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Alain Leibman writes:

In an important decision for the right to a fair trial, the Second Circuit recently held that a detective -- testifying against the only charged defendant in a case involving the seizure of weapons from a minivan occupied by several persons besides that defendant -- could be impeached with prosecutors' initial decision to charge other occupants of the vehicle with possession of those firearms.

In United States v. White, 2012 WL 3734425 (2nd Cir., August 30, 2012), the central issue in the felon-in-possession trial was possession: which of several passengers actually had possessed the firearms in question? The Court of Appeals vacated the conviction because of erroneous evidentiary rulings made by the district judge, with significant consequences for other cases. In the first ruling, the trial judge precluded defense counsel from cross-examining the lead detective involved in the arrest of White and the weapons seizure from the minivan on the basis that state prosecutors had initially charged other occupants of the vehicle with possessing those weapons. The court had reasoned that charging decisions rest on a number of considerations which do not necessarily speak to the issues of guilt or innocence of the person on trial. Here, however, defense counsel argued, the initial charging decision was simply inconsistent with the decision to charge White alone when his defense was that the guns were not his. The Court of Appeals agreed, rejecting the authorities relied upon by the court below, including United States v. Re, 401 F.3d 828 (7th Cir. 2005), and held that charging decisions may be proper subjects for cross-examination and so may not be reflexively excluded. In White's case, the inconsistent earlier charging decision was "plainly relevant" to the question of possession, and under Federal Rule of Evidence 403, its probative value was not substantially outweighed by the risk of jury confusion.

In this second erroneous ruling, the trial court had precluded the defense from cross-examining the same detective under FRE 608(b) on the basis of his testimony in an unrelated case. The trial judge in the unrelated case had in a number of respects found the detective's testimony to be non-credible, but the White trial judge would not allow those findings of untruthfulness to be used in the present cross-examination. The Second Circuit held that this, too, was error, reaffirming its earlier decision in United States v. Cedeno, 644 F.3d 79 (2nd Cir.), cert. denied, 132 S. Ct. 315 (2011). The Cedeno case had set forth a list of factors for courts to consider in determining the admissibility of a prior incident in which the witness's testimony was found non-credible (Cedeno had not yet been decided when the same evidentiary issue arose at the trial in White). In this instance, the district judge in the earlier case had repeatedly found the detective’s testimony "not credible." The government made the specious argument in White that a judge's finding that testimony was "not credible" was not equivalent to a finding that the witness had lied. The Second Circuit easily rejected this argument, saying "A finding that a witness is not credible is not fundamentally different from a finding that the witness lied. It often just reflects a fact finder's desire to use more gentle language." While trial judges retain authority to impose reasonable limits on cross-examination, the court below erred in excluding the prior judge's findings of lack of credibility.

Of course, in the Second Circuit and perhaps elsewhere now, the White and Cedeno decisions open up new avenues of discovery prior to trial. Arguably, defense counsel are entitled to receive not simply Jencks material relating to the testimony at issue in the present trial, and conventional Giglio impeachment material, but any prior testimony of the law enforcement officers involved in the present trial, to be exhaustively mined for any adverse findings or comments by the trial judge regarding the officers' earlier truthfulness or lack of truthfulness.

It is also worth noting that, in vacating White’s conviction and remanding based on the above two significant errors, the Court of Appeals explicitly declined to decide another interesting issue raised by defense counsel. Counsel had also sought to cross-examine the detective based on statements made in the government's brief in opposition to a suppression motion in the same case, statements which described a sequence of events regarding the finding of the weapons which was inconsistent with the testimony of the detective; counsel had argued at the inconsistent statements in the brief were admissible as an admission by a party-opponent under FRE 801(d)(2). The only argument the government could muster in opposition, it appears, was that the admission of the contrary statements from the brief would require the lead prosecutor to take the witness stand to explain why he wrote what he did (and, presumably, why either he or the detective got the facts wrong). Why this step, even if necessary, would be an impediment to the defendant’s exercise of his right to full cross-examination and his entitlement to a fair trial is entirely unclear. However, as noted, the Court of Appeals did not reach this issue.
 

(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)

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We previously explored  the wonderfully amorphous evidentiary doctrine known as “impeachment by contradiction.” Sitting outside, but in parallel with, the Federal Rules of Evidence, the doctrine creates an exception to FRE 608(b) . The evidence rule generally limits a cross-examiner to matters relating to the truthfulness of a witness, together with certain criminal convictions under FRE 609 . However, under appropriate circumstances not spelled out in Rule 608(b), the doors to the courtroom are thrown open and a stream of otherwise extraneous matters can be brought to bear.

Once the witness’s direct testimony has opened that door, then nearly anything which contradicts the witness is fair game. The rationale for broadened cross-examination is to prevent witnesses from engaging in perjury, then using the shield of FRE 608(b) to preclude their successful impeachment with collateral facts.

A recent Eighth Circuit case which does not use the phrase “impeachment by contradiction” nevertheless well illustrates the animating principle. In United States v. Allen, 630 F.3d 762 (8th Cir. 2011), the defendant was charged with possession of an illegal machine gun. As part of its case-in-chief, the government had introduced a video of Allen showing his mother how to fire a machine gun. Presumably in an effort to make that demonstration appear more normal, Allen testified on direct examination that he was familiar with machine guns because of his military service. Had he stopped there, he would have been fine. Instead, Allen then testified that he was very proud of his military service and hoped to share his experiences with his children, and concluded his testimony by again mentioning his pride in his military service. In the view of the district court, this lily-gilding emphasis on the quality of his service allowed the government to cross-examine Allen about his arrests while in the military and his less-than-honorable discharge, neither of which meet the Rule’s criterion of matters going to truthfulness.

The Eighth Circuit found no abuse of discretion. Allen’s direct testimony opened the door to his being cross-examined on matters which contradicted that volunteered testimony, even if it would normally have been error to allow such impeachment otherwise.
 

(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)

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The rules of evidence to which most frequent resort is made in impeaching witnesses with evidence of misconduct are FRE 608(b) and FRE 609.  Rule 608(b) provides that specific instances of the witness's conduct to show untruthfulness, other than conviction of a crime under 609, may not be proved extrinsically; that is, the questioner must generally take the witness's answer.  Rule 609 admits extrinsic evidence of a criminal conviction under certain circumstances.

But what of cross-examining a witness about the details of the conduct underlying his criminal conviction?  The Ninth Circuit has recently held that, where misconduct led to a conviction, Rule 609 is the exclusive vehicle for the use of that conviction and the examiner is limited to admission of the conviction itself and may not inquire into the underlying details.  United States v. Osazuwa, 564 F.3d 1169 (9th Cir. 2009).  Osazuwa was originally convicted of bank fraud and his first, remarkably skilled attorney managed to win a sentence of one day in jail followed by supervised release, plus restitution.  However, Osazuwa could not stand his good fortune, and violated his supervised release by not paying his restitution, resulting in a 90 day sentence.  Exhibiting consistency, if not good sense, Osazuwa was days away from completing his new sentence when he allegedly assaulted a prison guard, resulting in the instant prosecution.

The key witnesses at trial were Osazuwa and the guard, a classic credibility contest.  On direct examination, Osazuwa's attorney brought out the prior conviction.  But In cross-examining Osazuwa, the prosecutor was allowed to probe the details of the bank fraud, asking the witness-defendant several times about how he lied in connection with misusing another's credit card.  The court of appeals reversed the resulting assault conviction, holding that the trial court had abused its discretion in allowing this impeachment.

The Ninth Circuit joined several other circuits in reading Rule 608(b) to exempt from its coverage entirely conduct that was the basis for a conviction, leaving convictions solely to the province of Rule 609.  United States v. Lightfoot, 483 F.3d 876 (8th Cir.), cert. den., 128 S. Ct. 682 (2007); United States v. Parker, 133 F.3d 322 (5th Cir.), cert. den., 523 U.S. 1142 (1998); Mason v. Texaco, Inc., 948 F.2d 1546 (10th Cir. 1991), cert. den., 504 U.S. 910 (1992).  

The bank fraud conviction could be proven extrinsically under Rule 609(a)(2) as a crime of dishonesty, to be sure, but the scope of inquiry into prior convictions is limited.  Collateral details may not be the subject of inquiry to a witness, unless the witness "opens the door" by minimizing his misconduct or otherwise testifying falsely.  Since Osazuwa admitted the conviction on direct, the entire cross-examination into its details was improper and warranted reversal.

For Third Circuit practitioners, the contrary case of Elcock v. Kmart Corp., 233 F.3d 734 (3d Cir. 2000) should be noted.  There, plaintiff's expert witness had a prior conviction under 18 U.S.C. § 641 for embezzling government funds, but the trial judge would not allow further impeachment with the underlying offense details.  While upholding the trial judge's decision to limit impeachment as an appropriate exercise of discretion, the court of appeals, in an opinion by Chief Judge Becker, expressed its disagreement with the limitation imposed. All parties agreed that the embezzlement conviction itself was properly admitted under Rule 609(a)(2), but the court of appeals did not view that Rule as the exclusive avenue for use of evidence of conviction, looking to Rule 608(b) to define the discretionary scope of the related, detailed impeachment.  The court observed that the amount of money stolen by the expert and the "exact way" in which it was done was "certainly relevant to prove the extent of [his] dishonesty."  Id. at 753.  "A jury could rationally conclude that one who embezzles a million dollars from the Government over a long period of time has a worse character for veracity than a person who steals five dollars once."  Ibid.  The Osazuwa court did not cite Elcock, which remains good law in the Third Circuit.

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In a decision issued on April 29th, the Supreme Court -- in a decision which thematically follows from the previous post regarding the breadth of the "impeachment by contradiction" doctrine -- has reaffirmed the principle that a defendant may be impeached with a statement obtained from him in violation of the Sixth Amendment. Kansas v. Ventris, 556 U.S. ___, No. 07-1356 (Apr. 29, 2009).

Defendant Ventris was convicted of various charges in state court after the jury was allowed to hear from a jailhouse informant, who testified that Ventris admitted in his jail cell after arrest on these charges that he had committed a robbery and murder. As Ventris's Sixth Amendment rights had attached, the statement was plainly obtained in violation of the Sixth Amendment under Massiah v. United States, 377 U.S. 218, 224 (1964) and could not be used in the State's case in chief. The prosecution did, however, persuade the trial court to allow use of the statement to cross-examine Ventris after he testified that another defendant had committed the crime.

The Supreme Court held that the tainted statement was permissibly used to impeach Ventris's inconsistent testimony at trial. In a majority opinion by Justice Scalia, the Court explained that "[o]ur precedents make clear that the game of excluding tainted evidence for impeachment purposes is not worth the candle … It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can … provide himself with a shield against contradiction of his untruths." Slip op. at 6.
 

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The concept of "impeachment by contradiction" does not appear in the Federal Rules of Evidence. A vestige of the common law of evidence, the doctrine, however, survived the codification of the FRE and constitutes a valuable overlay and weapon for cross-examiners. Although FRE 609 may not permit convictions to be used which do not meet the requirements of the Rule and FRE 608 may not allow the prior bad acts or convictions to be used because they do not relate to untruthfulness, the principle of "impeachment by contradiction" may throw wide open the door to the use of otherwise disqualified materials. The Ninth Circuit Court of Appeals recently examined the applicability of the doctrine in the context of a political corruption prosecution. United States v. Kincaid-Chauncey, 556 F.3d 923 (9th Cir. 2009).

Defendant Kincaid-Chauncey was a Nevada county commissioner charged with receiving bribes from a strip-club owner in exchange for favorable votes on land use matters. The alleged bribe-payor, Galardi, testified on direct examination to making payments to the commissioner, but on cross-examination was asked about payments to nine other public officials. Since Galardi claimed to have made payments to the nine, Kincaid-Chauncey's attorney sought to call each of the nine as defense witnesses to presumably contradict Galardi, showing him to be a liar for all purposes including his inculpation of Kincaid-Chauncey. But the district court allowed the defense to call only two of the witnesses implicated in the cross-examination testimony of Galardi, and Kincaid-Chauncey argued on appeal that this limitation was error.

The Ninth Circuit noted the continuing vitality of the doctrine of "impeachment by contradiction," characterizing it as "part of the general body of evidentiary law." Id. at 932 n.8. The rationale for the doctrine is to prevent witnesses from engaging in perjury, then using the prohibitions of FRE 608 to preclude impeachment with collateral facts and thereby concealing the perjury. Id. at 932. The only limitation on the scope of impeachment materials is imposed by FRE 403. See United States v. Gilmore, 553 F.3d 266, 271 (3rd Cir. 2009).

However, a witness may generally be impeached by contradiction only when the perjurious statement in question has been offered on direct examination; otherwise, a wily cross-examiner could open up broad areas for impeachment simply by posing clever questions on cross. Id. at 932-33. (The Third Circuit has similarly limited the doctrine to impeachment of statements volunteered by the witness on direct examination. United States v. Pantone,, 609 F.2d 675, 683-84 (3rd Cir. 1979)). Thus, the district court was well within its discretion -- and arguably went beyond the bounds of the doctrine -- by permitting the defense to call only two of nine witnesses to respond to the cross-examination statements of Galardi.
 

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Trial attorneys understand that generally a witness can be impeached with evidence of his or her prior acts going to truthfulness, but only by cross-examining the witness on the point. FRE 608(b) requires the examiner to accept the witness’s answer, and prohibits accomplishing the impeachment extrinsically, through the testimony of a follow-on witness or the admission of a document. Unless the misconduct qualifies as a prior conviction under FRE 609 and can under that Rule be proved extrinsically, the cross-examiner may enthusiastically wave a document before the witness or accuse loudly and longly, but the witness can always retreat to the safety of a denial, confident that no other witness or document will be later offered to contradict.

Unless, that is, the prior act in question is an earlier inconsistent statement of the witness, which can be proven extrinsically notwithstanding the wording of Rule 608(b). The court in United States v. Rodriguez, 539 F. Supp.2d 592 (D. Ct. 2008) allowed the government to call two rebuttal witnesses to contradict the testimony offered by defendant Rodriguez regarding alleged drug deliveries. The defendant had argued that Rule 608(b) prohibited the extrinsic evidence which contradicted him.

The court held that, although not explicitly authorized by Rule 608(b), the doctrine of impeachment by contradiction is an exception to the Rule's general bar against extrinsic impeachment. There is, of course, another theory under which to admit extrinsic proof of a prior inconsistent statement by the witness, albeit not one discussed by the court. FRE 613(b) requires that the witness be given an opportunity to explain or deny a prior inconsistent statement, but then permits its proof extrinsically.

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