Impeachment of convicted witness may be limited to fact of conviction alone
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.
