow her to examine him outside the presence of the jury, because she didn’t know what he would say. The defendant’s counsel objected and the voir dire was not held. We do not see how in these circumstances it can be thought that the prosecutor put King on the stand knowing he would give no useful evidence. If she had known that, she would not have offered to voir dire him, as the  voir dire would have provided a foundation for defense counsel to object, under Morlang, to the admission of King’s prior inconsistent statements.
• Graham: More than Good Faith Showing
• the government may not impeach a witness with his prior inconsistent statements unless it is surprised and harmed by the witness’s testimony. (Prof. Graham)
• The good-faith standard strikes a better balance; and it is always open to the defendant to argue that the probative value of the  evidence offered to impeach the witness is clearly outweighed by the prejudicial impact it might have on the jury, because the jury would have difficulty confining use of the evidence to impeachment. See FRE 403.

Case: Harris v. New York (Use Miranda-violative statements to impeach).

Please refer to the slides posted on the course Canvas page.

Case: Jenkins v. Anderson (5th Amendment and Use of Pre-Arrest Silence)

This case is now a note. Please refer to the slides posted on the course Canvas page.

8.4. Contradiction

Problem 8-F: This old problem is the basis for the George and Ernie discussion.

Note that contradiction is not really directly addressed in the rules. But it is simple logic that a witness cannot be allowed to go unchallenged when there is evidence that directly contradicts what he or she has said on the stand.

• [CB| Impeaching a witness by contradiction entails a showing that something he said in his testimony is not so. Sometimes the impeachment is done by cross-examination, as questions force the witness to admit that he erred (even lied) on some point, but often it is accomplished by extrinsic evidence (testimony or something else, like a writing or recording), which for convenience we may call counterproof.

Note that if we label extrinsic evidence as counterproof, we are allowing its use for the form of impeachment known as contradiction. If we label it "collateral" we are excluding it.

• [CB] On direct examination, George testifies that (1) Ernie caused the accident by suddenly backing up into the car driven by Florence after she had come to a full stop, (2) he (George) saw the accident from the curb and first met Florence when she spoke to him afterward about what he had seen, and (3) he was returning from making a purchase at Jason's Drugs when he saw the accident. During his case-in-rebuttal Ernie offers testimony (a) by Hal that Ernie's car was standing still when Florence ran into him, (b) by Ike (who is acquainted with George) that Florence and George had been seeing each other socially for at least a year prior to the accident, and (c) by Jason that his drugstore was closed for remodeling on the day of the accident.
• [CB] In doing so, courts generally recognize that all contradicting counterproof has some impeaching effect but letting it in only if it has additional relevance in the case-some relevance independent of its contradicting effect. Three kinds of counterproof may be discerned in the cases:
• [CB] The first is counterproof that not only contradicts but also tends to prove a substantive point, as is true of Hal's testimony that Ernie's car was standing still at the time of the accident. Here the counterproof ordinarily gets in, as it would even if it did not have contradicting effect, for it goes to the merits of the case.
• [CB] The second is counterproof that not only contradicts but tends to prove some other impeaching point, as is true of Ike's testimony that Florence and George have been seeing each other. Here too the counterproof usually gets in, as would be true once again even if it did not have contradicting effect, for it tends to show bias. (Recall that bias may be proved by extrinsic evidence
• [CB] The third is counterproof that only contradicts, as is true of Jason's testimony that the drugstore was closed on the day of the accident. Here the evidence is usually excluded, for it has no relevancy apart from contradicting the witness. The fact that it catches George in an error or lie (who knows whether he has forgotten about the errand he was on that day or lied about it?) would not be viewed as reason enough to admit the evidence.
• [CB] To sum up: Courts generally exclude counterproof that contradicts only on a collateral point. [Hence, the Officer's testimony in Problem 8-G would likely be considered collateral, and thus excluded. The waiter's testimony on the other hand, directly contradicts the alibi witness' statement that he and the defendant were in this bar in Oregon while the crime was being committed in Seattle.]
• [CB] Why contradiction? Reconsider what you've just read. Doesn't it suggest that counterproof gets in to contradict only if it could get in anyway? Then why recognize "contradiction" as a fifth method of impeachment, rather than just an opportunity for making arguments to the jury?
• [CB] One is that the contradicting effect of counterproof justifies departing from normal trial sequence. [NOTE THE ILLUSTRATION.]
• [CB] The other is that the contradicting effect of counterproof justifies admitting some evidence that would otherwise be excluded. [NOTE THE ILLUSTRATION.]
• [CB] To avoid wasting time on trivia, we bar impeachment on collateral matters, admitting only counterproof that has dual relevancy in the case. But then counterproof gets in that would not otherwise come in at all, just because it contradicts.
• [CB] Procedural morass. If you look through the Federal Rules, you will find that the subject here discussed is hardly mentioned at all.
• [CB] The concerns that lead to exclusion of counterproof that contradicts on collateral points are very much the concerns that find expression in FRE 403 and 611, and these can be and are read to limit this form of impeachment.

Contradiction and FRE 608(b) (A point of emphasis and care):

• [CB-587] A point of confusion?
• [CB-587] FRE 608 doesn’t apply. Now ask yourself this question: Why doesn’t FRE 608(b) prevent Ernie’s lawyer from offering extrinsic evidence that Florence has had previous accidents, after she has testified that she never had an accident before?
• The answer is that FRE 608(b) doesn’t apply to impeachment by contradiction, except in one narrow situation. Instead, FRE 608(b) regulates only attacks on “character for truthfulness.” It is for that reason that FRE 608(b) does not block Ernie’s lawyer from proving by extrinsic evidence that Florence had previous accidents. See United States v. Magallanez, 408 F.3d 672 (10th Cir. 2005) (FRE 608 does not block government from calling witness to contradict defendant’s testimony); United States v. Opager, 589 F.2d 799, 801-802 (5th Cir. 1979) (FRE 608 is “limited” to cases involving character attacks; it is “inapplicable” to evidence offered to impeach by contradiction).
• [CB-588] The narrow situation, in which FRE 608(b) does affect impeachment by contradiction, is this one: After a party cross-examines a witness on nonconviction misconduct in order to suggest untruthfulness, FRE 608(b) blocks use of “extrinsic evidence” to prove the misconduct. If the witness has denied the misconduct when asked about it and the attacking party is stuck with the answer, then FRE 608(b) blocks impeachment by contradiction in what amounts to one narrow situation.

Problem 8-F: That's Just Collateral, Your Honor

• Authors' Answers, with my comments:
  • Testimony by Officer Kinney seems excludable under the collateral matter bar. While testimony by Samuels has a collateral aspect, it should be admitted.
  • Prosecution Contradiction Witness Officer Kinney: Fully credited, this testimony shows (1) Oswald was in Seattle for several days within three weeks of the crime, and (2) Ardiss may have been wrong in saying that Oswald was in the Jolly Roger "every day during the weeks" before July 14th. [The officer says the saw defendant on June 27.] ***
  • In short, Kinney's testimony does not tend to prove a substantive point, so it is "collateral" [as opposed to contradicting counterproof] when offered during the state's case-in-rebuttal to contradict what Ardiss said during the defense case.
• Prosecution Counterproof Witness Samuels:
  • Making likely assumptions (the Jolly Roger is a normal restaurant, not a huge place with hundreds of tables; Samuels waits tables during the times Ardiss mentions), Samuels should be allowed to testify. If he was waiting tables on July 14th, then fully crediting his testimony supports an inference that Oswald was not there, and his alibi collapses. ***
  • But if the prosecutor can prove Ardiss wrong in so much of what he said, then we have that kind of collateral counterproof that really does "convincingly suggest that [Ardiss] must be lying".
  • Finally, we need to take into account that neither human perception nor human expression can attain computational precision: It would be pointless and impractical to force Ardiss to testify only on the one narrow point (Oswald was in the Jolly Roger on July 14th), and likewise pointless and impractical to force Samuels' counter-testimony into such a mold (Oswald was not in the Jolly Roger on July 14th).
• Malavet:
  • In the actual case, the prosecution only presented the testimony of the officer to the effect that he saw defendant in Seattle one month before the crime. There was no waiter. The trial court allowed the officer's testimony. The appellate court held that the testimony was collateral and that its admission was reversible error.
• The Decision stated:
  • "In the instant case, the state's case apparently rested upon an identification of the defendant by witnesses at the scene of the crime. The defense apparently rested upon alibi. The state seemingly considered the testimony of witness Ardiss sufficiently credible to require this attack. The defendant was convicted. It is difficult, therefore, to classify admission of the testimony in question trivial, formal, academic, or harmless, and to conclude that such did not affect the outcome of the case. The alternative is that it was prejudicial." We so hold. State v. Oswalt, 381 P.2d 617 (Wash. 1963).

Case: United States v. Havens

Two lawyers involved in a cocaine-smuggling ring and one of them takes the witness stand to deny it and is impeached with evidence that was seized in violation of his Fourth Amendment rights.

New Problem 8-G: "She Handed Me the Heroin" (prior consistent statements).

• The Casebook Authors.
  • Heart of the Matter.  Arla’s cross-examination of Turner suggests both that he does not remember (perhaps never knew) who was carrying the sample and that he is making things up.  Hence evidence of a prior similar statement might be relevant to repair:  Proof that he said before what he says now suggests that he did once know the truth (so his testimony is not just the product of confusion), and might even suggest that his testimony does not reflect improper influence or motivation.
  • The defense argues that FRE 801(d)(1)(B) governs.  It paves the way only for consistent statements rebutting imputations of “recent fabrication or improper influence or motive.”  Hence Turner’s statement cannot be admitted to refute suggestions of memory loss or lack of knowledge.  This argument should fail.  The reason is that FRE 801(d)(2)(B) governs only substantive use of consistencies.  Their use to repair credibility is subject only to general principles of relevancy, and Turner’s prior consistency is relevant to suggest that he did take note of the person who produced the sample, and his testimony is not just confused recollection (note 1 after the Problem).
  • The defense also argues that the consistency cannot be admitted to rebut the suggestion of influence or motive because Turner had the same motive when he spoke before that he has at trial – to catch Arla in the net with Clair.  Under Tome, the defense continues, a consistency cannot be admitted at all unless it was made before the motive to fabricate arose.  This argument should also fail because it too broadly construes the idea of motive to reach back to the time of arrest:  Taking this approach would exclude virtually every consistency by a law enforcement officer, and suggest that all are motivated to convict everyone they arrest.  Arguably Turner’s motivation came into being only when Clair was discovered to be carrying drugs (which raised the first doubt that Arla could be convicted of an offense in which she seemed to participate), and that discovery came after Turner’s statement.  Arguably the requirement that the prior consistency predate the alleged motive is too hard to apply and should be jettisoned in any event:  The matter goes only to credibility (the same points being supported by admissible testimony), and the triers of fact should get the evidence to make of it what they will.  
• Cases
  • See United States v. Quinto, 582 F.2d 224 (2nd Cir. 1978)
  • See United States v. Obayagbona, 627 F. Supp 329, 337-338 (E.D.N.Y. 1985).

OLD Problem 8-G: "Have You Ever Sold Narcotics Before"

• MALAVET:
• Cross-reference to our discussion of Walder v. US in Harris v. New York.
  • Note the important differences in that in Walder
    • FIRST: defense counsel, direct examination extracted the statement "I have NEVER sold any narcotics to anyone in my life"
    • SECOND there was no alibi defense in Walder, just the absolute denial. Thus, the substnative defense, and thus the posture of the case is different.
    • Now, see how that makes all the difference in the case and how the dangers associated with Character evidence are now again implicated.
• AUTHORS COMMENTARY
  • Heart of the Matter.  The cross is improper.  Young’s testimony that he did not commit the offense is not character evidence inviting cross about specific instances under FRE 405(a).  Of course the “bad character” exposed by the question is relevant (if he had sold narcotics before, this fact suggests a disposition to do so, making it more likely that he did this time), but FRE 404 bars such evidence, and it is not justified as counterproof that contradicts.  Even if Young answers by denying the imputed charge, the counterproof (now extrinsic evidence – testimony by agents) should still be excluded.  The denial fairly meets the improper question.  We cannot tolerate a system that leaves a defendant, faced with such a question, no choice but to concede misconduct (if that be the truth), for the result is to empower the prosecutor to knock down the barrier against this strategy that is put up by FRE 404-405.  One might argue that defendant’s power to object and strike the question suffices, and allowing Young to get away with a false response (“I never have sold narcotics”) goes too far.  But on these facts, prosecutorial abuse is clear and flagrant, and even a perjured denial of what should never have been asked should not open the door to more excludable evidence.  A wiser solution would be to strike both question and response. 

Constitutional Issues Summary
Comment/Perspective Note by the Casebook Authors

• Harris, Harvey, Havens (3 Hs Limiting 3 Ms)
  [This is a very good note by the Authors of our Casebook]
  • Broadly speaking, the subjects of Havens and Harris (which you have read) and the Harvey case (which you have not seen) are exclusionary doctrines that discourage law enforcement from violating citizen rights. These are attempts to control police by excluding from criminal trials evidence obtained in violation of rights secured by the Fourth, Fifth, and Sixth amendments (covering, respectively, searches and seizures, self-incrimination, and right of counsel). Courts did not always exclude evidence seized in violation of constitutional rights, although the practice began in the federal system more than a century ago. See Weeks v. United States, 232 U.S. 383 (1914) (requiring exclusion, in federal criminal trials, of evidence seized in violation of the Fourth Amendment). In the days of Weeks, it was thought that most provisions in the Bill of Rights applied only to the federal government, not to the states. Gradually most of these were “incorporated” into the Due Process Clause of the Fourteenth Amendment (which does apply to the states), and now these three exclusionary doctrines apply to the states too. Harris and Havens address the question whether these doctrines block use of illegally seized evidence to impeach by contradiction testimony by the accused (both say no, and allow the impeaching use of such evidence). All three doctrines are developed in detail by many cases over many years, so the memory aid suggested here does not tell the whole story. Still, it may help if you bear in mind that three salient opinions on the exclusionary doctrines have defendant names beginning with M and three opinions on the impeachment question have defendant names beginning with H: Mapp and Havens (Fourth Amendment); Miranda and Harris (Fifth Amendment); Massiah and Harvey (Sixth Amendment). Here are the full cites:
  • Mapp v. Ohio, 367 U.S. 643 (1961) (Fourth Amendment exclusionary doctrine applies to states);
  • United States v. Havens, 446 U.S. 620 (1980) (evidence seized in violation of Fourth Amendment can be used to impeach);
  • Miranda v. Arizona, 384 U.S. 436 (1966) (Fifth Amendment requires warnings before custodial interrogation);
  • Harris v. New York, 401 U.S. 222 (1971) (statements taken in violation of right to [Miranda] warning may be used to impeach);
  • Massiah v. United States, 377 U.S. 201 (1964) (Sixth Amendment right to counsel requires exclusion of statements taken from defendants in custody who have lawyers);
  • Michigan v. Harvey, 494 U.S. 344 (1989) (statements taken in violation of Sixth Amendment right of counsel can be used to impeach).
• MALAVET
  • We will also see that the Sixth Amendment Confrontation Clause is also applied to the states under the Due Process Clause of the 14th Amendment. Pointer v. Texas, 380 U.S. 400 (1965).
  • Fifth Amendment Silence Cases
    (summarized in the text of the opinion at page 602 of the casebook, 8th Edition).
  • Doyle v. Ohio, 426 U.S. 610 (1976)
    • Fifth Amendment right to remain silent protects defendant from some but not all impeachment
    • Post-arrest, post-Miranda silence cannot be used to impeach
  • Jenkins v. Anderson, 447 U.S. 231 (1980)
    • Pre-arrest, pre-Miranda silence may be used to impeach