3 INTRODUCING AND ATTACKING EVIDENCE FROM WITNESSES 3 INTRODUCING AND ATTACKING EVIDENCE FROM WITNESSES
3.1 Class 5 3.1 Class 5
3.1.1 Merritt & Simmons Textbook Assignment 3.1.1 Merritt & Simmons Textbook Assignment
In the Merritt & Simmons textbook, please read Chapters 14 & 15. There are no distinctions between the Third and Fourth editions in these chapters.
3.1.2 Rule 601 3.1.2 Rule 601
Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.
Excerpt from Advisory Committee Notes:
This general ground-clearing eliminates all grounds of incompetency not specifically recognized in the succeeding rules of this Article. Included among the grounds thus abolished are religious belief, conviction of crime, and connection with the litigation as a party or interested person or spouse of a party or interested person. . . . American jurisdictions generally have ceased to recognize these grounds. . . .
No mental or moral qualifications for testifying as a witness are specified. Standards of mental capacity have proved elusive in actual application. A leading commentator observes that few witnesses are disqualified on that ground. Weihofen, Testimonial Competence and Credibility, 34 Geo. Wash.L.Rev. 53 (1965). Discretion is regularly exercised in favor of allowing the testimony. A witness wholly without capacity is difficult to imagine. The question is one particularly suited to the jury as one of weight and credibility, subject to judicial authority to review the sufficiency of the evidence. 2 Wigmore §§501, 509. Standards of moral qualification in practice consist essentially of evaluating a person's truthfulness in terms of his own answers about it. Their principal utility is in affording an opportunity on voir dire examination to impress upon the witness his moral duty. This result may, however, be accomplished more directly, and without haggling in terms of legal standards, by the manner of administering the oath or affirmation under Rule 603.
3.1.3 Excerpt from United States v. Ramirez, 871 F.2d 582, 584 (6th Cir. 1989) 3.1.3 Excerpt from United States v. Ramirez, 871 F.2d 582, 584 (6th Cir. 1989)
“What must be remembered, and is often confused, is that “competency” is a matter of status not ability. Thus, the only two groups of persons specifically rendered incompetent as witnesses by the Federal Rules of Evidence are judges (Rule 605) and jurors (Rule 606).
The authority of the court to control the admissibility of the testimony of persons so impaired in some manner that they cannot give meaningful testimony is to be found outside of Rule 601.
For example, the judge always has the authority under Rule 403 to balance the probative value of testimony against its prejudicial effect.
Similarly, under Rule 603, the inability of a witness to take or comprehend an oath or affirmation will allow the judge to exclude that person's testimony.
Again though, it is important to remember that such decisions by a trial judge to either admit or exclude testimony will only be reversed for a clear abuse of discretion.”
3.1.4 Excerpt from TOWARD A CRITICAL RACE THEORY OF EVIDENCE 3.1.4 Excerpt from TOWARD A CRITICAL RACE THEORY OF EVIDENCE
by Jasmine B. Gonzales Rose, 101 Minn. L. Rev. 2243 (June 2017)
A. LOOKING BACK: RACE-BASED WITNESS COMPETENCY RULES
Today, evidence rules, doctrines, and policies appear race-neutral, but this was not always the case. In the eighteenth through mid-to-late nineteenth centuries, laws barred people of color from testifying in court, especially if the case involved a white person. For instance, the California Crimes and Punishments Act of 1850 provided that “no black or mulatto person, or Indian, shall be permitted to give evidence in favor of or against any white person.”11 Its civil equivalent similarly directed that “[n]o Indian or Negro shall be allowed to testify as a witness in any action in which a White person is a party.”12 These racial restrictions were not limited to Native and black Americans; they applied to other populations of color as well.13
Most famously, in the 1854 case of People v. Hall, the California Supreme Court held that its witness competency statute barred testimony of witnesses of Chinese descent and all persons who were not white.14 In Hall, a white man had been convicted of murdering a Chinese miner on the basis of testimony by Chinese witnesses.15 The defendant appealed, claiming that the state's racial evidentiary bar prohibiting testimony by blacks, mulattoes, and Indians against whites should be extended to bar the testimony of Chinese people.16 The Supreme Court of California agreed, finding that the statute's reference to “black persons” “must be taken as contradistinguished from White, and necessarily excludes all races other than the Caucasian.”17 Accordingly, the court held that the Chinese witnesses' testimony should have been excluded at trial and reversed the conviction.18
Motivated by white supremacy, the court in Hall recognized the fundamental connection between people's ability to testify in court and their status as full citizens, observing:
The same rule which would admit [non-white people] to testify, would admit them to all the equal rights of citizenship, and we might soon see them at the polls, in the jury box, upon the bench, and in our legislative halls. This is not a speculation which exists in the excited and overheated imagination of the patriot and statesman, but it is an actual and present danger.19
It is not surprising that three years later, a San Francisco court denied a Mexican American man the right to testify at trial.20 Manuel Domínguez was one of California's most distinguished and affluent citizens and served on the Los Angeles County Board of Supervisors.21 Despite his vast landholdings and social and political prominence, he was dismissed as a witness after plaintiff's counsel argued that his Indian blood made him incompetent to testify.22 As mestizos, individuals with a mix of Spanish and American Indian descent, Mexican Americans were barred from testifying on the basis of their race.23
California was not the only state imposing race-based witness competency requirements in the nineteenth century.24 Throughout most of the country, statutes and judicial decrees prohibited blacks and other people of color from testifying in cases in which white people were parties.25 In slave-holding states, as well as several western and midwestern states, this bar was usually based explicitly on race.26 In some northern states, the restrictions focused more on slave status,27 though being black carried a presumption of slave status and thus witness incompetency.28 In some states, such as Delaware, black witnesses were allowed to testify on behalf of a white party against a black party, but the opposing black party could not call a black witness to testify against the white party.29 Irrespective of their articulation, these rules “withdrew the substance of the protection of the laws in many cases and left only the shadow.”30 When people of color were deprived of the ability to testify, whites could abuse, rob, and kill them with near impunity.31
Official race-based witness competency rules were eradicated over 150 years ago.32 Today, evidence laws do not overtly name any race for favored or disfavored treatment. Traditionalists might argue that this means racism has been eliminated entirely from the rules of evidence and that we now have a racially unitary and unbiased evidence system.33 Viewed through colorblind optics, it appears that racial equality has been achieved in evidence law. However, applying CRT to the law of evidence reveals something different: a dual-race evidentiary system still exists in the United States.
Footnotes (Optional):
11
People v. Howard, 17 Cal. 63, 64 (1860) (quoting the California Crimes and Punishments Act of 1850, § 14).
People v. Hall, 4 Cal. 399, 399 (1854) (quoting the California Civil Practice Act, § 394).
Id. at 399, 404; see also Gabriel J. Chin, ‘‘A Chinaman's Chance” in Court: Asian Pacific Americans and Racial Rules of Evidence, 3 U.C. IRVINE L. REV. 965, 967 (2013).
Id.
Id. at 405.
Id. at 404.
See IAN F. HANEY LÓPEZ, RACISM ON TRIAL: THE CHICANO FIGHT FOR JUSTICE 66 (2009); JUAN F. PEREA ET AL., RACE AND RACES: CASES AND RESOURCES FOR A DIVERSE AMERICA 296 (3d ed. 2015).
PEREA ET AL., supra note 20.
Id.
See id.
Nearly all of the southern states and several of the northern states prohibited people of color from testifying against whites. I. Bennett Capers, The Unintentional Rapist, 87 WASH. U. L. REV. 1345, 1377 (2010) (citing THOMAS D. MORRIS, SOUTHERN SLAVERY AND THE LAW, 1619-1860, at 239-48 (1996); Paul Finkelman, Prelude to the Fourteenth Amendment: Black Legal Rights in the Antebellum North, 17 RUTGERS L.J. 415 (1986); Sheri Lynn Johnson, The Color of Truth: Race and the Assessment of Credibility, 1 MICH. J. RACE & L. 261 (1996)).
Alfred Avins, The Right To Be a Witness and the Fourteenth Amendment, 31 MO. L. REV. 471, 473 & n.17 (1966) (stating that many of these statutes are “collected in Senator Sumner's report entitled To Secure Equality Before the Law in the Courts of the United States, [S. REP. NO. 38-25, at 2-6S. REP. NO. 38-25, at 2-6] (1864)”).
Id. at 473-74.
Id. at 473 (citing Rogers' Ex'rs v. Berry, 10 Johns. 132 (N.Y. Sup. Ct. 1813)).
Id. at 473-74 (citing Fox v. Lambson, 8 N.J.L. 275 (N.J. 1826)).
Id. at 474-75 (citing Burton v. Roe, 7 Del. (2 Houst.) 49 (1859)).
Id. at 480 (citation omitted).
See id. at 480-83; Douglas L. Colbert, Challenging the Challenge: Thirteenth Amendment as a Prohibition Against the Racial Use of Peremptory Challenges, 76 CORNELL L. REV. 1, 19 (1990) (“[W]hite people generally had automatic immunity against crimes committed.”). In the post-revolutionary south, “[s]tates rarely prosecuted whites for kidnapping and enslaving free African-Americans because blacks were usually the only witnesses to the crime.” Id. at 21.
In 1864, Congress passed a law that provided, “in the courts of the United States there shall be no exclusion of any witness on account of color.” Stephen A. Siegel, The Federal Government's Power To Enact Color-Conscious Laws: An Originalist Inquiry, 92 NW. U. L. REV. 477, 515 (1998) (quoting Act of July 2, 1864, ch. 210, § 3, 13 Stat. 351); see also George Fisher, The Jury's Rise as Lie Detector, 107 YALE L.J. 575, 672, tbl.3 (1997) (providing a table of the first states to abolish these racial exclusion laws).
See, e.g., ROY L. BROOKS, RACIAL JUSTICE IN THE AGE OF OBAMA 21 (2009) (quoting a traditionalist who believes that “[a]s long as the process is race-neutral ... we can disregard disparate results with the confidence of knowing we have done the fair and just thing”).
3.1.5 Excerpt from Chief Judge Lay’s dissent in United States v. Spotted War Bonnet, 882 F.2d 1360 (8th Cir. 1989) 3.1.5 Excerpt from Chief Judge Lay’s dissent in United States v. Spotted War Bonnet, 882 F.2d 1360 (8th Cir. 1989)
This excerpt, from the dissent in the case described in your text, provides the actual transcript upon which the court based its competence decision.
. . .
Another grave concern in this case, and one which is interrelated to the suggestive and coercive interviewing techniques discussed above, relates to the competency of these very young children [Annie and Skylene] to testify in court.
In laying a foundation for Annie's testimony at trial, the prosecutor asked her a number of simple and basic questions. Annie failed to respond to many of the inquiries and had difficulty remembering certain events. For example:
Q. Last night when you talked to me did we tell you to say anything here today?
A. Yeah.
Q. What did we tell you to say?
A. [No response.]
Q. Can you remember?
A. No.
Q. You don't remember anything about last night?
A. No.
Q. Do you know what it is to tell a lie?
A. No.
* * * *
Q. Do you ever make up stories?
A. [No response.]
Q. Can you answer that one?
A. [No response.]
Q. Can you answer me, Annie?
A. No.
Q. Can you answer me?
A. Yes.
Q. Do you ever make up stories?
A. No.
Q. Are you going to make one up today?
A. No.
Q. Do you promise not to make up any stories today?
A. No.
Transcript at 45–46.
. . .
. . . These children were very young and demonstrated significant difficulty in remembering the events about which they were called to testify. In my judgment it was incumbent upon the trial court to conduct a voir dire in order to determine the children's competency under the circumstances existing in this case. . .
Annie demonstrated significant problems with short term memory. It was imperative that the trial court develop this issue to determine whether Annie was competent to testify in this case.
· Judge Weinstein has observed in his treatise on evidence that it is not enough for a child to demonstrate an understanding of the oath to testify truthfully. A child is not competent to testify unless he or she is also capable of accurate recollection of the events about which he or she is called upon to testify. 3 J. Weinstein & M. Berger, Weinstein's Evidence 601–32 to –35 (1988). Instead, the court treated this issue as a matter relating only to credibility and left it to be decided by the jury.
The record on its face demonstrates that Annie was not competent to testify. It was evident from her failure to answer many of the questions that she was very frightened. More significantly, she was unable to recall past events as demonstrated by her great difficulty remembering what had occurred the night before. Consequently, it is difficult to understand how she could accurately recall something that occurred several years before at a time when she was less than four years old. There is absolutely nothing in the record, brought out by either counsel or by the court, which in any way rehabilitates Annie's very apparent problems with memory and recall.
Indeed, Skylene (as well as Annie) had difficulty with recall of events and facts. For example, Skylene was very confused about her birth date. Transcript at 15, 30. However, far and away the most disturbing aspect of either child's testimony was that neither one demonstrated an independent recollection of the alleged sexual abuse by their father. Skylene and Annie could only recall the content of her discussions with Dr. Curran. Skylene gave the following answers at trial:
Q. * * * Are you remembering what you told Dr. Curran, is that what you're telling us about today?
A. Yes.
Q. So you are not remembering what dad did, you're remembering what you told Dr. Curran?
A. Yes.
Q. You can't remember what dad did, you can only remember what you told Dr. Curran?
A. Yes.
Transcript at 38. Annie also demonstrated an absence of independent recollection of the events at issue in this case:
Q. How long ago did you talk to Dr. Curran?
A. [No response.]
Q. A long time ago?
A. Yes.
* * *
Q. Are you trying to remember what you said to Dr. Curran?
A. Yes.
Q. Is it hard to remember everything you said to Dr. Curran?
A. Yes.
Q. Can you remember things that happened a long time ago or are you trying to remember things you said to Dr. Curran?
A. [No response.]
Q. Are you trying to remember what you said to Dr. Curran?
A. Yes.
Transcript at 77. Neither child could remember the actual events themselves. This is very troubling considering the fact that the children's testimony is the only “direct” evidence offered against the defendant in this case. . . . .
3.1.6 Rule 602 3.1.6 Rule 602
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.
3.1.7. Video Describing How to Establish Witness' Personal Knowledge
Just 3 minutes long!
3.1.8 Rule 603 3.1.8 Rule 603
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.
Excerpt from Advisory Committee Notes:
The rule is designed to afford the flexibility required in dealing with religious adults, atheists, conscientious objectors, mental defectives, and children.
3.1.9 Rule 605 3.1.9 Rule 605
The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.
Excerpt from Advisory Committee Notes:
The rule provides an “automatic” objection. To require an actual objection would confront the opponent with a choice between not objecting, with the result of allowing the testimony, and objecting, with the probable result of excluding the testimony but at the price of continuing the trial before a judge likely to feel that his integrity had been attacked by the objector.
3.1.10 Rule 611 3.1.10 Rule 611
(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
3.1.11 Rule 614 3.1.11 Rule 614
(a) Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.
(b) Examining. The court may examine a witness regardless of who calls the witness.
(c) Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.
United States v. Tilghman United States v. Tilghman
This case illustrates the outer limits of the judge’s power under Rule 614. (Note that the Comprehension Quetsions for this class will ask you:
Based on your reading of the Tilghman case, what is a judge NOT allowed to do?
Based on your reading of the Tilghman case, what IS a judge allowed to do?
UNITED STATES of America, Appellee, v. Warren P. TILGHMAN, Appellant.
No. 96-3114.
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 5, 1997.
Decided Feb. 3, 1998.
*415Lisa B. Wright, Assistant Federal Public Defender, Washington, DC, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender, Washington, DC.
Barbara J. Valliere, Assistant U.S. Attorney, Washington, DC, argued the cause for appellee. With her on the brief were Mary Lou Leary, U.S. Attorney, John R. Fisher, and Elizabeth Trosman, Assistant U.S. Attorneys, Washington, DC.
Before: GINSBURG, HENDERSON and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
Convicted of lying in order to obtain disability benefits, appellant argues that the trial judge’s repeated questioning of him prejudiced the jury and denied him a fair trial. Because the judge’s questions could have telegraphed to the jury that he disbelieved appellant, and because appellant’s defense in this case rested so heavily on his own personal credibility, we cannot find that the judge’s questions were harmless. We therefore reverse and remand for a new trial.
I
After working for the U.S. Department of Agriculture for several years, appellant Warren P. Tilghman went on disability leave due to back injuries. For thirteen years he received disability benefits of approximately $32,000 per year. In 1984, one year after going on disability, he incorporated Tilghman Enterprises Ltd. (“TEL”), through which he bid on federal agency contracts to investigate employment discrimination complaints. TEL’s sole employee, Tilghman ran the company out of his home.
To receive disability benefits, Tilghman had to submit Department of Labor Form 1032 each year. That form required him to report salary or payments obtained from self-employment, “employment other than self-employment,” the theoretical market “rate of pay” associated with any uncompensated work, and “any [ ] enterprise in which [he] worked, and from which [he] received revenue, even if [the enterprise] operated at a loss.” Except for 1991 when he reported $1500 in self-employment earnings, Tilghman always answered “no” to questions asking whether he was employed or self-employed *416and wrote “n/a” in response to questions asking how much he earned.
Learning of Tilghman’s EEO work, the government conducted an investigation, then indicting him for mail fraud under 18 U.S.C. § 1341; for making false statements to obtain federal employee compensation under 18 U.S.C. § 1920; and for making false statements to a federal agency under 18 U.S.C. § 1001. He was tried on one count of mail fraud and four misdemeanor counts (one each for the years 1991 through 1994) of making false statements on Form 1032.
For his central defense, Tilghman testified that he had no intention of defrauding the government. He told the jury that he honestly believed that he had no obligation to report his EEO investigative work on Form 1032 because TEL operated at a loss, because he never received any salary from his EEO work, and because a DOL employee told him over the telephone that he could earn up to $300 a month without reporting it.
During the first of Tilghman’s two days on the stand, the district judge questioned him extensively in the presence of the jury. Defense counsel offered no objection. On the morning of the second day and before trial began, defense counsel moved for a mistrial, arguing that the judge’s questioning influenced the jury and deprived Tilghman of a fair trial. The district judge denied the motion and continued to question Tilghman. Defense counsel objected to four questions and renewed his motion for mistrial at the close of the case.
The jury acquitted Tilghman on the mail fraud count and on the two counts charging him with lying on DOL Form 1032 for 1991 and 1992. He was convicted of lying on the forms he submitted for 1993 and 1994. The court sentenced him to fifteen months incarceration and one year of supervised release, ordering him to pay $84,000 in restitution. On appeal, Tilghman argues both that the judge’s questioning deprived him of a fair trial and that the amount of loss underlying the sentence and restitution were incorrectly calculated.
II
Rule 614(b) of the Federal Rules of Evidence expressly permits judges to question witnesses. Judges may do so repeatedly and aggressively to clear up confusion and manage trials or where “ ‘testimony is inarticulately or reluctantly given.’ ” United States v. Norris, 873 F.2d 1519, 1525-26 (D.C.Cir.1989) (upholding judge’s participation in questioning defendant, although perhaps more extensive than it should have been, because it aimed at clarifying evidence) (quoting United States v. Barbour, 420 F.2d 1319, 1321 (D.C.Cir.1969)).
District court authority to question witnesses and manage trials, however, has limits. Because juries, not judges, decide whether witnesses are telling the truth, and because judges wield enormous influence over juries, judges may not ask questions that signal their belief or disbelief of witnesses. United States v. Wyatt, 442 F.2d 858, 859-61 (D.C.Cir.1971) (court’s questioning of defendant and his alibi witnesses damaged defendant’s credibility and therefore was reversible error). Because such questions can usurp the jury’s factfinding function, cast the judge in the role of advocate, and “breach [] the atmosphere of judicial evenhandedness that should pervade the courtroom,” they can deprive defendants of fair trials. Barbour, 420 F.2d at 1321. Judges must therefore strive to preserve an appearance of impartiality and “ ‘err on the side of [ajbstention from intervention.’ ” Norris, 873 F.2d at 1526 (alteration in original) (quoting United States v. Green, 429 F.2d 754, 760 (D.C.Cir.1970)).
Drawing the line between appropriate and inappropriate judicial questioning of witnesses presents circuit courts with a challenging task. Appellate records often fail to convey nuance and tone. Unlike many federal circuit court judges, moreover, district judges are experts at supervising trials and managing witnesses. We thus scrutinize trial judge exercise of discretion with both deference and “respect appropriately reflective of the inescapable remoteness of appellate review.” Paylor v. United States, 404 F.2d 1263, 1265 (D.C.Cir.1968). At the same time, because we must ensure that defendants re*417ceive fair trials, we will set aside a conviction if witness management decisions by district judges “affect substantial rights,” Fed.R.Crim.P. 52.
In reviewing allegations of improper judicial questioning, we examine each case on its own facts. We have reversed when judicial interrogation “may have damaged the appellant’s credibility in the eyes of the jury” or “may have given the jury the impression that the judge doubted the defendant’s credibility.” Wyatt, 442 F.2d at 860, 861. We have sustained judicial questioning where the ease was not “close” and the issues addressed by the judge were “peripheral to the main issues in the ease.” United States v. Mangum, 100 F.3d 164, 174 (D.C.Cir.1996).
The parties disagree about the applicable standard of review. The government argues that at least with respect to Tilghman’s first day of testimony, we should review the district judge’s questions only for plain error because counsel made no objection until the second day. United States v. Winstead, 74 F.3d 1313, 1319 (D.C.Cir.1996). Relying on Fed.R.Evid. 614(c) — objections to witness interrogation by the court “may be made at the time or at the next available opportunity when the jury is not present” — Tilghman argues that his mistrial motion made first thing on the morning of Day Two constituted a timely objection to Day One’s questions. He urges us to review the judge’s actions for abuse of discretion and harmless error. United States v. Lin, 101 F.3d 760, 769 & n. 2 (D.C.Cir.1996).
Under the circumstances of this case, we need not decide whether the Day Two mistrial motion was sufficiently timely under Rule 614(e) to permit harmless error review' of Day One questions. Counsel’s objections were timely with respect to all Day Two questions; as the government concedes, moreover, when reviewing Day Two questions we must review the record as a whole, including Day One questions. See United States v. Williams, 113 F.3d 243, 248 (D.C.Cir.1997) (troublesome question reviewed in “context” not reversible error); United States v. Patterson, 652 F.2d 1046, 1048-49 (D.C.Cir.1981) (judge’s “inquisitorial” questions analyzed “prospectively” and “in context of [ ] trial transcript” were proper).
The question before us, then, is whether the judge’s Day Two questions, read in the context of the entire trial, amounted to an abuse of discretion and, if so, whether they were harmless. To sustain defendant’s conviction, we must “be able to declare [our] belief that [any error] was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). We will reverse if there is “ ‘a reasonable possibility that the [error] complained of might have contributed to the conviction.’” Id. (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230-31, 11 L.Ed.2d 171 (1963)); see United States v. Saro, 24 F.3d 283, 287 (D.C.Cir.1994) (reversal required if court “entertains a ‘reasonable doubt’ about whether error affected the outcome” (quoting Chapman, 386 U.S. at 24, 87 S.Ct. at 828)). The burden of demonstrating harmless error rests with the government. Chapman, 386 U.S. at 24, 87 S.Ct. at 828.
Ill
With these standards in mind, we examine the district judge’s questioning, beginning with the most troublesome questions on Day Two. Central to his defense, Tilghman asserted that DOL employee Julio Mendez told him in a 1984 telephone call that he had no obligation to report earnings of up to $300 per month. While the prosecution questioned Tilghman about this claim, the following colloquy occurred:
THE COURT: You didn’t put this on any form, did you?
DEFENDANT: Did I put it on a form? No sir; this was a telephone conversation.
THE COURT: Did this Julio Mendez put it on a form?
I don’t know, sir. DEFENDANT:
*418THE COURT: We just have to take your word for it?
DEF. COUNSEL: Objection, Your Honor.
THE COURT: Over-ruled. Is that right?
DEFENDANT: I’m sworn to tell the truth, sir.
THE COURT: I know, but we have to take your word for it; is that right?
DEFENDANT: I don’t know if he has any record of it or not.
5/22 a.m. Tr. at 46. Focusing on the absence of any evidence of this phone call, the prosecutor then questioned Tilghman for several transcript pages.
Earlier that same day, while Tilghman described for the jury his understanding of DOL Form 1032, the judge questioned him as follows:
THE COURT: You were an employee of Tilghman Enterprises?
DEFENDANT: That is correct, sir.
THE COURT: Doesn’t that fit in the paragraph Employment other than Self-Employment? Under this heading, you must report all employment.
DEFENDANT: For which you receive wages.
DEF. COUNSEL: Objection, Your Honor.
THE COURT: It goes on to say if you perform work for which you were not paid, you must show a rate of pay of what it would have cost. You didn’t put that in any of them?
DEFENDANT: I felt that was not applicable, sir, because there was no way to compute those figures.
DEF. COUNSEL: Your Honor, if I may just renew my objection.
THE COURT: The objection is over-ruled.
PROSECUTOR: In other words, Mr. Tilghman, it is your belief that the Department of Labor had to specifically ask you, Okay, Mr. Tilghman, asterisks, we want to know about your corporation?
DEFENDANT: No. It was my belief that I had to answer carefully, accurately, and honestly; and I did so.
5/22 a.m. Tr. at 40-41.
As in United States v. Wyatt, we think these questions “may have given the jury the impression that the judge doubted the defendant’s credibility.” Wyatt, 442 F.2d at 861. The judge’s questions could have been particularly damaging because the indictment charged Tilghman with lying, making his *419credibility unusually critical to his defense. The jury could have interpreted the Mendez question- — “[W]e have to take your word for it; is that right?” — as signaling that the judge considered Tilghman’s oath irrelevant and his word suspect. Even the government conceded at oral argument that the judge should not have asked this question, calling it “unfortunate.” From the second set of-questions, the jury could have inferred that the judge accepted the government’s theory of the case that Tilghman should have cheeked off the “self-employment” box on Form 1032.
Turning to Day One, the judge’s questions reinforce our perception that the Day Two questions may have colored the jury’s assessment of Tilghman’s veracity. For example, as Tilghman explained to the jury how a bank officer had instructed him to fill out a loan application, the following exchange took place:
THE COURT: You’re an educated man, aren’t you? You have a master’s degree, and you did work for a doctorate. Is that right?
DEFENDANT: That’s correct, sir.
THE COURT: Now, this is supposed to get a loan from the bank, and you put down as annual income $45,000 and expenditures $14,000. On the basis of that, they were going to give you a loan, right?
DEFENDANT: I would assume so, yes.
THE COURT: And those figures aren’t accurate because the chairman of the board told you to put them in.
DEFENDANT: You say they are or are not?
THE COURT: They’re not accurate. You say they aren’t accurate because he just told you what to put in.
DEFENDANT: In essence, he did tell me what to put in.
THE COURT: Do you think that any sane bank would give somebody a loan on figures that are totally made up? I mean, as an educated man who’s been in business off and on, and government business, private business. Do you think [a] bank would give a loan to somebody on the basis of figures that are just made up by the chairman of the board?
5/21 p.m. Tr. 84-85.
Later on Day One, Tilghman described the bidding process for EEO investigative eon-tracts, stating that he and other investigators routinely lost money or broke even:
THE COURT: Other people who [bid] in the same ball park with you, and they all must have lost money, too, is that right?
DEFENDANT: I‘m assuming so, sir, yes, sir, because [a] lot of them went out of business.
THE COURT: I see. It’s a peculiar business where everybody stays in for years and loses money all the time.
DEFENDANT: All I can — the only thing I know to relate it to—
THE COURT: Wouldn't you agree it’s a peculiar business?
*420DEFENDANT: Sir?
THE COURT: Wouldn't you agree it’s a peculiar business?
DEFENDANT: Not necessarily. I taught for years, and I could have made much more money doing something else.
5/21 p.m. Tr. at 107. A moment later, the judge interjected:
THE COURT: Just a minute. Something occurred to me. You were not in the business of making money out of these contracts. You were perfectly content to lose money on these contracts.
DEFENDANT: I was—
THE COURT: You were a philanthropist; you wanted to help these people.
DEFENDANT: No, I was hoping I could at least break even.
5/21 p.m. Tr. at 109.
Like the questions on Day Two, these inquiries could have suggested to the jury that the judge disbelieved Tilghman. From the first set of questions, particularly the judge’s reference to “any sane bank,” the jury could have inferred that the judge thought Tilgh-man was lying about the basis of the loan. The judge’s reference to philanthropy likewise could have suggested to the jury that he did not believe that Tilghman was losing money, as he testified. Having heard these Day One questions and the judge’s Day Two challenge to Tilghman’s honesty under oath, the jury could well have concluded that the judge considered Tilghman an untruthful witness.
As the government argues, it is possible that the judge’s comments actually “helped appellant bring out his defense.” It is also possible that the judge’s questioning generated jury sympathy for Tilghman. But under the harmless error standard, we cannot speculate about what transpired behind the jury room door. We ask only whether the judge's questions “may have” damaged Tilghman’s credibility. Wyatt, 442 F.2d at 860. Because the jury could reasonably have interpreted the judge’s pointed comments as reflecting his personal disbelief of Tilghman, we cannot find that the government has “prove[n] beyond a reasonable doubt that [the judge’s commentary] did not contribute to the verdict obtained.” Chapman, 386 U.S. at 24, 87 S.Ct. at 828.
We think the questions asked in this case were even more inappropriate than the “quite troublesome” query the same district judge posed in United States v. Williams, 113 F.3d at 248. There, he asked the defendant why if he was not a drug dealer he used “code” words for drugs in conversations with potential buyers. Although we worried about the “increasing number of cases in which our trial judges have been overly pointed in questioning witnesses, particularly defendants,” id., observing that “this case borders on that category,” id., we upheld that conviction because “there was not an objection, and we do not think any error could be characterized as plain,” id. Here, not only did counsel object, but the judge asked several “overly pointed” questions.
This case also differs from United States v. Mangum, where “any impact the [judge’s] questions might have had on the jury was *421insignificant in relation to the overwhelming evidence against [the defendant].” 100 F.3d at 174. This jury acquitted Tilghman of two counts and the government concedes in a post-argument submission that it has no evi-dentiary basis for distinguishing those two counts from the two on which Tilghman was convicted. To us, the split verdict suggests both jury uncertainty and susceptibility to judicial influence.
The government argues that because the judge also asked intrusive questions of government witnesses and badgered the prosecutor about her handling of exhibits, the jury could have perceived him as evenhanded. The record shows that the district judge did criticize the prosecution’s case, implying, for example, that some government witnesses were unclear, confused, or inept. After questioning one government witness, the judge said to the prosecutor, “You better ask the questions. I don’t know what she’s talking about.” 5/13 p.m. Tr. at 70. To other witnesses he made such comments as: “You have never said just ‘no’ or ‘yes.’ You always go on and on and make a whole speech,” 5/15 Tr. at 41, “Nevermind, nevermind. You are not helping me,” 5/15 Tr. at 45, and “Just answer the question.... We don’t need an encyclopedia in response to every question.” 5/16 p.m. Tr. at 71. He also commented on the prosecution’s evidence. When granting a defense objection, for example, he said: “I don’t see any relevance whatever. I am surprised nobody has objected before,” 5/16 a.m. Tr. at 27, and during the prosecution’s examination of a character witness he asked, “Are you finished with this line of questioning? .... Or are you dredging up some more?” 5/20 Tr. at 149-50. In addition, the judge criticized the prosecution’s inefficient handling of exhibits. “I want to congratulate you,” he said at one point, “[t]his is actually marked with a sticker.” 5/15 a.m. Tr. at 52.
Contrary to the government’s argument, we think the nature of the judge’s treatment of the prosecution differed fundamentally from his questioning of Tilghman. Indeed, comparing the two illustrates the difference between appropriate, active, even aggressive judicial management and prejudicial judicial questioning. As the manager of the proceedings, the district judge had ample authority to discipline government counsel for disorganization or inefficiency. It is one thing to criticize counsel about exhibits; it is quite another to question the defendant’s credibility on the stand when the central issue is whether he is telling the truth. The judge’s comments on the confusing quality of government testimony could not possibly undermine the prosecution’s case in the same way that his questioning of Tilghman could have punctured the heart of the defense.
The government argues finally that the judge’s instructions to the jury cured any improprieties. Having explained that the jury bears sole responsibility for determining the facts, the district judge instructed the jury as follows:
And if I say anything about the facts, which normally I don’t, you just disregard it because I don’t have any responsibility, any obligation on the facts. It’s entirely up to you. And if I say something, if I said something in the trial or say something in this closing charge about the facts, you just disregard it because you are [as] much judges on the facts as I am judge on the law. I hope you understand that. And that applies to anything I said in the course of the trial, the questions I may have asked or rulings I may have made, they’re all not designed, and you should not take them as being my opinion on the facts because it’s your opinion on the facts that counts.
5/22 p.m. Tr. at 74-75. This instruction was too little too late. Although jury instructions can cure certain irregularities, at least under the plain error standard, Winstead, 74 F.3d at 1319, we agree with the Second Circuit that where, as here, the trial judge asked questions, objected to by counsel, that could have influenced the jury’s assessment of the defendant’s veracity, such interference with jury fact-finding cannot be cured by standard jury instructions. United States v. Filani, 74 F.3d 378, 386 (2d Cir.1996). We need not consider whether special instructions or other measures might cure such errors, for none was employed here.
Because we reverse defendant’s conviction and remand for a new trial, we have no need *422to reach the sentencing and restitution issues.
So ordered.
3.1.12 Eleventh Circuit Court of Appeals Pattern Jury Instructions 3.1.12 Eleventh Circuit Court of Appeals Pattern Jury Instructions
5 Credibility of Witnesses
When I say you must consider all the evidence, I don’t mean that you must accept all the evidence as true or accurate. You should decide whether you believe what each witness had to say, and how important that testimony was. In making that decision you may believe or disbelieve any witness, in whole or in part. The number of witnesses testifying concerning a particular point doesn’t necessarily matter.
To decide whether you believe any witness I suggest that you ask yourself a few questions:
§ Did the witness impress you as one who was telling the truth?
§ Did the witness have any particular reason not to tell the truth?
§ Did the witness have a personal interest in the outcome of the case?
§ Did the witness seem to have a good memory?
§ Did the witness have the opportunity and ability to accurately observe the things he or she testified about?
§ Did the witness appear to understand the questions clearly and answer them directly?
- Did the witness's testimony differ from other testimony or other evidence?
Comprehension Questions Set 5 Comprehension Questions Set 5
3.1.13 OPTIONAL for Class 5 3.1.13 OPTIONAL for Class 5
3.1.13.1 OPTIONAL: Exchanges from a book called Disorder in the American Courts 3.1.13.1 OPTIONAL: Exchanges from a book called Disorder in the American Courts
These are things people actually said in court, word for word, taken down and published by court reporters.
__________________________________________
ATTORNEY: What is your date of birth?
WITNESS: July 18th.
ATTORNEY: What year?
WITNESS: Every year.
_____________________________________
ATTORNEY: How old is your son, the one living with you?
WITNESS: Thirty-eight or thirty-five, I can't remember which.
ATTORNEY: How long has he lived with you?
WITNESS: Forty-five years.
_________________________________
ATTORNEY: This myasthenia gravis, does it affect your memory at all?
WITNESS: Yes.
ATTORNEY: And in what ways does it affect your memory?
WITNESS: I forget.
ATTORNEY: You forget? Can you give us an example of something you forgot?
___________________________________________
ATTORNEY: Now doctor, isn't it true that when a person dies in his sleep, he doesn't know about it until the next morning?
WITNESS: Did you actually pass the bar exam?
____________________________________
ATTORNEY: The youngest son, the 20-year-old, how old is he?
WITNESS: He's 20, much like your IQ.
___________________________________________
ATTORNEY: Were you present when your picture was taken?
WITNESS: Are you shitting me?
____________________________________________
ATTORNEY: She had three children , right?
WITNESS: Yes.
ATTORNEY: How many were boys?
WITNESS: None.
ATTORNEY: Were there any girls?
WITNESS: Your Honor, I think I need a different attorney. Can I get a new attorney?
____________________________________________
ATTORNEY: How was your first marriage terminated?
WITNESS: By death.
ATTORNEY: And by whose death was it terminated?
WITNESS: Take a guess.
______________________________________
ATTORNEY: Doctor, how many of your autopsies have you performed on dead people?
WITNESS: All of them. The live ones put up too much of a fight.
_________________________________________
ATTORNEY: Do you recall the time that you examined the body?
WITNESS: The autopsy started around 8:30 PM
ATTORNEY: And Mr. Denton was dead at the time?
WITNESS: If not, he was by the time I finished.
_____________________________________
ATTORNEY: Doctor, before you performed the autopsy, did you check for a pulse?
WITNESS: No.
ATTORNEY: Did you check for blood pressure?
WITNESS: No.
ATTORNEY: Did you check for breathing?
WITNESS: No.
ATTORNEY: So, then it is possible that the patient was alive when you began the autopsy?
WITNESS: No.
ATTORNEY: How can you be so sure, Doctor?
WITNESS: Because his brain was sitting on my desk in a jar.
ATTORNEY: I see, but could the patient have still been alive, nevertheless?
WITNESS: Yes, it is possible that he could have been alive and practicing law
3.1.13.2. OPTIONAL: Video Lesson re Witness Testimony
Watch up until 3:55 for a review of Rules 601, 602, and 603
3.1.13.3 OPTIONAL: People v. Howard, 17 Cal. 63, 1860 WL 1000 (Cal. 1860) 3.1.13.3 OPTIONAL: People v. Howard, 17 Cal. 63, 1860 WL 1000 (Cal. 1860)
This case from the 1800s shows how categorical “competence” rules based on race were used to keep witnesses out of court.
FIELD, C. J., delivered the opinion of the Court--BALDWIN, J., concurring.
The defendant was convicted of the larceny of a gold watch belonging to a person of half negro blood, and the testimony of the negro was offered to establish the fact that the property was taken from him without his knowledge or consent. The question for consideration is, whether, in a criminal action against a white man, a black person--a mulatto in the present case--is a competent witness, where he is the injured party. By injured party, is meant the person who is the immediate and direct sufferer from the offense committed. The question presented must have its solution in the construction of certain provisions of the act concerning crimes and punishments. The thirteenth section of that act provides that, “the party or parties injured shall, in all cases, be competent witnesses;” and the fourteenth section provides that “no black or mulatto person, or Indian, shall be permitted to give evidence in favor of or against any white person.” This latter section, in our judgment, creates an exception to the general rule declared in the preceding one. The connection of the two sections, one following the other, leads us to that conclusion. The party injured may testify, in all cases, subject to this exception, that a black or mulatto person shall not be permitted to appear for or against a white person.
It is possible, as suggested by the District Attorney, that instances may arise where, upon this construction, crime may go unpunished. If this be so, it is only matter for the consideration of the Legislature. With the policy, wisdom, or consequences of legislation, when constitutional, we have nothing to do.
*65 The judgment must be reversed, and the cause remanded for a new trial. Ordered accordingly.
COPE, J. delivered the following dissenting opinion:
. . . The question is, whether the Legislature, after providing that the injured party shall, in all cases, be a competent witness, intended to except from the operation of that provision black and mulatto persons and Indians; and I see no reason in law or policy upon which such an interpretation can be based. The former of these provisions is entitled to a liberal and equitable interpretation, while the latter must be strictly construed, and its operation confined within the narrowest limits which can be assigned to it upon any reasonable hypothesis of the intention of the Legislature. This being the rule of construction, as applicable to these provisions, I think that the latter cannot be regarded as a modification of the former; and that wherever a black or mulatto person or Indian is the injured party, he is a competent witness. Any other construction would, in many cases, result in an entire failure of public justice; and this is, no doubt, one of the consequences against which the Legislature intended to provide.
**2 I think the judgment should be affirmed.
3.1.13.4 OPTIONAL: Berger v. United States 3.1.13.4 OPTIONAL: Berger v. United States
This is the case cited in the advisory notes as an example of why the judge needs to be able to control the examination of witnesses. The lawyer’s conduct here is truly shocking!
BERGER v. UNITED STATES.
No. 544.
Argued March 7, 1935. —
Decided April 15, 1935.
*79Mr. Nathan D. Perlman, with whom Mr. Sydney Rosenthal was on the brief, submitted for petitioner.
Mr. Justin Miller, with whom Solicitor General Biggs and Messrs. H. Brian Holland, W. Marvin Smith, and Harry S. Ridgely were on the brief, for the United States.
delivered the opinion of the Court.
. Petitioner was indicted in a federal district court charged with having conspired with seven other persons named in the indictment to utter counterfeit notes pur*80porting to be issued by designated federal reserve banks, with knowledge that they had been counterfeited. The indictment contained eight additional counts alleging substantive offenses. Among the persons named in the indictment were Katz, Rice and Jones. Rice and Jones were convicted by the jury upon two of the substantive counts and the conspiracy count. Petitioner was convicted upon the conspiracy count only. Katz pleaded guilty to the conspiracy count, and testified for the government upon an arrangement that a nolle prosequi as to the substantive counts would be entered. It is not necessary now to refer to the evidence further than to say that it tended to establish no't a single conspiracy as charged but two conspiracies — one between Rice and Katz and another between Berger, Jones and Katz. The only connecting link between the two was that Katz was in both conspiracies and the same counterfeit money had to do with both. There was no evidence that Berger was a party to the conspiracy between Rice and Katz. During the trial, the United States attorney who prosecuted the case for the government was guilty of misconduct, both in connection with his cross-examination of witnesses and in his argument to the jury, the particulars of which we consider at a later point in this opinion. At the conclusion of the evidence, Berger moved to dismiss the indictment as to the conspiracy count, on the ground that the evidence was insufficient to support the charge. That motion was denied. Petitioner, Rice, Katz and Jones were sentenced to terms of imprisonment.
The court of appeals, affirming the judgment, 73 F. (2d) 278, held that there was a variance between the allegations of the conspiracy count and the proof, but that it was not prejudicial; and that the conduct of the prosecuting attorney, although to be condemned, was not sufficiently grave to affect the fairness of the trial. We brought the case here on certiorari because of a conflict *81with other circuit courts of appeals in respect of the effect of the alleged variance.
1. It is settled by the great weight of authority that although an indictment charges a conspiracy involving several persons and the proof establishes the conspiracy against some of them only, the variance is not material. But several circuit courts of appeals have held that if the indictment charges a single conspiracy, and the effect of the proof is to split the conspiracy into two, the variance is fatal. Thus it is said in Telman v. United States, 67 F. (2d) 716, 718: “ Where one large conspiracy is charged, proof of different and disconnected smaller ones will not sustain a conviction.” In support of that statement the various decisions upon which petitioner here relies are cited. This view, however, ignores the question of materiality, and should be so qualified as to make the result of the variance depend upon whether it has substantially injured the defendant.
In the present case, the objection is not that the allegations of the indictment do not describe the conspiracy of which petitioner was convicted, but, in effect, it is that the proof includes more. If the proof had been confined to that conspiracy, the variance, as we have seen, would not have been fatal. Does it become so because, in addition to proof of the conspiracy with which petitioner was connected, proof of a conspiracy with which he was not connected was also furnished and made the basis of a verdict against others?
Section 269 of the Judicial Code,' as amended (28 U. S. C. § 391) provides:
“ On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.”
*82The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to “ affect the substantial rights ” of the accused. The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the .accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense. Bennett v. United States, 227 U. S. 333, 338; Harrison v. United States, 200 Fed. 662, 673; United States v. Wills, 36 F. (2d) 855, 856-857. Cf. Hagner v. United States, 285 U. S. 427, 431-433.
Evidently Congress intended by the amendment to § 269 to put an end to the too rigid application, sometimes made, of the rule that error being shown, prejudice must be presumed; and to establish the more reasonable rule that if, upon an examination of the entire record, substantial prejudice does not appear, the error must be regarded as harmless. See Haywood v. United States, 268 Fed. 795, 798; Rich v. United States, 271 Fed. 566, 569-570.
The count in question here charges a conspiracy to utter false notes of one federal reserve bank each calling for $20, and those of another each calling for $100. The object of the utterance thus concerted is not stated; but the proof as to the conspiracies is that the one between Katz and Rice was with the purpose of uttering the false notes to buy rings from persons advertising them for sale, and the object of the other between Katz, Jones and Berger was to pass the notes to tradesmen. Suppose the indictment had charged these two conspiracies in separate counts in identical terms, except that, in addition, it had specifically set forth the contemplated object *83of passing the notes, naming Berger, Katz, Rice and Jones as the conspirators in each count. Suppose further that the proof had established both counts, connecting Berger with one but failing to connect him with the other, and thereupon he had been convicted of the former and acquitted of the latter. Plainly enough, his substantial rights would not have been affected. The situation supposed and that under consideration differ greatly in form; but do they differ in real substance? The proof here in respect of the conspiracy with which Berger was not connected may, as to him, be regarded as incompetent; but we are unable to find anything in the facts — which are fairly stated by the court below — or in the record from which it reasonably can be said that the proof operated to prejudice his case, or that it came as a surprise; and certainly the fact that the proof disclosed two conspiracies instead of one, each within the words of the indictment, cannot prejudice his defense of former acquittal of the one or former conviction of the other, if he should again be prosecuted.
In Washington & Georgetown R. Co. v. Hickey, 166 U. S. 521, 531, this court said that “ no variance ought ever to be regarded as material where the allegation and proof substantially correspond, or where the variance was not of a character which could have misled the defendant at the trial.” This was said in a civil case, it is true, but it applies equally to a criminal case if there be added the further requisite that the variance, be not such as to deprive the accused of his right to be protected' against another prosecution for the same offense. See Meyers v. United States, 3 F. (2d) 379, 380; Mansolilli v. United States, 2 F. (2d) 42, 43.
We do not mean to say that a variance such as that here dealt with might not be material in a different case. We simply hold, following the view of the court below, *84that applying § 269 of the Judicial Code, as amended, to the circumstances of this case the variance was not prejudicial and hence not fatal.
2. That the United States prosecuting attorney overstepped the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense is clearly shown by the record. He was guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had' been made to him personally out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and in general, of conducting himself in a thoroughly indecorous and improper manner. We reproduce in the margin* a few excerpts *85from the record illustrating some of the various points of the foregoing summary. It - is impossible, however, without reading the testimony at some length, and thereby obtaining a knowledge of the setting in which the objectionable matter occurred, to appreciate fully the extent of the misconduct. The trial judge, it is true, sustained objections to some of the questions, insinuations and misstatements, and instructed the jury to disregard them. But the situation was one which called for stem rebuke and repressive measures and, perhaps, if these were not successful, for the granting of a mistrial. It is impossible to say that the evil influence upon the jury of these acts of misconduct was removed by such mild judicial action as was taken.
The prosecuting attorney’s argument to the jury was undignified and intemperate, containing improper insinuations and assertions calculated to mislead the jury. A reading of the entire argument is necessary to an appreciation of these objectionable features. The following is an illustration: A witness by the name of Goldie Goldstein *86had been called by the prosecution to identify the petitioner. She apparently had difficulty in doing so. The prosecuting attorney, in the course of his argument, said (italics added):
“ Mrs. Goldie Goldstein takes the stand. She says she knows Jones, and you can bet your bottom dollar she knew Berger. She stood right where I am now and looked at him and was afraid to go over there, and when I waved my arm everybody started to holler, ‘ Don’t point at him.’ *87You know the rules of law. Well, it is the most complicated game in the world. I was examining a woman that I knew knew Berger and could identify him, she was standing right here looking at him, and I couldn’t say, ‘ Isn’t that the man? ’ Now, imagine that! But that is the rules of the game, and I have to play within those rules.”
*88The jury was thus invited to conclude that the witness Goldstein knew Berger well but pretended otherwise; and that this- was within the personal knowledge of the prosecuting attorney.
Again, at another point in his argument, after suggesting that defendants’ counsel had the advantage of being able to charge the district attorney with being unfair “ of trying to twist a witness,” he said:
“ But, oh, they can twist the questions, . . . they can sit up in their offices and devise ways to pass counterfeit money; ‘ but don’t let the Government touch me, that is unfair; please leave my client alone.’ ”
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none. The court below said that the case against Berger was not strong; and from a careful examination of the record we agree. Indeed, the case against Berger, who was convicted only of conspiracy and not of any substantive offense as were *89the other defendants, we think may properly be characterized as weak — depending, as it did, upon the testimony of Katz, an accomplice with a long criminal record.
In these circumstances prejudice to the cause of the accused is so highly probable that we are not justified in assuming its non-existence. If the case against Berger had been strong, or, as some courts have said, the evidence of his guilt “ overwhelming,” a different conclusion might be reached. Compare Fitter v. United States, 258 Fed. 567, 573; Johnson v. United States, 215 Fed. 679, 685; People v. Malkin, 250 N. Y. 185, 201-202; 164 N. E. 900; Iowa v. Roscum, 119 Iowa 330, 333; 93 N. W. 295. Moreover, we have not here a case where the misconduct of the prosecuting attorney was slight or confined to a single-instance, but one where such misconduct was pronounced and persistent, with a probable cumulative effect upon the jury which cannot be disregarded as inconsequential. A new trial must be awarded. Compare N. Y. Central R. Co. v. Johnson, 279 U. S. 310, 316-318.
The views we have expressed find support in many decisions, among which the following are good examples: People v. Malkin, supra; People v. Esposito, 224 N. Y. 370, 375-377; 121 N. E. 344; Johnson v. United States, supra; Cook v. Commonwealth, 86 Ky. 663, 665-667; 7 S. W. 155; Gale v. People, 26 Mich. 157; People v. Wells, 100 Cal. 459; 34 Pac. 1078. The case last cited is especially apposite.
Judgment reversed.
3.1.13.5 OPTIONAL: United States v. Donato 3.1.13.5 OPTIONAL: United States v. Donato
This case illustrates that although the judge has significant power to control the pace and conduct of a trial under Rule 611, there ARE limits!
99 F.3d 426
UNITED STATES of America, Appellee, v. Patricia M. DONATO, Appellant.
No. 95-3195.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 10, 1996.
Decided Nov. 8, 1996.
As Amended Jan. 17, 1997.
*289Robert L. Weinberg argued the cause for appellant, with whom John G. Kester and J. Roger Williams, Jr., Washington, DC, were on the briefs.
Mark J. Ehlers, Assistant United States Attorney, argued the cause for appellee, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher and Elizabeth Trosman, Assistant United States Attorneys, were on the brief. Thomas A. DiBiase, Washington, DC, entered an appearance.
Before WALD, SILBERMAN, and SENTELLE, Circuit Judges.
Opinion for the court filed by Circuit Judge SENTELLE.
Separate opinion filed per curiam.
Appellant Patricia Donato and Charles Fraser were indicted on three counts charging conspiracy, mail fraud, and wire fraud. The indictment alleged that Donato and Fraser had conspired to have Fraser steal Donato’s car so that Donato could collect insurance benefits and be freed from the obligations of her lease. On the first day of trial Fraser pled guilty. Fraser subsequently testified for the government against Donato. After a ten-day trial, the jury returned a verdict of guilty on all three counts of the indictment.
The trial was marked by frequent clashes between the trial judge and Donato’s attorney. Donato now raises several challenges to her conviction. Finding four of them to have merit, we reverse and remand for a new trial.
I. BACKGROUND
Appellant is an engineer and former Marine Corps officer with no prior criminal record. In September 1991, she leased a Nissan 300ZX automobile for five years from Infiniti Financial Services. The car quickly became burdensome. After someone unsuccessfully attempted to steal the car in February 1992, it became a joke between Donato and her friends that it might have been better had the would-be thief succeeded.
The government contended at trial that soon after the attempted theft, Donato decided to take steps to see to it that the car “disappeared.” The government contended that Donato conspired with Charles Fraser, a handyman who had previously done work around appellant’s house, to have him steal the car. Donato would then report the car stolen, collect on the insurance, and be freed from having to deal with the car and the lease.
While the existence of an agreement between Fraser and Donato was the central dispute at trial, it was not disputed that Fraser eventually took the car from the *290parking lot at Donato’s place of work. Fraser had enlisted a man named Barry Tate to help in the theft and disposal of the car. Unbeknownst to Fraser, Tate was an informant for the FBI. After some additional investigation, Fraser and Donato were both charged.
II. ANALYSIS
As noted above, Donato raises several challenges to her conviction. We hold that four of them have merit. We consider three of her meritorious challenges seriatim herein. The fourth, we discuss in a separate per curiam opinion filed simultaneously herewith.
A. Rule 2í(c)—Excusal of the Juror
On the afternoon of Thursday, September 21, after the jury had been given its instructions, and before it left to begin deliberations, the trial judge asked if “there is any member among the original 12 jurors who believes that you are too sick or you’ve had some great emergency in your family and you cannot proceed to deliberation.” Tr. 9/21/95 at 100-01. Juror 11 indicated that she might have such a problem.
Upon approaching the bench, Juror 11 said, “On Monday evening I do have airplane tickets to go to Boise, Idaho, to help teach a course.” Id. at 101. The juror expressed concern that the deliberations might last until Monday evening. The trial judge agreed that they might and then, over the objection of Donato’s attorney, dismissed the juror and empaneled the first alternate, with no further inquiry into the nature and purpose of the juror’s trip. Donato now argues that this dismissal of the juror was reversible error under Federal Rule of Criminal Procedure 24(e).
Rule 24(c) authorizes a district court judge to dismiss a juror and empanel an alternate when the original juror “become[s] or [is] found to be unable or disqualified to perform [her] duties.” Donato argues that the judge in her case erred by not making a finding that the dismissed juror was “unable or disqualified” to perform. She argues that this error prejudiced her “valued right to a particular tribunal.” United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949)).
We review a trial court’s ruling under Rule 24(c) for abuse of discretion. United States v. Simpson, 992 F.2d 1224, 1228 (D.C.Cir.), cert. denied, 510 U.S. 906, 114 S.Ct. 286, 126 L.Ed.2d 236 (1993). The government contends that the trial judge was acting within her discretion when she excused Juror 11.
We recognize that a trial judge is given great latitude under abuse of discretion review. We also recognize, however, that in order for our review of a Rule 24(c) determination to be meaningful, the trial court must indicate what factors it has considered in exercising its discretion. In this case the trial judge never explained why this juror could be excused under Rule 24(c). It is not clear from the record before us why this was so, and the court made no effort to either further develop the record or explain why the existing record was adequate to make this determination.
Matters entrusted to a trial judge’s discretion are not unreviewable. Rather, they are subject to review for abuse of that discretion. If the record provided a full foundation for a determination that the juror was unable to fulfill her duties, we might be able to sustain the district court’s dismissal of her without express findings, although certainly such findings would make review more satisfactory. Here, however, we have neither the findings nor a record sufficient in depth or in detail to support such findings. We must, therefore, conclude that we cannot sustain the district court’s decision. Cf. United States v. Sobamowo, 892 F.2d 90, 95 (D.C.Cir.1989) (“The district judge was best positioned to determine whether dismissal of Juror 9 was warranted under the circumstances, and he gave an adequate account of the ground for his decision.”), cert. denied, 498 U.S. 825, 111 S.Ct. 78, 112 L.Ed.2d 51 (1990).
The government argues that even if the trial court did violate Rule 24(c), the defendant has not shown that she suffered preju*291dice from the error and the conviction therefore should not be reversed. This argument, however, misconstrues the nature of Rule 24. Rule 24 is carefully designed to provide defendants and the United States with a meaningful, if limited, say in the composition of the jury. Rule 24(a) provides for the questioning of prospective jurors either by counsel or the trial judge, Rule 24(b) determines the number of peremptory challenges that each side will be allowed to exercise. Rule 24(c) limits the use of alternate jurors to situations where regular jurors “become or are found to be unable ... to perform their duties.” This grant of a say to the parties is thwarted if judges can, without any reason at all, change the composition of the jury.
It will nearly always be impossible, however, for a defendant to show prejudice from a violation of Rule 24(c). If the government is correct that an appellant alleging a Rule 24(c) violation must show a specific prejudice from that violation, then Rule 24(c) would be entirely precatory. We are unwilling to conclude that a right as important as this one is incapable of being vindicated on appeal. We hold instead that Rule 24(c) violations, if they have been objected to at trial, will be reviewed under the familiar standard of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Under Kotteakos, an error such as this one will be considered harmless so long as we can say “with fair assurance ... that the judgment was not substantially swayed by the error.” Id. at 765, 66 S.Ct. at 1248. Kotteakos will apply so long as the Rule 24(c) violation is non-constitutional. If the violation somehow rises to the level of a constitutional error, and in this ease it does not, it will be reviewed under the stricter standard of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) (“before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt”).
In this case we need not determine if this error, standing alone, was harmless under Kotteakos. Had this error been the only flaw in this trial it is possible that we would not have reversed. Considering it in conjunction with the other matters we discuss herein, however, we find reversal to be warranted.
B. Rule SO — The Post-Charge Conference
At the close of her instructions to the jury, the judge invited counsel to the bench to ask if they had any additional instructions they wished to request of the court. Defendant’s attorney indicated that he did have such a request and asked that the judge, pursuant to Federal Rule of Criminal Procedure 30, conduct this conference out of the presence of the jury. Tr. 9/21/95 at 84. The judge declined defendant’s request, telling the defendant’s attorney, “You are out of the presence of the jury. We are at the bench. Please proceed.” Tr. 9/21/95 at 84. A discussion of the requested instructions immediately ensued.
Rule 30 states, “Opportunity shall be given to [object to the jury charge] out of the hearing of the jury and, on request of any party, out of the presence of the jury.” Fed. R.Crim.P. 30 (emphasis added). This Rule recognizes that a defendant may be prejudiced not only if the jury hears his attorney quarreling with the judge just before deliberations begin, but also if the jury sees the attorney in a confrontational pose. Appellant contends, and the government concedes, that the trial court erred in denying appellant’s request that the jury be cleared from the room before the post-charge conference was held.
Appellant contends that violations of Rule 30 are presumptively prejudicial. This is not supportable. In Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), the Court considered whether and how prejudice must be shown when the trial court has violated Rule 30. The Court refused to hold that any non-compliance with Rule 30 requires reversal, and noted instead the “soundness” of the approach taken by the courts of appeals “which have in some manner examined the prejudice to the defendant in deciding whether reversal is required where there is a failure to comply with Rule 30.” Id. at 135, 94 S.Ct. at 2916.
*292The Court in Hamling did not decide whether the defendant bears the burden of showing affirmatively that a Rule 30 violation is prejudicial or whether the prosecution has the burden of showing the absence of prejudice. The Court, after an examination of the trial record, was convinced that no matter where the burden lay, it was clear that the violation of the rule in Hamling was not prejudicial. Id.
In the instant case the situation is just the opposite. Here it is clear that the defendant was prejudiced by the district court’s noncompliance with the Rule. The Hamling Court noted that Rule 30 is “principally designed to avoid the subtle psychological pressures upon the jurors which would arise if they were to view and hear defense counsel in a posture of apparent antagonism toward the judge.” Id. at 134, 94 S.Ct. at 2916. Upon reviewing the twelve pages of post-instruction discussion between the judge and the attorney, it is apparent that the judge and the defense attorney were in a “posture of apparent antagonism.”
We need not, therefore, answer the question of which party bears the burden with respect to prejudice. Here the prejudice is clear. In fact, given the purposes of the Rule, it is hard to imagine a situation where the prejudice could be much clearer. The post-instruction conference included the following exchanges:
Defendant’s Attorney: [The instruction we believe should have been given] didn’t have a number. We cited it in the memorandum we filed in response to Mr. Fitzgerald’s request this morning.
The Court: I have not read any memorandum that you filed here this morning, all right. I have not read any memorandum that you filed here this morning. I did not invite any memorandums for this morning and I have not read any, okay. If you can tell me the nature of the instruction, maybe I can tell you whether or not I can give you one.
Defendant’s Attorney: Your Honor, we received after court yesterday two handwritten requested instructions from Mr. Fitzgerald.
The Court: All right.
Defendant’s Attorney: And we addressed the topic of those two instructions, and Mr. Williams is getting a copy of the memorandum in which we’ve—
The Court: I’m not going to read a memorandum. If you have another instruction, you might give that to me, but I am not going to read a memorandum for my edification nor for the jury’s.
Tr. 9/21/95 at 85-86.
Defendant’s Attorney: May I respectfully except?
The Court: Sir, you know the rules well enough to know just your objection puts the exception on the record. Please don’t play games with the Court. What else?
Id. at 90.
Defendant’s Attorney: I submit, Your Honor—
The Court: Excuse me. I’m not listening to any more argument. I have ruled on that issue, okay, because I could be here the rest of my life listening to you and I’m not going to stay here that long.
Id. at 95.
These examples typify the twelve-page exchange. While it is impossible for us to know just what expressions and gestures accompanied the harsh words, we can hardly imagine a record which would more clearly evidence that the jurors had observed “defense counsel in a posture of apparent antagonism toward the judge.” Hamling, 418 U.S. at 134, 94 S.Ct. at 2916. No matter which party bears the burden on the prejudice issue, it is clear that on this record, prejudice has been shown. This violation of Rule 30, under the analysis established by Hamling, is enough by itself to warrant reversal.
C. Improper Statements in Prosecutor’s Summation
Donato claims that the prosecutor’s summation contained three improper statements sufficiently prejudicial to warrant reversal. The three statements to which she objects are (1) the prosecutor’s claim that defendant would have had to pay “a fortune” had she terminated the lease early, (2) his assertion *293that Donato had admitted to being in a scheme with Fraser, and (3) his calling her a liar.
We can quickly dismiss her second and third claims of error. The prosecutor stated in his summation that “she admitted she told the special agents that there was a scheme and she and Fraser were involved.” Tr. 9/20/95 at 137. Appellant claims that this was a reversible mischaracterization of trial testimony. Agent Caldwell, however, had testified at trial that Donato had told him at an interview at her house that she and Fraser had discussed having her car disappear, that Fraser had known where the vehicle was going to be, and that no one else was involved in the scheme except for her and Fraser. Tr. 9/14/95 at 133-35. The statements of the prosecutor that Donato now challenges were a fair, if disputed, characterization of that testimony.
As to her third claim, Donato argues that the prosecutor engaged in reversible misconduct by calling her a liar. This argument is foreclosed by United States v. Dean, 55 F.3d 640 (D.C.Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1288, 134 L.Ed.2d 232 (1996). In Dean, this court said that it could conceive of no “reason in law why the words ‘lie’ and ‘lying’ should be banned from the vocabulary of summation, particularly in cases that turn on the defendant’s credibility.” Id. at 665. This case certainly turned on the defendant’s credibility. Thus, while we would commend more civil language to the representatives of the United States, it cannot have been reversible error for the prosecutor to have called the defendant a liar.
Her initial contention, however, has considerably more merit. In his summation the prosecutor stated that if Donato had returned the car before the lease expired “it was going to cost her a fortune.” The prosecutor urged the jury to “figure out what the remaining four years of the lease times about $600 a month would have cost if she had surrendered the car to Infiniti.” As the government now concedes, this was factually incorrect. Had Donato returned the car early, she would have been able to subtract the “realized value” from the amount of the payments remaining on the lease. These amounts were very nearly equivalent, so it would have cost Donato almost nothing to return the car early.
It is clear that it is error for a prosecutor to mischaracterize evidence in a summation. Gaither v. United States, 413 F.2d 1061, 1079 (D.C.Cir.1969). It is also clear, however, that an error in a prosecutor’s summation will only rarely warrant reversal of a conviction. In order to warrant reversal, an improper prosecutorial remark must cause substantial prejudice to the defendant. In determining whether a defendant has suffered substantial prejudice, this court looks at “the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper remarks.” United States v. Monaghan, 741 F.2d 1434, 1443 (D.C.Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985). Applying the Monaghan test to the prosecutor’s misstatement, we conclude that reversal is appropriate on this ground as well.
First, the consequences of the prosecutor’s misstatement were potentially severe. His misstatement provided a motive for the defendant to have committed this crime. In the absence of this improper statement, the only motive the prosecutor presented to the jury was that the defendant stood to gain approximately $1,600 in insurance proceeds. It is far less likely that the defendant would have committed this crime for $1,600 than it is that she would have committed it to free herself of a commitment to pay Infiniti $600 a month for four years. This is particularly true given that the defendant was a former Marine Corps officer who was gainfully employed as a systems engineer at Martin Marietta.
Second, the district court took no steps to correct this misstatement. The defendant’s attorney brought the error to the attention of the district court and requested that the court issue a curative instruction. Tr. 9/21/95 at 93-94. The district court refused. Tr. 9/21/95 at 95. To make matters worse, the judge then improperly shortened the amount of time that the defendant’s attorney could use for closing argument. See D. Ct. *294Mem. Order at 3 (Appellant’s Appendix at 1025). This made it harder for the attorney himself to correct the factual error that the prosecutor had made.1
Third, it was by no means certain that the jury would have delivered a conviction in the absence of the improper remarks. As noted above, the prosecutor’s improper remarks presented the jury with a motive for the defendant to have committed this crime. It is possible that these remarks swayed some jurors who would have been reluctant to convict had the only motive presented to them been recovery of $1,600 in insurance proceeds. Viewed from our perspective, this case seems close enough that we cannot say with confidence that the prosecutor’s misstatement did not affect the integrity of the jury’s verdict. Given this, we are required to hold that this is a third ground for the reversal of her conviction.
D. Other Claims
In addition to her valid claims, the appellant makes a number of additional claims that we reject. Most of these meritless claims require no discussion, especially considering our decision to reverse. We will dwell briefly on two, however, because they have the potential to be relevant if Donato is retried.
The first is Donato’s claim that the Jencks Act requires the government to turn over to the defendant notes and 302 reports of FBI interviews with Fraser, and also notes of government witness Agent Raymond Jechorek. The Jencks Act requires the government to turn over to the defense pre-trial statements made by witnesses who testify at trial. 18 U.S.C. § 3500 (1994). The term “statement” is defined, inter alia, as “a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement.” 18 U.S.C. § 3500(e)(2).
In Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959), the Supreme Court explained that the Jencks Act covered statements that could fairly be used by the defense to impeach a government witness. In order that this goal be achieved, these statements had to be limited to those that could properly be called the witness’ own words. Id. at 352, 79 S.Ct. at 1224-25. Notes from an interview with a witness that were not the whole interview but rather a “substantial selection” of the interview were not covered. Id. at 352-53, 79 S.Ct. at 1225. Here, the agent testified that he included in his account of his interview with Fraser everything that he (the agent) considered pertinent. The agent engaged in “substantial selection,” recording not the entire interview, but only those portions he found pertinent. Under Palermo, the agent’s notes and 302 report from his pre-trial interview with Fraser are not covered by the Jencks Act. As for the notes taken by Agent Jechorek as he surveilled Fraser, we need not determine whether or not these constitute statements of the agent for Jencks purposes. In light of the disposition which we make of this appeal, that ruling cannot change the result, and we do not know whether the question will recur on retrial. We therefore offer no instruction on the matter but leave its resolution in the next instance for the district court in light of such other evidence as may be available at that time, if the government elects to proceed with a new trial in this matter.
The second rejected claim that requires some discussion is Donato’s assertion that the evidence was insufficient to convict her of conspiracy with Fraser to defraud the insurance company. She claims that there was no evidence that she and Fraser ever discussed insurance.
A verdict must be upheld against a claim of insufficient evidence if “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Poston, 902 F.2d 90, 94 (D.C.Cir.1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). Considering all of the evidence in this case in the light most *295favorable to the government, and resolving all credibility judgments against Donato, a rational jury could have concluded that Donato and Fraser had conspired to have her car disappear. A rational jury also could have concluded that Donato would complete their scheme by contacting her insurance company and fraudulently accepting the proceeds. This is all that is required to reject Donato’s insufficiency of the evidence claim.
III. CONCLUSION
For the reasons set forth herein and those contained in the separate per curiam opinion published simultaneously herewith, we reverse appellant’s criminal conviction.
Donato makes one overarching argument that is both more difficult and more troubling than any of the particular violations she raises. Donato argues that the trial judge displayed a clear bias against her and her attorney such that it was impossible for her to receive a fair and impartial trial. She points to numerous instances in the record where she says the judge either made incorrect rulings on evidentiary issues, inappropriately interrupted her attorney, or made degrading remarks directed either at her or her attorney. The government responds that the overwhelming majority of the remarks Dona-to claims demonstrate impermissible bias were a direct response to her counsel’s improper- conduct, questions, and arguments.
We begin our analysis by noting that a district judge has wide discretion in monitoring the flow of a criminal trial. It is well within her discretion to rebuke an attorney, sometimes harshly, when that attorney asks inappropriate questions, ignores the court’s instructions, or otherwise engages in improper or delaying behavior. Sharp words spoken by a trial court to counsel do not by themselves establish impermissible bias. There is a “modicum of quick temper that must be allowed even judges.” Offutt v. United States, 348 U.S. 11, 17, 75 S.Ct. 11, 15, 99 L.Ed. 11 (1954).
The Supreme Court recently expounded on this principle in Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). The question before the Court in Liteky was the proper interpretation of 28 U.S.C. § 455. Section 455(b)(1) requires that a judge recuse himself “[w]here he has a personal bias or prejudice concerning a party.” In considering when such a bias might be shown, the Court said,
[judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge____ Not establishing bias or partiality ... are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display.
Id. at 555,114 S.Ct. at 1157.
Liteky, however, was a statutory case, where the claim was that the trial judge should have recused himself. Donato’s claim is different. She claims that the district court judge displayed such bias against her and her attorney that she did not receive a fair trial. In this sense, her claim is similar to those brought before this court in United States v. Edmond, 52 F.3d 1080 (D.C.Cir.) (per curiam), cert. denied, — U.S. -, 116 S.Ct. 539, 133 L.Ed.2d 443 (1995), and United States v. Logan, 998 F.2d 1025 (D.C.Cir.), cert. denied, 510 U.S. 1000, 114 S.Ct. 569, 126 L.Ed.2d 469 (1993).
In Edmond appellants claimed that the trial court record was “replete” with instances showing the trial court’s hostility to the defense. This overt hostility, argued the appellants, prejudiced the jury. Edmond, 52 F.3d at 1101. We rejected that argument, noting that the challenged remarks were “squarely within the District Court’s discretion in controlling the conduct of the trial,” that the remarks had been directed at defense counsel rather than at defendants, and that even if the remarks had been found to be prejudicial, “the impact on the jury of such a small number of instances as are cited here would have been minimal or lost in the course of the lengthy trial.” Id. at 1101-02.
*296Logan is similar to Edmond. In Logan appellants argued that conflict between the district judge and one of appellant’s lawyers had created the appearance that the court was not acting impartially and thus prejudiced the jury and denied appellants a fair trial. Logan, 998 F.2d at 1028. This court rejected appellants’ arguments, noting that the trial court “was attempting to control difficult counsel who repeatedly flouted her orders,” that most of the sharp exchanges had been outside the hearing of the jury, and that the judge’s comments had been directed at the attorneys rather than at the defendants themselves. Id. at 1029.
These cases emphatically recognize the wide discretion granted district courts in monitoring the pace and conduct of a trial. They further recognize that it will occasionally be permissible in the exercise of that discretion to address sharp words to recalcitrant counsel. These cases also acknowledge, however, that there is a limit to how far a district court may go. While some hostility between attorneys and a trial judge may perhaps be inevitable, negative comments directed by a trial judge to a defendant or her counsel will warrant reversal “if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” Liteky, 510 U.S. at 555, 114 S.Ct. at 1157; see also Logan, 998 F.2d at 1029 (“[W]e must determine “whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to perfect, trial.’ ”) (quoting United States v. Pisani, 773 F.2d 397, 402 (2d Cir.1985)). We hold that the hostility expressed in this case reached and crossed this threshold. We therefore reverse on this ground as well.
Two important factors distinguish this case from Edmond and Logan. First, the negative comments in this case were more concentrated, frequent, and critical than they were in either of those cases. In Edmond this court found that none of the challenged comments were prejudicial. . It noted, however, that even if they had been prejudicial, the “impact on the jury of such a small number of instances as are cited here would have been minimal or lost in the course of the [three-month] trial.” 52 F.3d at 1102. It is not clear from the reported opinion how long the Logan trial lasted, but the dissenter noted, “The trial was long and arduous.” 998 F.2d at 1033. In this case, by contrast, the trial lasted approximately two weeks. The relative brevity of this trial makes it more likely that the judge’s negative comments colored the entire trial. Because this trial was shorter, the jury here was less likely to consider these comments to be discrete and aberrational. The comments were therefore more likely to affect the jury’s ability to deliver a fair judgment.
Not only were the judge’s comments in this trial more concentrated than those in Logan or Edmond, they also appear to have been more frequent and critical. A review of the trial record reveals that the judge frequently berated, interrupted, and otherwise spoke negatively to the defendant’s attorney. During what were arguably the two most crucial moments of the trial for the defendant, i.e., the cross-examination of Fraser and the direct examination of Donato herself, the trial judge addressed approximately 65 negative comments to the defendant’s attorney, 55 of which were made in the hearing of the jury. The following selected passages capture some of the tenor of the interaction between the trial court judge and the defendant’s attorney:
Defendant’s Attorney: Your Honor, may I be heard in response?
The Court: You may not be heard. You may ask the question.
Defendant’s Attorney: Thank you, Your Honor. When did you first speak with government representatives about—
The -Court: Oh, no, no, no, no. Then maybe you’d better approach the bench.
Tr. 9/14/95 at 29.
Defendant’s Attorney: Was that in or about January of 1993?
Fraser: I would say in that time frame. Defendant’s Attorney: So, it is fair to say that you continued—
The Court: No, no, no. Don’t you dare characterize this witness’s testimony. Don’t you dare. And that’s exactly what you were getting ready to do, “Isn’t it *297fair,” and I know that’s what you were getting ready to do, and that’s improper.
Tr. 9/14/95 at 82.
Defendant’s Attorney: Do you recall whether you used the word “stolen”?
The Court: Used the word what?
Defendant’s Attorney: Whether he used the word “stolen”?
Fraser: When?
Defendant’s Attorney: At the conversation in the month you can’t recall but where the subject you say first came up.
The Court: No one knows what you’re talking about except you.
Defendant’s Attorney: Let me try again.
The Court: You’d certainly better try it again. The jury won’t know what he’s answering if he answers.
Tr. 9/14/95 at 145.
Defendant’s Attorney: Your Honor, we’ve had a lot of—
The Court: Excuse me.
Defendant’s Attorney: I’m sorry.
The Court: You know I have been here. You know I’ve been here, don’t you?
Defendant’s Attorney: No, I don’t, actually-
The Court: You don’t know?
Defendant’s Attorney: To Danker’s, no.
The Court: I’m saying to you, you know I have been here in this courtroom, don’t you?
Defendant’s Attorney: Of course.
The Court: You’ve never missed me, have you?
Defendant’s Attorney: Certainly not, Your Honor.
The Court: Okay. Well, I certainly know what you’re talking about.
Tr. 9/18/95 at 145-46.
Defendant’s Attorney: Did your work for Martin Marietta ever involve you in going into the DOT building?
The Court: How dare you ask that question. There is no relevance to that now, all right. No relevance. You heard me, sir.
Tr. 9/18/95 at 149.
All of the above, and numerous similar, exchanges took place in open court. The judge saved some of her more critical comments for conferences at the bench.
The Court: I can’t believe you. I honestly and truly cannot believe you. Mr. Weinberg, I have just never seen such an egregious display of disrespect for the Court. What is it you want to ask me?
Defendant’s Attorney: With respect, Your Honor, no disrespect of the Court is intended.
The Court: Excuse me—
Defendant’s Attorney: I was trying to comply with the Court’s ruling not to ask leading questions by obtaining an advance ruling as to whether the last question I wanted to ask would be considered leading. The Court: Just let me say this to you. I shouldn’t even have to tell an attorney not to ask leading questions. I shouldn’t even have to tell an attorney not to ask leading questions. I should not have to have exercised so many rulings in this case about leading questions. I would suggest to you that by the second year of law school most law students, not to mention lawyers, know what a leading question is. So, please, sir, don’t tell me that you, a member of the bar for more than 30 years, could come in here and say to me that you were trying to avoid asking leading questions. You should never suggest that. You know better. And then to stand there and ask me if you can ask a question in the presence of the jury for me to determine whether or not it’s leading is disingenuous. It is disingenuous. It is disingenuous. It is absolutely disingenuous.
Tr. 9/19/95 at 38.
The Court: That question could only bring about hearsay, asking him did he ever hear Ms. Donato mention anything about her car. That would be clearly hearsay. Defendant’s Attorney: May I proffer the reason for the question?
*298The Court: I don’t care what the reason for the question is. Do you agree with me that that would be inadmissible hearsay? Defendant’s Attorney: If offered for the truth of it.
The Court: I don’t care for what purpose. I don’t care what purpose. Wouldn’t you agree that it’s inadmissible hearsay? Defendant’s Attorney: It’s not inadmissible if it’s offered for the purpose for which I’m offering it. I’m simply trying to direct the witness’s attention to October 8, 1992. If I ask him if he recalls that specific day, he won’t. If I ask him if he recalls the day before he heard the car was stolen then— The Court: No, sir. No, sir. No, sir. That’s inadmissible hearsay.
Tr. 9/15/95 at 99-100.
The government suggests that the trial court was evenhanded in her approach to the attorneys, but the record will not support such a conclusion. The government lists several examples of instances in which it says the court interrupted the prosecutor or restricted the answers of government witnesses. In these cited instances, however, the court’s intrusion frequently was either neutral or actually helped the government. The following example is typical of those cited by the government:
Prosecutor: Your Honor, again I would ask that those—
The Court: I would do it just a little differently. I would present to him 7A and ask him if I can identify that and tell us what it is, and then 7B. That’s the way I think you should do it.
Prosecutor: Thank you, Your Honor. I appreciate the Court’s preference.
The Court: Yes.
Tr. 9/13/95 at 111.
The government’s claim of evenhanded treatment is further belied by a comparison of the judge’s behavior during the parties’ closing arguments. Numerous times during his summation the prosecutor referred to Ms. Donato as a liar. See, e.g., Tr. 9/20/95 at 141-43. The judge allowed this to go on. While this was not reversible error, it does provide an interesting counterpoint to the judge’s treatment of the defendant’s closing argument.
During the defendant’s closing argument, her attorney was describing for the jury the testimony given by the character witness Retired Brigadier General Anson Schulz. Schulz had testified that at one point his company had worked on a joint project with Martin Marietta and he had worked under Ms. Donato. In reminding the jury of this testimony, Donato’s attorney referred to her as a “former second lieutenant in the Marines.” This occasioned an objection from the prosecutor and a lengthy bench conference during which the judge berated Dona-to’s attorney for mentioning that Donato had been a second lieutenant, even though there was record evidence that she had been in the Marines and that she had gone to Officer Candidate School. While the judge allowed the prosecutor to call the defendant a liar, she did not allow the defendant’s attorney to make reference to favorable character evidence that was arguably already in the record. The judge clearly gave the government a freer reign than she allowed to the defendant.
The government further argues that the judge’s comments are not enough to justify reversal on this ground because they do not rise to the level of hostility expressed by the court in Peckham v. United States, 210 F.2d 693 (D.C.Cir.1953). We agree with the government that no one comment by the trial judge in this case rises to the level of the trial judge’s warning in Peckham that if the defendant’s attorney said “another word, I will have the Marshal stick a gag in your mouth.” Id. at 704. We think, however, that the frequency, intensity, and one-sidedness of the court’s hostility raise a serious question as to whether the trial court evidenced sufficient bias that the defendant was unable to receive a fair trial. Logan, 998 F.2d at 1029 (“[W]e must determine ‘whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to perfect, trial.’ ”).
Even if we were still inclined to uphold the conviction against this claim of error a second factor distinguishes this case from Logan and Edmond. In both Logan and Edmond, *299we upheld a conviction against claims that the trial judge had expressed such hostility toward the defense that a fair trial was impossible. In each of these cases, this court found it significant that the challenged remarks of the trial judge had been directed at the attorneys rather than at the defendants themselves. Edmond, 52 F.3d at 1101; Logan, 998 F.2d at 1029.
In this case, by contrast, the trial judge did not exercise a similar restraint. On a number of occasions, the court sharply criticized the defendant. The following exchanges took place in the jury’s presence:
Donato: Could you ask me that again, Mr. Weinberg. I’m getting—
Defendant’s Attorney: May I rephrase the question, Your Honor?
The Court: Excuse me, ma’am. Let me just say this to you. We are in a court of law. We are not at a social event. You should listen very carefully to the questions put to you by your attorney and you should respond to only that qúestion being asked, all right.
Donato: I am trying desperately, Your Honor—
The Court: As I said to you—
Donato: — to answer those questions.
The Court: Let me say to you we don’t care how desperately you are trying to answer them. What we want you to do is to listen carefully to him and respond to him, all right—
Tr. 9/19/95 at 27-28.
The Court: Excuse me ma’am. That really isn’t the answer to the question. What, if anything, he asked you, transpired as a result of your meeting and discussing with him the work in your home on that date at the Hawk and Dove?
Donato: That’s what I was trying to answer, Your Honor.
The Court: You can answer it a lot more directly than you were attempting to.
Donato: I’ll give it another try.
The Court: No, no, no, no. It’s not a matter of giving it another try. It’s simply a question of answering the question as it was asked, all right.
Tr. 9/19/95 at 9-10.
The Court: ... So, instead of telling us what you did, can you answer his question? Donato: I am trying, Your Honor, yes.
The Court: No, no, you’re not. Answer his question.
Tr. 9/19/95 at 30.
Donato: I’m trying, Your Honor.
The Court: Well, no, you’re not. No, you’re not.
Tr. 9/19/95 at 50.
These comments are troubling because they suggest, in a case where the defendant’s credibility was a crucial issue, that the judge mistrusted the defendant. This court has noted before that “ ‘jurors hold the robed trial judge in great awe and reverence’ and ‘his lightest word or intimation is received with deference, and may prove controlling.’ ” United States v. Barbour, 420 F.2d 1319, 1322 (D.C.Cir.1969) (quoting Hawkins v. United States, 310 F.2d 849, 852 (D.C.Cir.1962), and Starr v. United States, 153 U.S. 614, 626, 14 S.Ct. 919, 923, 38 L.Ed. 841 (1894)). While this may somewhat overstate the case, it is certainly true that a jury is likely to give great credence to a judge’s view of the credibility of a witness. Trial judges should, to the greatest extent possible, avoid giving any hint as to whether they believe a particular witness is credible. This is especially true when the witness in question is the defendant. In this case the judge’s comments suggested that the defendant was not to be trusted.
These comments, combined with the near-constant criticism of the defendant’s counsel, raise in us a serious doubt as to whether this defendant received a fair trial. We have no choice, therefore, but to reverse on this ground as well.
We wish to emphasize that we are working no dramatic change in the law of this Circuit. Trial judges have always had, and continue to have, a wide discretion in conducting the trials before them. That discretion has always been limited by the requirement that the defendant receive a fair trial. In this case that standard was not met.
*300Conclusion
For the reasons set forth above, we conclude that the conviction must be reversed. At oral argument both parties agreed that if this case is retried, it should be reassigned. We agree with the parties and order that if this case does return to trial, it is to be assigned to a different judge.
3.1.13.6. OPTIONAL: The Courtroom as White Space: Racial Performance as Noncredibility
Student Note by Amanda Carlin, 63 UCLA L. Rev. 450 2016)
Read this article if you are interested in learning more about how the assesment of credibility in the "white space" of courtrooms serves to silence the voices of people of color at trial.
From the abstract: "Using Rachel Jeantel's testimony in the George Zimmerman trial as a case study, this Comment highlights credibility determinations as a tool of exclusion, and argues that the courtroom has always already discredited narratives and testimony of color."
Note: This student-authored article was cited in a 2021 case by a concurring judge to support the assertion that: "Reliance on demeanor as an indicator of credibility also allows the interjection of the subconscious influence of stereotypes and selective empathy, leading scholars to theorize that there is a “demeanor gap” along lines of culture, race, and gender." Vazquez Diaz v. Commonwealth, 167 N.E.3d 822, 844, 487 Mass. 336, 359 (Mass., 2021) (Kafker, J., concurring).
3.1.13.7 OPTIONAL: The Demeanor Gap: Race, Lie Detection, and the Jury, 3.1.13.7 OPTIONAL: The Demeanor Gap: Race, Lie Detection, and the Jury,
By Joseph W. Rand, 33 Conn. L. Rev. 12 (2000)
Read this excerpt if you're interested in hearing proposed solutions to the unreliablilty of cross-racial credibility evaluations.
Explanation of why jurors are bad at determining credibility in cross-racial evaluations:
“[T]he jury's responsibility to judge the credibility of a witness by her demeanor-not just by what she says but by how she says it-is one of *2 the hallmarks of our judicial system, undergirding cornerstone evidentiary and constitutional requirements such as the preference for live testimony,1 the bar on hearsay,2 and the right of confrontation. . . .
The assumption underlying this level of deference to the jury's lie-detecting role, of course, is that jurors are good at catching liars, that they are likely to perform well at evaluating credibility through demeanor. But this is not necessarily so, since a well-developed body of behavioral science research spanning the past thirty years demonstrates that the average person is not a particularly good lie-detector.7 Indeed, most observers in controlled studies detect deception about as well as a flipped coin, because they focus on “cues” to deception derived from folklore and common sense-such as the speaker's inability to maintain a steady gaze-that are often more a sign of discomfort than deception. . . .
This phenomenon-the inability of most observers to detect deception accurately-has even greater implications in cases where jurors have to overcome racial and cultural differences in determining a witness' credibility. . . .This Article submits that there exists . . . a “Demeanor Gap” in situations of cross-racial demeanor evaluation that undermines accuracy in credibility determinations: specifically, jurors of one race, even those well-intended and free of racial animus, will be unable to dependably judge the demeanor of a witness of a different race because they are unable to accurately decipher the cues that the witness uses to communicate sincerity.”
Three proposals for addressing the problems with credibility assessments in cross-racial evaluations:
1. Jury Instruction
Judges should be aware of the potential for a Demeanor Gap in any situation in which a predominantly white jury would be judging the credibility of predominantly African-American witnesses. In such situations, jurors should at least be told that certain cues to deception that they might regard as helpful might be culturally-developed and not universal, and that they might not be revealing of deception with regard to witnesses of another race. Moreover, jurors could even be informed that they might have difficulty evaluating the demeanor of such witnesses, and that they should therefore be careful to avoid making adverse judgments out of simple unfamiliarity with facial expressions or manners of speaking.288
At the very least, jurors should specifically be instructed that some of the folklore regarding lie-detection is inaccurate and misleading.289 Unfortunately, not only are courts unlikely to be aware of this fact, they are likely to promulgate some of the most useless stereotypes to the jury through instructions. Most jurors are instructed that, for example, they should pay attention to the “manner and conduct” of the witness in determining his credibility,290 which tends to focus juror attention on precisely those cues that are most misleading and easy to control: facial *72 expressions and body language.291 Jurors are also instructed that they should use their “common sense” in evaluating credibility, even though most jurors' common sense would lead them to focus on the same fallacious stereotypical correlates of deception.
Courts should therefore explain that some of the most treasured stereotypes about how liars act are in fact false and misleading to lie-detectors.292 A reminder that empirical research has shown that some stereotypical behaviors do not necessarily connote deception might put jurors in a better position to accurately evaluate testimony generally, particularly in cases of cross-racial evaluations.
2. Expert Testimony on Demeanor Evaluation
Courts could also ameliorate the effects of the Demeanor Gap by allowing expert testimony on cross-racial differences in lie-detection, and on demeanor evaluation in general. This is what the judge in the California ASL case did: having empaneled a non-ASL-fluent jury, the court permitted the defense to introduce an expert “to explain and interpret to the jury the subtle body language used by the deaf witnesses.”293 This way, the jurors would at least be able to make some informed judgements about the demeanor of those witnesses. . . .
The proposal is similar to situations in which experts testify about the potential unreliability of eyewitness testimony.302 In those cases, the experts do not opine on the “ultimate issue” of whether the particular eyewitness is correct, but educate the jurors about the identification dynamic generally. Just as cross-racial eyewitness identification is inherently less reliable than same-race identification,303 there are good reasons to believe that cross-racial lie-detection is similarly unreliable and deserving of expert attention.
3. Increasing the Awareness of Legal Actors
Finally, legal actors can help reduce problems associated with the Demeanor Gap simply by being aware of its existence. Defense lawyers, prosecutors, and judges should all at least consider the possibility that cross-racial demeanor evaluation is fraught with complexity having nothing to do with simple racial animus.
. . .
3.2 Class 6 3.2 Class 6
3.2.1 Merritt & Simmons Textbook Assignment 3.2.1 Merritt & Simmons Textbook Assignment
In the Merritt & Simmons textbook, please read Chapters 17 & 18. There are no meaningful distinctions between the Third and Fourth editions for these chapters.
3.2.2 Rule 607 3.2.2 Rule 607
Any party, including the party that called the witness, may attack the witness’s credibility.
Excerpt from Advisory Committee Notes:
The traditional rule against impeaching one's own witness is abandoned as based on false premises. A party does not hold out his witnesses as worthy of belief, since he rarely has a free choice in selecting them. Denial of the right leaves the party at the mercy of the witness and the adversary. . . . The substantial inroads into the old rule made over the years by decisions, rules, and statutes are evidence of doubts as to its basic soundness and workability.
3.2.3 New York Default Jury Instruction on Credibility of Witnesses 3.2.3 New York Default Jury Instruction on Credibility of Witnesses
This New York state jury instruction highlights some of the possible grounds for impeachment in plain-language.
As judges of the facts, you alone determine the truthfulness and accuracy of the testimony of each witness. You must decide whether a witness told the truth and was accurate, or instead, testified falsely or was mistaken. You must also decide what importance to give to the testimony you accept as truthful and accurate. It is the quality of the testimony that is controlling, not the number of witnesses who testify.
Accept in Whole or in Part (Falsus in Uno)
If you find that any witness has intentionally testified falsely as to any material fact, you may disregard that witness's entire testimony. Or, you may disregard so much of it as you find was untruthful, and accept so much of it as you find to have been truthful and accurate.2
Credibility factors
There is no particular formula for evaluating the truthfulness and accuracy of another person's statements or testimony. You bring to this process all of your varied experiences. In life, you frequently decide the truthfulness and accuracy of statements made to you by other people. The same factors used to make those decisions, should be used in this case when evaluating the testimony.
In General
Some of the factors that you may wish to consider in evaluating the testimony of a witness are as follows:
Did the witness have an opportunity to see or hear the events about which he or she testified?
Did the witness have the ability to recall those events accurately?
Was the testimony of the witness plausible and likely to be true, or was it implausible and not likely to be true?
Was the testimony of the witness consistent or inconsistent with other testimony or evidence in the case?
Did the manner in which the witness testified reflect upon the truthfulness of that witness's testimony?
To what extent, if any, did the witness's background, training, education, or experience affect the believability of that witness's testimony?
Did the witness have a bias, hostility or some other attitude that affected the truthfulness of the witness's testimony?3
Motive
You may consider whether a witness had, or did not have, a motive to lie.
If a witness had a motive to lie, you may consider whether and to what extent, if any, that motive affected the truthfulness of that witness's testimony.
If a witness did not have a motive to lie, you may consider that as well in evaluating the witness's truthfulness.4
Interest/Lack of Interest 6
You may consider whether a witness has any interest in the outcome of the case, or instead, whether the witness has no such interest.
You are not required to reject the testimony of an interested witness, or to accept the testimony of a witness who has no interest in the outcome of the case.
You may, however, consider whether an interest in the outcome, or the lack of such interest, affected the truthfulness of the witness's testimony.
Previous Criminal Conduct7
You may consider whether a witness has been convicted of a crime or has engaged in criminal conduct, and if so, whether and to what extent it affects the truthfulness of that witness's testimony.
You are not required to reject the testimony of a witness who has been convicted of a crime or has engaged in criminal conduct, or to accept the testimony of a witness who has not.
You may, however, consider whether a witness's criminal conviction or conduct has affected the truthfulness of the witness's testimony.
[Note: Add if appropriate:
With respect to the defendant, such prior convictions or criminal conduct are not evidence of defendant's guilt in this case, or evidence that defendant is a person who is disposed to commit crimes. You are permitted to consider such convictions or conduct only to evaluate the defendant's truthfulness.]
Inconsistent Statements8
You may consider whether a witness made statements at this trial that are inconsistent with each other.
You may also consider whether a witness made previous statements that are inconsistent with his or her testimony at trial.
If a witness has made such inconsistent statements [or omissions], you may consider whether and to what extent they affect the truthfulness or accuracy of that witness's testimony here at this trial.
The contents of a prior inconsistent statement are not proof of what happened. You may use evidence of a prior inconsistent statement only to evaluate the truthfulness or accuracy of the witness's testimony here at trial.10
Consistency
You may consider whether a witness's testimony is consistent with the testimony of other witnesses or with other evidence in the case.
If there were inconsistencies by or among witnesses, you may consider whether they were significant inconsistencies related to important facts, or instead were the kind of minor inconsistencies that one might expect from multiple witnesses to the same event?
Police Testimony
In this case you have heard the testimony of (a) police officer(s). The testimony of a witness should not be believed solely and simply because the witness is a police officer. At the same time, a witness's testimony should not be disbelieved solely and simply because the witness is a police officer. You must evaluate a police officer's testimony in the same way you would evaluate the testimony of any other witness.11
3.2.4 Rule 613 3.2.4 Rule 613
(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).
Excerpt from Advisory Committee Notes:
he Queen's Case, 2 Br. & B. 284, 129 Eng. Rep. 976 (1820), laid down the requirement that a cross-examiner, prior to questioning the witness about his own prior statement in writing, must first show it to the witness. . . . The rule abolishes this useless impediment, to cross-examination. . . . Both oral and written statements are included.
The provision for disclosure to counsel is designed to protect against unwarranted insinuations that a statement has been made when the fact is to the contrary.
3.2.5 Third Circuit Jury Instruction re Prior Inconsistent Statement (Rule 613) 3.2.5 Third Circuit Jury Instruction re Prior Inconsistent Statement (Rule 613)
You have heard the testimony of Joe Smith. You have also heard that before this trial he made a statement that may be different from his testimony in this trial. It is up to you to determine whether this statement was made and whether it was different from the witness(es)’ testimony in this trial. This earlier statement was brought to your attention only to help you decide whether to believe the witness’ testimony here at trial. You cannot use it as proof of the truth of what the witness said in the earlier statement. You can only use it as one way of evaluating the witness’ testimony in this trial.
3.2.6. A Demonstration of Impeachment by Prior Inconsistent Statement
Just 2 minutes long!
3.2.7 The New Wigmore: Categories of Impeachment Evidence 3.2.7 The New Wigmore: Categories of Impeachment Evidence
This excerpt breaks impeachment down into five categories. The fourth category (Bad character for truthfulness) is one that you won’t read about until next week, so you can skim that category for now and come back to it later.
§ 2.1 INTRODUCTION; CATEGORIES OF IMPEACHMENT EVIDENCE
The term impeachment refers to a range of strategies that attempt to undermine the credibility of a witness. Some impeachment focuses on the ability of the witness to perceive or recall the matters about which he has testified.1 Other impeachment highlights character defects or biases that may lead the witness to distort her testimony, either consciously or unconsciously.2 The bottom line is that impeachment is only relevant to the extent that it casts doubt on the believability of witness testimony.
Generally, the judge will not permit impeachment of a person unless that person actually testifies. For purposes of the impeachment rules, the term witness does not mean any person who has perceived the event at issue, but rather a person who is giving testimony. One exception is that courts usually allow impeachment of an out-of-court declarant whose statements the opponent has introduced. The impeaching attorney may attack such a hearsay declarant with other hearsay uttered by the same declarant, or may even call the declarant in order to impeach him as if he had actually testified.3
Most impeachment involves an attack on a witness by the opponent of that witness. Occasionally, however, the party calling the witness will impeach that witness.4 This impeachment is usually allowable when the witness has both surprised and damaged the proponent.5 Some courts allow the proponent to impeach its own witness upon a lesser showing such as genuine uncertainty as to what the witness would say on the stand.6 Another scenario in which a proponent may impeach its own witness is when the proponent has persuaded the judge to designate the witness hostile, in which case the proponent may use the full range of impeachment tools that are normally available upon cross-examination.7
The most efficient way to impeach a witness is to ask leading, tightly controlled questions on cross-examination. It is axiomatic that the impeaching attorney should not ask a question unless the attorney already knows the answer to that question. The impeaching attorney should be careful not to embarrass excessively a witness whose limitation is not morally blameworthy--for example, a senior citizen whose testimony is suspect due to faulty eyesight or hearing. The court has authority to constrain impeachment that unduly harasses a witness.8
From time to time, a proponent of a witness may seek to introduce evidence of that person's foibles even though the proponent does not intend to attack the witness. This strategy is known as “fronting.” The idea is to anticipate, and reduce the impact of, the opponent's impeachment by introducing evidence of the witness's shortcomings before the opponent does. The early disclosure of the witness's baggage may give the jury a favorable impression of the proponent's candor. At a minimum, a matter-of-fact discussion of impeachable facts on direct examination will reduce the sting of the evidence when the opponent brings it up again on cross-examination.9
Pre-trial briefing may be useful in establishing the admissibility of impeachment evidence, or in persuading the judge to exclude the opponent's impeachment evidence. Courts may grant pre-trial motions in limine where the admissibility or inadmissibility of the evidence is plain. For instance, a court would likely grant a pre-trial motion seeking to exclude impeachment evidence that rests solely on the religion, race, or gender of the witness. On the other hand, the admissibility of some impeachment evidence such as the prior convictions of the accused may be a difficult matter to assess in advance of trial, and the court may defer its ruling until evaluating the circumstances at the time the government seeks to offer the evidence. If the court has denied a motion in limine under these circumstances, the accused must testify in order to preserve the possibility of appellate review.10
There are five broad categories of impeachment evidence, each of which is summarized briefly below.
§ 2.1.1 EVIDENCE OF BIAS
The impeaching attorney may introduce evidence demonstrating that the target witness has a bias to favor or disfavor a party. The term bias refers to any ulterior motive that might cause the witness to skew his or her testimony. Examples of bias based on animosity toward a party might include racial prejudice, economic rivalry, competition for the same romantic partner, or hostility due to a past altercation. Examples of bias based on sympathy for a party might include a family relationship, economic dependence, common membership in a church or other house of worship, or a plea agreement with a cooperation provision whereby a witness might receive a reduced sentence for assisting the prosecution in the present case.
Bias is always relevant. It is never a collateral issue.11 The mere fact that the witness has taken the stand is sufficient to make her bias a relevant issue. The trial court will need to weigh prejudice versus probative value, but the leading Supreme Court opinion indicates that the trial court may reduce the risk of prejudice with redaction and cautionary instructions to the jury.12 The Court seems to prefer presenting the jury with bias evidence in sanitized form rather than excluding bias evidence altogether.
§ 2.1.2 EVIDENCE OF DEFECTS IN PERCEPTION AND RECALL
Ordinarily a witness may not testify unless he has personal knowledge of the matter about which he testifies.13 Personal knowledge is firsthand knowledge.14 (Experts are not necessarily subject to this rule,15 as discussed further in the volume on expert testimony.)
The requirement of first-hand knowledge necessitates that a witness must have been able to perceive the matter in question. Defects in the perceptive faculties--sight, hearing, smell, touch, and taste--will be relevant to the extent that these faculties were necessary for the witness to gain first-hand knowledge.16
There are many ways to demonstrate defects in perception. The impeaching attorney may elicit an admission on cross-examination, may conduct a demonstration in court, may examine a third-party witness about the vision of the target witness, or may introduce medical records concerning defects in vision.17
Memory is also crucial to first-hand knowledge.18 A witness who lacks memory on the stand will not be able to relay accurately the matters perceived out of court, no matter how acute the perception of the witness in the first instance.
§ 2.1.3 EVIDENCE OF BAD CHARACTER FOR TRUTHFULNESS
Some witnesses may be vulnerable to impeachment on the ground that they have a poor character for truthfulness. Usually this impeachment ground is not specific to the facts at issue in a particular case. Rather, the claim is that the witness has a general character defect in that the witness is prone to deceitfulness.
There are three ways to show poor character for truthfulness. One technique is to introduce convictions that bear on veracity. A conviction for any crime involving dishonesty as an element will certainly qualify as a proper ground for impeachment, whether that crime was a felony or misdemeanor.19 In addition, a conviction for any crime potentially punishable by death or at least a year and a day in prison will qualify, whether or not that crime involved dishonesty.20
A second way to show bad character for truthfulness is to introduce evidence of unconvicted acts bearing on veracity.21 Examples might include unconvicted crimes that involved dishonesty or noncriminal conduct in which the witness deceived another person. The major limitation on this strategy is that the impeaching attorney must take the answer of the witness on the stand; the rules do not permit the introduction of extrinsic evidence to prove unconvicted prior acts for the purpose of impeachment.22
A third technique is to introduce the testimony of a third-party character witness concerning the veracity of the target witness.23 The third-party witness could offer her own opinion concerning the character of the target witness, assuming that the impeaching attorney can lay a proper foundation to show that the character witness has enough familiarity with the target witness. As an alternative, the third-party character witness could discuss the reputation of the target witness within a particular community, assuming again that the third-party witness is familiar with that community. One constraint on the effectiveness of this impeachment technique is that the third-party character witness must offer a conclusory opinion; she may not discuss specific acts except on cross-examination by the opposing attorney.24
It is important to remember that the above-listed techniques are only available to impeach testifying witnesses. If a potential witness does not take the stand, the opponent will be unable to offer evidence under Rules 608 and 609 for the purpose of impeaching that witness. (Hearsay declarants are impeachable under Rule 806 as if they had actually taken the stand.25) Other rules besides Rules 608 and 609 might provide a vehicle for evidence of prior crimes or bad acts committed by nontestifying witnesses--for example, Rule 40426--but the impeachment rules are unavailing in this situation.
§ 2.1.4 EVIDENCE OF PRIOR INCONSISTENT STATEMENTS
Evidence of prior inconsistent statements can undermine the credibility of a witness. The implication is that one of the statements was at least mistaken, and possibly also deceitful. Some impeaching attorneys highlight the inconsistency with dramatic questions such as, “Were you lying then or are you lying now?”
Evidence of prior inconsistent statements may take two forms. First, the impeaching attorney may introduce an inconsistent statement made by the target witness in another highly formal setting, such as a prior trial, hearing, deposition, or grand jury proceeding.27 Assuming that the witness is now available for cross-examination, the impeaching attorney may use the prior inconsistent statement for both substantive and non-substantive purposes. In other words, the impeaching attorney may use the statement to show the truth of the matter asserted therein as well as to show the fact of inconsistency.
For other inconsistent statements, the scope of permissible use is narrower. The impeaching attorney may only offer the inconsistent statement to demonstrate inconsistency, not to show the substantive truth of the prior statement.28 As a practical matter, the jury may have trouble compartmentalizing the evidence for such a limited purpose, but the opponent may request a limiting instruction from the court to ensure against substantive use of the prior statement.29
Of course, the foregoing limitations do not apply to inconsistent statements by a party-opponent.30 The impeaching attorney may use prior admissions by a party-opponent for substantive purposes no matter whether the party-opponent made these statements in a formal setting, and no matter whether the party-opponent is willing to submit to cross-examination at the present time.
Some authority indicates that extrinsic evidence of prior inconsistent statements may not be “collateral”--that is, unrelated to a material issue in the case.31In other words, the impeaching attorney may not point out that the target witness spoke inconsistently about a detail that is inconsequential in the trial. The practical effect of this rule is that it bans extrinsic evidence of inconsistent statements, unless the evidence is separately admissible for a purpose other than showing the inconsistency. If the challenged evidence is sufficiently relevant to meet the low bar established by Rule 401,32 then it is not collateral.
An impeaching attorney may cross-examine a witness regarding a prior inconsistent statement without showing a copy of the statement to that witness. The impeaching attorney must, however, show the statement to opposing counsel upon request.33 Further, unless the target witness is the party-opponent, the impeaching attorney must give the witness a chance to explain or deny the prior statement before the impeaching attorney may introduce any evidence of the statement other than the admission of the target witness.34
§ 2.1.5 CONTRADICTION
One way to attack the credibility of a witness is simply to present other substantive evidence that tells a different story. For example, if the target witness indicates that the blue car had a green light at the time of the collision, opposing counsel might call a different witness who would testify that the blue car ran a red light.
Such evidence may not necessarily belong under the rubric of impeachment because the evidence does not directly challenge the credibility of the target witness. Nonetheless, it is important to keep contradiction in mind as one of the many strategies available to attorneys who seek to limit the damage done by an opponent's witness.
Contradiction must be relevant in its own right. In other words, the attorney offering counterproof should not simply insist that her evidence is relevant because the opposing party's witness incidentally made a different point on direct examination.35 To put it differently, immaterial evidence does not always become material simply because it contradicts the opponent's evidence.
Even when relevance is questionable, the court may be willing to admit counterproof if the opponent has “opened the door” with respect to an issue by stressing it in direct examination. The opponent's emphasis of the issue on direct examination makes his relevance objection seem disingenuous.
3.2.8 United States v. Abel 3.2.8 United States v. Abel
United States v. Abel, the case mentioned in your text, is the Supreme Court’s clearest (and most frequently cited) treatment of bias-based impeachment. The opinion also incorporates an assessment of relevance (under 401 and 402) and 403 balancing.
UNITED STATES v. ABEL
No. 83-935.
Argued November 7, 1984
Decided December 10, 1984
*46Rehnquist, J., delivered the opinion for a unanimous Court.
Assistant Attorney General Trott argued the cause for the United States. With him on the brief were Solicitor General Lee, Deputy Solicitor General Frey, Samuel A. Alito, Jr., and Gloria C. Phares.
Yolanda Barrera Gomez, by appointment of the Court, post, p. 809, argued the cause for respondent. With her on the brief was Peter M. Horstman.
delivered the opinion of the Court.
A divided panel of the Court of Appeals for the Ninth Circuit reversed respondent’s conviction for bank robbery.1 The Court of Appeals held that the District Court improperly admitted testimony which impeached one of respondent’s *47witnesses. We hold that the District Court did not err, and we reverse.
Respondent John Abel and two cohorts were indicted for robbing a savings and loan in Bellflower, Cal., in violation of 18 U. S. C. §§ 2113(a) and (d). The cohorts elected to plead guilty, but respondent went to trial. One of the cohorts, Kurt Ehle, agreed to testify against respondent and identify him as a participant in the robbery.
Respondent informed the District Court at a pretrial conference that he would seek to counter Ehle’s testimony with that of Robert Mills. Mills was not a participant in the robbery but was friendly with respondent and with Ehle, and had spent time with both in prison. Mills planned to testify that after the robbery Ehle had admitted to Mills that Ehle intended to implicate respondent falsely, in order to receive favorable treatment from the Government. The prosecutor in turn disclosed that he intended to discredit Mills’ testimony by calling Ehle back to the stand and eliciting from Ehle the fact that respondent, Mills, and Ehle were all members of the “Aryan Brotherhood,” a secret prison gang that required its members always to deny the existence of the organization and to commit perjury, theft, and murder on each member’s behalf.
Defense counsel objected to Ehle’s proffered rebuttal testimony as too prejudicial to respondent. After a lengthy discussion in chambers the District Court decided to permit the prosecutor to cross-examine Mills about the gang, and if Mills denied knowledge of the gang, to introduce Ehle’s rebuttal testimony concerning the tenets of the gang and Mills’ and respondent’s membership in it. 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.
At trial Ehle implicated respondent as a participant in the robbery. Mills, called by respondent, testified that Ehle *48told 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.
Ehle testified that respondent, Mills, and he 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.
The jury convicted respondent. On his appeal a divided panel of the Court of Appeals reversed. 707 F. 2d 1013 (1983). The Court of Appeals held that Ehle’s rebuttal testimony was admitted not just to show that respondent’s and Mills’ membership in the same group might cause Mills to color his testimony; the court held that the contested evidence was also admitted to show that because Mills belonged to a perjurious organization, he must be lying on the stand. This suggestion of perjury, based upon a group tenet, was impermissible. The court reasoned:
“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, 367 U. S. 203, 219-24 . . . ; Brandenb[u]rg v. Ohio, 395 *49U. 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.” Id., at 1016 (citations omitted).
The court concluded that Ehle’s testimony implicated respondent as a member of the gang; but since respondent did not take the stand, the testimony could not have been offered to impeach him and it prejudiced him “by mere association.” Id., at 1017.
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.
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. Neither party has suggested what significance we should attribute to this fact. 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. See 28 U. S. C. §2076; 4 J. Bailey III & O. Trelles II, Federal Rules of *50Evidence: Legislative Histories and Related Documents (1980).
Before the present Rules were promulgated, the admissibility of evidence in the federal courts was governed in part by statutes or Rules, and in part by case law. See, e. g., Fed. Rule Civ. Proc. 43(a) (prior to 1975 amendment); Fed. Rule Crim. Proc. 26 (prior to 1975 amendment); Palmer v. Hoffman, 318 U. S. 109 (1943); Funk v. United States, 290 U. S. 371 (1933); Shepard v. United States, 290 U. S. 96 (1933). This Court had held in Alford v. United States, 282 U. S. 687 (1931), that a trial court must allow some cross-examination of a witness to show bias. This holding was in accord with the overwhelming weight of authority in the state courts as reflected in Wigmore’s classic treatise on the law of evidence. See id., at 691, citing 3 J. Wigmore, Evidence § 1368 (2d ed. 1923); see also District of Columbia v. Clawans, 300 U. S. 617, 630-633 (1937). Our decision in Davis v. Alaska, 415 U. S. 308 (1974), holds that the Confrontation Clause of the Sixth Amendment requires a defendant to have some opportunity to show bias on the part of a prosecution witness.
With this state of unanimity confronting the drafters of the Federal Rules of Evidence, we think it unlikely that they intended to scuttle entirely the evidentiary availability of cross-examination for bias. One commentator, recognizing the omission of any express treatment of impeachment for bias, prejudice, or corruption, observes that the Rules “clearly contemplate the use of the above-mentioned grounds of impeachment.” E. Cleary, McCormick on Evidence §40, p. 85 (3d ed. 1984). Other commentators, without mentioning the omission, treat bias as a permissible and established basis of impeachment under the Rules. 3 D. Louisell & C. Mueller, Federal Evidence § 341, p. 470 (1979); 3 J. Wein-stein & M. Berger, Weinstein’s Evidence ¶607[03] (1981).
We think this conclusion is obviously correct. Rule 401 defines as “relevant evidence” evidence having any tendency *51to 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, by 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.
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. See, e. g., United States v. James, 609 F. 2d 36, 46 (CA2 1979), cert. denied, 445 U. S. 905 (1980); United States v. Frankenthal, 582 F. 2d 1102, 1106 (CA7 1978); United States v. Brown, 547 F. 2d 438, 445-446 (CA8), cert. denied sub nom. Hendrix v. United States, 430 U. S. 937 (1977); United States v. Harvey, 547 F. 2d 720, 722 (CA2 1976); United States v. Robinson, 174 U. S. App. D. C. 224, 227-228, 530 F. 2d 1076, 1079-1080 (1976); United States v. Blackwood, 456 F. 2d 526, 530 (CA2), cert. denied, 409 U. S. 863 (1972).
We think the lesson to be drawn from all of this is that it is permissible to impeach a witness by showing his bias under the Federal Rules of Evidence just as it was permissible to do so before their adoption. In this connection, the comment of the Reporter for the Advisory Committee which drafted the Rules is apropos:
“In principle, under the Federal Rules no common law of evidence remains. ‘All relevant evidence is admissible, except as otherwise provided. . ..’ In reality, of course, *52the body of common law knowledge continues to exist, though in the somewhat altered form of a source of guidance in the exercise of delegated powers.” Cleary, Preliminary Notes on Reading the Rules of Evidence, 57 Neb. L. Rev. 908, 915 (1978) (footnote omitted).
Ehle’s testimony about the prison gang certainly made the existence of Mills’ bias towards respondent more probable. Thus it was relevant to support that inference. Bias is a term used in the “common law of evidence” to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest. Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony. The “common law of evidence” allowed the showing of bias by extrinsic evidence, while requiring the cross-examiner to “take the answer of the witness” with respect to less favored forms of impeachment. See generally McCormick on Evidence, supra, § 40, at 89; Hale, Bias as Affecting Credibility, 1 Hastings L. J. 1 (1949).
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. We do not read our holdings in Scales v. United States, 367 U. S. 203 (1961), and Brandenburg v. Ohio, 395 U. S. 444 (1969), to require a different conclusion. Those cases dealt with the constitutional requirements for convicting persons under the Smith Act and state syndicalism laws for belonging to organizations which espoused illegal aims and engaged in illegal *53conduct. Mills’ and respondent’s membership in the Aryan Brotherhood was not offered to convict either of a crime, but to impeach Mills’ testimony. Mills was subject to no sanction other than that he might be disbelieved. Under these circumstances there is no requirement that the witness must be shown to have subscribed to all the tenets of the organization, either casually or in a manner sufficient to permit him to be convicted under laws such as those involved in Scales and Brandenburg.2 For purposes of the law of evidence the jury may be permitted to draw an inference of subscription to the tenets of the organization from membership alone, even though such an inference would not be sufficient to convict beyond a reasonable doubt in a criminal prosecution under the Smith Act.
Respondent argues that even if the evidence of membership in the prison gang were relevant to show bias, the District Court erred in permitting a full description of the gang and its odious tenets. Respondent contends that the District Court abused its discretion under Federal Rule of Evidence 403,3 because the prejudicial effect of the contested evidence outweighed its probative value. In other words, testimony about the gang inflamed the jury against respondent, and the chance that he would be convicted by his mere association with the organization outweighed any probative value the testimony may have had on Mills’ bias.
*54Respondent 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.
A district court is accorded a wide discretion in determining the admissibility of evidence under the Federal Rules. Assessing the probative value of common membership in any particular group, and weighing any factors counseling against admissibility is a matter first for the district court’s sound judgment under Rules 401 and 403 and ultimately, if the evidence is admitted, for the trier of fact.
Before admitting Ehle’s rebuttal testimony, the District Court gave heed to the extensive arguments of counsel, both in chambers and at the bench. In an attempt to avoid undue prejudice to respondent the court ordered that the name “Aryan Brotherhood” not be used. The court also offered to give a limiting instruction concerning the testimony, and it sustained defense objections to the prosecutor’s questions concerning the punishment meted out to unfaithful members. These precautions did not prevent all prejudice to respond*55ent from Ehle’s testimony, but they did, in our opinion, ensure that the admission of this highly probative evidence did not unduly prejudice respondent. We hold there was no abuse of discretion under Rule 403 in admitting Ehle’s testimony as to membership and tenets.
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.”4 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.
Respondent claims that the prosecutor cross-examined Mills about the gang not to show bias but to offer Mills’ membership in the gang as past conduct bearing on his veracity. This was error under Rule 608(b), respondent contends, because the mere fact of Mills’ membership, without more, was not sufficiently probative of Mills’ character for truthfulness. Respondent cites a second error under the same Rule, contending that Ehle’s rebuttal testimony concerning the gang was extrinsic evidence offered to impugn Mills’ veracity, and extrinsic evidence is barred by Rule 608(b).
The Court of Appeals appears to have accepted respondent’s argument to this effect, at least in part. It said:
“Ehle’s testimony was not simply a matter of showing that Abel’s and Mills’ membership in the same organization might ‘cause [Mills], consciously or otherwise, to color his testimony.’ . . . Rather it was to show as well *56that because Mills and Abel were members of a gang whose members ‘will lie to protect the members,’ Mills must be lying on the stand.” 707 F. 2d, at 1016.
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. But there is no rule of evidence which provides that testimony admissible for one purpose and inadmissible for another purpose is thereby rendered inadmissible; quite the contrary is the case. It would be a strange rule of law which held that relevant, competent evidence which tended to show bias on the part of a witness was nonetheless inadmissible because it also tended to show that the witness was a liar.
We intimate no view as to whether the evidence of Mills’ membership in an organization having the tenets ascribed to the Aryan Brotherhood would be a specific instance of Mills’ conduct which could not be proved against him by extrinsic evidence except as otherwise provided in Rule 608(b). It was enough that such evidence could properly be found admissible to show bias.
The judgment of the Court of Appeals is
Reversed.
707 F. 2d 1013 (1983).
In Scales and Brandenburg we discussed the First Amendment right of association as it bore on the right of persons freely to associate in political groups, short of participating in unlawful activity. See 395 U. S., at 449; 367 U. S., at 229-230. Whatever First Amendment associational rights an inmate may have to join a prison group, see Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U. S. 119 (1977), those rights were not implicated by Ehle’s rebuttal of Mills.
Rule 403 provides:
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue waste of time, or needless presentation of cumulative evidence.”
Rule 608(b) provides in pertinent part:
“(b) Specific instances of conduct. — Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness . . . .”
3.2.9 Abraham Lincoln impeaches a witness - transcript here! 3.2.9 Abraham Lincoln impeaches a witness - transcript here!
In 1858, William "Duff" Armstrong was tried in the Circuit Court of Illinois for the murder of James Metzker on the night of August 29, 1857. The State's star witness was Charles Allen, who testified on direct examination that he had seen Armstrong strike Metzker in the eye with a slingshot.
Mr. Duff’s defense attorney was a young man named Abraham Lincoln.
By Mr. Lincoln: Did you actually see the fight?
By Mr. Allen: Yes.
Q: And you stood very near to them?
A: No, it was one-hundred fifty feet or more.
Q: In the open field?
A: No, in the timber.
Q: What kind of timber?
A: Beech timber.
Q: Leaves on it are rather thick in August?
A: It looks like it.
Q: What time did all this take place?
A: Eleven o'clock at night.
Q: Did you have a candle there?
A: No, what would I want a candle for?
Q: How could you see from a distance of one-hundred fifty feet or more, without a candle, at eleven o'clock at night?
A: The moon was shining real bright.
Q: Full moon?
A: Yes, a full moon.
At this point in the trial, Lincoln withdrew a blue-covered almanac from his back pocket, opened it slowly to the astronomy table for the night in question and placed it before the witness. Lincoln then continued with his cross-examination ...
Q: Does not the almanac say that on August 29th the moon was barely past the first quarter instead of being full?
A: (No audible answer from the witness)
Q: Does not the almanac also say that the moon had disappeared by eleven o'clock?
A: (No audible answer from the witness)
Q: Is it not a fact that it was too dark to see anything from so far away, let alone one-hundred fifty feet?
A: (No audible answer from the witness)
The defendant, William "Duff" Armstrong, was thereafter found not guilty.
Comprehension Questions Set 6 Comprehension Questions Set 6
3.2.10 OPTIONAL for Class 6 3.2.10 OPTIONAL for Class 6
OPTIONAL: A Simple, Reliable Script for Impeachment by Prior Inconsistent Statement OPTIONAL: A Simple, Reliable Script for Impeachment by Prior Inconsistent Statement
by Marsha Hunter
A Simple, Reliable Script for Impeachment by Prior Inconsistent Statement
by Marsha Hunter
Listening to the direct examination of opposing counsel’s witness, you hear what you are fairly certain is an inconsistency from his deposition. Your internal “Impeachment Alert” goes off in your head because it is a significant difference. You begin to consider your options.
Looking at the deposition, you confirm that you are correct. You now begin to plan where in your cross-examination you will insert the impeachment, considering how sympathetic he is, what you need from him before he becomes defensive and annoyed, and how the dramatic arc of the impeachment would fit into the examination.
Your heart begins to beat a bit faster—you now must rise to the challenge of executing a smooth impeachment. If you fail to get the order right, inject the proper amount of scorn/surprise/incredulity in your voice, fumble with pieces of paper, or forget to ask the judge to approach the witness, you risk looking foolish and unprofessional. This has to go well, or the fact finder might not fully understand what’s going on.
If you have practiced for this, your heartbeat will slow with a few deep breaths at counsel table. Just in case you haven’t practiced lately, though, here is a refresher. The skill of impeaching by prior inconsistent statement needs visiting occasionally, since you may not get a chance to use it often. When the opportunity presents itself, you can have fun if the ritual is clear in your mind.
Why do I say this is fun? Because this is where you come as close as you’ll ever get to being an actor in a TV or movie courtroom scene. You can be amazed, incredulous, or sarcastic! Let your hair down and act shocked. When you finish, you can resume your normal professional persona, but don’t forget to enjoy yourself.
I call it a ritual because that is a fair and accurate way to characterize it. Impeachment unfolds in a predictable order. It has a beginning, a middle, and an end. The first few steps are almost always the same. The last step should always be the same. The middle can be short and sweet, or longer and more torturous for the witness—your choice, as long as you have the following options on the tip of your tongue.
How To Impeach a Witness with Deposition Testimony
Beginning of Impeachment
Q: (voice dripping with disbelief and amazement) Mr. Witness, are you telling this jury today that the light was GREEN?
A: Yes, the light was green.
Q: (collecting yourself to be professional) This isn’t the first time you and I have talked about this, is it?
A: No.
Middle of Impeachment
(You may make this long or short depending on what has been going on in court. You may have already impeached this witness, so you won’t want to draw this out. This may be the first impeachment in the trial, giving you more leeway to linger on the drama. It is your call.)
Q: You came to my office for a deposition.
A: Yes.
Q: It was two months after the accident, correct?
A: Yes.
Q: Much closer in time to the accident than today?
A: Yes.
Q: When you came to my office for your deposition, your attorney was with you.
A: Yes.
Q: There was a court reporter there.
A: Yes.
Q: You took an oath to tell the truth?
A: Yes.
Q: You told the truth.
A: Yes.
Q: After your deposition, you had a chance to read it.
A: Yes.
Q: You could make corrections?
A: Yes.
Q: In fact, you did make corrections that day.
A: Yes.
Q: You also had a chance to sign your deposition.
A: Yes.
Q: And, you signed it.
A: Yes.
Q: You signed it to show you approved of what was in it.
A: Yes.
(If the witness needs a copy of his deposition, you may want to hand it to him, or alternatively, show him your copy as you continue the examination.)
Q: Your Honor, may I approach the witness?
Court: Yes you may.
End of Impeachment
(Now you have two things to accomplish. Show him the prior inconsistent statement, and read it out loud. Get in, and get out. Do not let him read it or give any opinion about it.)
Q: Do you see Page 38, Line 14?
A: Yes.
Q: “Question: What color was the light? Answer: The light was red.” Did I read that correctly?
A: Yes.
(Alternatively, you may ask:)
Q: “Question: What color was the light? Answer: The light was red.” Is that what it says?
A: Yes.
That’s it. You are finished. STOP! Do not ask, “Is that what you said?” He will argue that she did not say it. Do not ask, “Were you telling the truth then, or today?” He will say, “Today.”
Here is your simple structure, consisting of a succinct beginning and ending, with an expandable middle:
Beginning: Are you telling us today……?
Middle: This isn’t the first time we’ve talked about this, is it? (Your dramatic retelling of The Story of His Deposition.)
End: Did I read that correctly?
Wrapping Up a Reliable Impeachment
My goal is to keep the structure as simple as possible, so you can think of it while you are in the midst of a cross-examination.
What are your ideas? How do you execute a smooth, reliable impeachment by prior inconsistent statement?
OPTIONAL: Transcript of defense impeachment of a police officer with a prior inconsistent statement OPTIONAL: Transcript of defense impeachment of a police officer with a prior inconsistent statement
This is a pdf document so it will be posted on Moodle.
3.2.10.1 OPTIONAL: Discussion of Rule 613 from: THE DISPARATE IMPACT OF THE MARYLAND RULES ON BLACK AND BROWN INDIVIDUALS 3.2.10.1 OPTIONAL: Discussion of Rule 613 from: THE DISPARATE IMPACT OF THE MARYLAND RULES ON BLACK AND BROWN INDIVIDUALS
April 20, 2021
This Report was prepared in 2021 at the request of the Rules Review Subcommittee of the Maryland Judiciary’s Committee on Equal Justice. What's exciting is that the authors of this report are law students from two clinics at the Univ. of Maryland School of Law!
This excerpt includes the portion of the report dedicated to Rule 613. Maryland's Rule 613 is a little different from the federal rule - that's why I made this reading optional, beacuse I didn't want to confuse things. But you can jump down to the "Problems" section to see the critique. Also, I've included the relevant footnotes for this section but you don't need to read them.
University of Maryland Francis King Carey School of Law Criminal Defense Clinic
Summer Akhtar, Rose Cowan, Meghan Howie, Kathryn Meader, Veronica Mina, Daniel Mooney, Avery Potts, Kelsey Robinson, and Maneka Sinha, Esq.
University of Maryland Francis King Carey School of Law Youth, Education, and Justice Clinic Sarah Abutaleb, Alex Greenspan, Maya Jackson, and Michael Pinard, Esq.
[omitted]
Rule 5-613 Prior Statements of Witnesses
“The credibility of a witness may be impeached by showing that the witness has made” contradictory statements about material facts.278 “Such statements can include those made by the witness in the form of testimony at a prior judicial proceeding”279 or a “witness's spoken words reduced to writing by a third party, and the witness ratifies such writing by signing, adopting, or approving it.”280 The impeaching party must establish proper foundation.281 Proper foundation must be laid for admission of “extrinsic evidence of prior inconsistent statements of a witness [] in order to be fair and just to the witness so that he [or she] may be enabled to refresh his [or her] recollection in regard to such statements,” so that he may or she “admit or deny it,” or explain the statement.282 “Before extrinsic evidence may be used to impeach a witness about his [or her] prior inconsistent statement,” the witness must deny the statement.283
Extrinsic evidence of a prior inconsistent statement may be admitted without these requirements under the “interests of justice” exception.284 When evaluating the admissibility of a statement under the “interests of justice” exception, the trial court must weigh the statement against: “(1) the practicability of recalling the witness, including that witness's availability; (2) the significance of the issue to which the statement relates; (3) the probative value of the statement for impeachment purposes; (4) balancing the consequences of not allowing the statement into evidence with the likelihood that, if questioned, the witness could deny the statement or provide a reasonable explanation; and (5) the efficacy of an instruction to a jury that has heard a prior inconsistent statement without comment by the witness who made the statement; calculus should also include consideration of the good faith and reasonable diligence of counsel in discovering the prior inconsistent statement sought to be introduced.”285
The Problems
Impeachment by prior inconsistent statements depends on the accuracy of the initial statement.286 However, research reveals that where the speaker has a certain dialect, the initial statements have a higher rate of inaccuracy.287 These inaccuracies disproportionately affect Black and Brown individuals.288 According to one study of court reporters in Philadelphia, when a witness spoke with a dialect known as African American English, reporters made errors in two out of every five sentences.289 These inaccuracies in transcribed statements undercuts the credibility of Black and Brown witnesses.290
Recommendations
The Maryland judiciary should describe the high rate of inaccuracies in statements of Black and Brown witnesses in a Committee Note. In addition, as research continues about the accuracy of transcription of other American dialects, not just African American English, the judiciary should stay abreast on the results of this research.291 Lastly, the accuracy in dialects of court reporting in Maryland should be tested alongside mainstream English.292
Footnotes:
- 278 Gonzalez v. State, 388 Md. 63, 70 (2005); see also MD. R. EVID. 5-613 (“(a) Examining witness concerning prior statement. A party examining a witness about a prior written or oral statement made by the witness need not show it to the witness or disclose its contents at that time, provided that before the end of the examination (1) the statement, if written, is disclosed to the witness and the parties, or if the statement is oral, the contents of the statement and the circumstances under which it was made, including the persons to whom it was made, are disclosed to the witness and (2) the witness is given an opportunity to explain or deny it. (b) Extrinsic evidence of prior inconsistent statement of witness. Unless the interests of justice otherwise require, extrinsic evidence of a prior inconsistent statement by a witness is not admissible under this Rule (1) until the requirements of section (a) have been met and the witness has failed to admit having made the statement and (2) unless the statement concerns a non-collateral matter.”); Thomas v. State, 213 Md. App. 388, 405 (2013) (permitting “impeachment of witness's credibility by evidence that the witness made a prior statement that is inconsistent with his [] in-court testimony”).
- 279 Gonzalez, 388 Md. at 71.
- 280 Hardison v. State, 118 Md. App. 225, 241 (1997).
- 281 See Gonzalez, 388 Md. at 70; Thomas v. State, 213 Md. App. 388, 405 (2013).
- 282 Jones v. State, 178 Md. App. 123, 135–36 (2008).
- 283 Hardison, 118 Md. App. at 240.
- 284 See MD. R. EVID. 5-613(b).
- 285 Fontaine v. State, 134 Md. App. 275, 297 (2000).
- 286 See MD. R. EVID. 5-613.
- 287 John Eligon, Speaking Black Dialect in Courtrooms Can Have Striking Consequences, N.Y. TIMES (Jan. 25, 2019), https://www.nytimes.com/2019/01/25/us/black-dialect-courtrooms.html.
- 288 Id.
- 289 Cassie Owens, Are Philly court reporters accurate with black dialect? Study: Not really., PHILA. INQUIRER (Jan. 22, 2019), https://www.inquirer.com/news/court-reporter-stenographerafrican-american-english-aave-philly-transcript-study-20190122.html (“Roughly 40 percent of the sentences the court reporters transcribed had something wrong. Sixty-seven percent of attempts at paraphrasing weren’t accurate. And 11 percent of transcriptions were called gibberish”).
- 290 Eligon, supra note 287.
- 291 Owens, supra note 289. 292 Id.
3.2.10.2 OPTIONAL: Taylor v. National Railroad Passenger Corp. 3.2.10.2 OPTIONAL: Taylor v. National Railroad Passenger Corp.
Read this case if you would like to see:
- An example of impeachment by contradiction;
- An example of a court identifying collateral evidence that should be excluded;
- An example of an appellate court finding plain error
Robert R. TAYLOR, Plaintiff-Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant-Appellee.
No. 90-1360.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 13, 1990.
Decided Dec. 27, 1990.
Rehearing Denied Jan. 15, 1991.
*1373Jeanne L. Sathre, David Herndon, Lakin & Herndon, Wood River, Ill., Judith M. Cannavo, Indianapolis, Ind., for plaintiff-appellant.
Victor L. Frost, II, Bruce A. Hugon, Frost & Hugon, Indianapolis, Ind., James W. Owens, Paducah, Ky., for defendant-ap-pellee.
Before BAUER, Chief Judge, and CUMMINGS and EASTERBROOK, Circuit Judges.
Appellant Robert R. Taylor brought suit against his employer, National Railroad Passenger Corporation (Amtrak), pursuant to the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. Taylor alleged that he sustained a back injury on November 18, 1986, caused by Amtrak’s negligence in failing to provide adequate lighting, tools and instruction to perform his assigned task. The case was tried before a jury which returned a verdict for the defendant Amtrak.
In this appeal, Taylor challenges the district court’s decision denying his motion for judgment notwithstanding the verdict (JNOV) or in the alternative a motion for new trial. Specifically, Taylor contends that he is entitled to a new trial because the district court erroneously allowed the defendant to introduce evidence of prior back complaints that were contained in his military records dated December, 1972. Taylor further complains that the district court erred by allowing the defendant to introduce his employment application on which Taylor noted that he did not have any back injuries. Taylor disputes the district court’s ruling that the military records and the employment application were relevant and properly admitted as impeachment evidence.
I. FACTS
Taylor’s injury occurred when he was attempting to remove a lockring from a metal conduit. The lockring became stuck, suggesting that the threats were damaged. Taylor and co-worker Harry R. Kinder, Jr. decided to use a prybar to remove the ring. While doing so, the prybar slipped, causing Taylor to fall forward injuring his back. Taylor’s injury was diagnosed as a herniated disk.
Taylor introduced evidence that he was instructed to attempt to salvage the parts which he was removing. He also introduced evidence that the lighting was inadequate. The testimony revealed that the employees were allowed to bring in additional light, but were often limited in doing so for fear of blowing a circuit and causing a power loss. The evidence further demonstrated that Amtrak provided tools for its employees; however, there were often shortages in the supply of these tools. Taylor also introduced expert testimony that the proper tool to use would be a spanner wrench which was unavailable to Amtrak employees. This expert further testified that of all “available” tools, Taylor used the proper one. The testimony re-*1374fleets that Taylor was never instructed on the proper way to remove a damaged lockring. Finally, Taylor testified that he did not seek the advice of his supervisor, suggesting that such a request would be futile.
Amtrak introduced testimony that Taylor used the wrong tool. Instead of trying to remove and salvage the lockring, Taylor should have chiseled or burned it off. The testimony suggested that Taylor as an experienced journeyman electrician should have known that Amtrak would not have wanted to save a damaged lockring. Amtrak admitted that it never specifically instructed its employees to use such a method, but countered that this information should have been in the province of an experienced electrician. Taylor’s supervisor, Michael J. Scaringe, testified that he would have instructed Taylor to use another method had he asked, but Taylor never asked.
Prior to trial, Taylor filed a motion in limine seeking to exclude evidence of any prior or subsequent back injuries. This motion was partially granted. However, the district court denied the motion as it related to the military medical records if relevance could be demonstrated.
During cross-examination, Amtrak asked Taylor if he had ever had any back problems prior to the accident.1 Taylor responded that he had not. The defendants then showed Taylor his military records. The records showed that on two occasions in 1972 Taylor went to the Army medical clinic complaining of back pain. The defense next asked Taylor to identify his Amtrak employment application, dated June 28, 1979, which indicated that Taylor had never experienced back problems. These records were admitted into evidence and passed to the jury.
After the jury returned a verdict in favor of Amtrak, Taylor filed a motion for JNOV or alternatively a motion for a new trial. In this motion, Taylor complained that the military records and the employment application were irrelevant, immaterial and prejudicial. The district court ruled that the military medical records and the employment application were properly admitted for the limited purpose of impeachment.2 Therefore, Taylor’s motions were denied. Taylor raises the same arguments before this court on appeal.
II. ANALYSIS
Before determining whether the district court erred in denying Taylor’s motions for JNOV or new trial, we must determine whether the district court erroneously admitted the military medical records and the employment application. On appeal Taylor argues that this evidence was irrelevant and prejudicial. He points to the fact that the back pain complained of in the military medical records occurred in December, 1972, which is 14 years earlier than the accident which is the subject of this suit. Taylor argues that the great lapse of time and the vagueness of the medical notations makes this evidence completely irrelevant to this case. The appellant next contends that the admission of this evidence was highly prejudicial because the jury was allowed to infer that Taylor had a pre-exist-ing back problem not caused by this accident. In addition, Amtrak then suggested *1375to the jury that Taylor lied on his employment application concerning his back problems based on these unreliable medical notations. Taylor argues that the evidence would still be inadmissible even if it was admitted solely for impeachment purposes. Taylor contends that Amtrak should not be allowed to admit otherwise inadmissible evidence by raising a post-trial argument that it was impeachment evidence.
Amtrak contends that the use of this information for impeachment purposes is entirely permissible. Amtrak states that it never argued that Taylor had a pre-exisit-ing back problem. Amtrak concedes that the plaintiffs injuries were caused by the accident at its place of employment. Indeed, Amtrak affirmatively acknowledges that this evidence would be inadmissible to prove a pre-existing injury. However, because this evidence was introduced as impeachment evidence, not substantive evidence, it is purportedly relevant and admissible. Finally, Amtrak argues that it was Taylor’s duty to clear up any possible confusion over this evidence by requesting a limiting instruction. Because Taylor did not do so, there can be no reversible error.
A. Admissibility of Evidence
Taylor contends that this evidence was irrelevant and immaterial; therefore, it could not be used for impeachment purposes. Our standard of review in determining whether the district court committed reversible error in either the admission or exclusion of evidence is abuse of discretion. Geitz v. Linsey, 893 F.2d 148, 151 (7th Cir.1990). Because Amtrak admits, as it must, that this evidence would be inadmissible as substantive evidence, we must determine whether Amtrak could properly use this evidence to impeach Taylor.
The rule in this circuit is that “a witness may not be impeached by contradiction as to collateral or irrelevant matters elicited on cross-examination.” Simmons, Inc. v. Pinkerton’s, Inc., 762 F.2d 591, 604 (7th Cir.1985) (citing United States v. Lambert, 463 F.2d 552, 557 (7th Cir.1972)).3 “A matter is collateral if the impeaching fact could not have been introduced into evidence for any purpose other than contradiction.” United States v. Jarrett, 705 F.2d 198 (7th Cir.1983), cert. denied, 465 U.S. 1004, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984). In Simmons, this court explained:
The [collateral evidence] rule was apparently developed in conjunction with a particular type of impeachment — impeachment by contradiction.... the collateral evidence rule limits the extent to which the witness’ testimony about non-essential matters may be contradicted by extrinsic proof.
Simmons, 762 F.2d at 604.
In their appellate brief, Amtrak succinctly explains why it believes this evidence is relevant. “In a routine example of impeachment by contradiction, Taylor’s military medical records contradicted the false statements he made when he applied for employment with Amtrak in 1979 and when asked about prior back problems during *1376cross-examination.”4 (Defendant-Appellee's Brief at 6, 7.) Amtrak freely admits that this evidence would be inadmissible for any purpose other than impeachment. In addition, Amtrak does not contend that this evidence was necessary to impeach a contradictory statement made by Taylor on direct examination. In short, it appears that this extrinsic evidence falls directly within the prohibitions of the collateral evidence rule. Taylor’s employment application and military medical records are clearly collateral matters.
This circuit has recognized that impeachment should not be used “as a mere subterfuge to get before the jury evidence not otherwise admissible.” United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984).5 In Webster, this circuit expressed the concern that juries would miss or ignore the distinction between impeachment and substantive evidence and use this otherwise inadmissible evidence substantively-against a party. Amtrak could not have introduced the military medical records as substantive evidence unless it had shown a causal connection to the present injury. Pellegrini v. Chicago Great Western Ry. Co., 319 F.2d 447 (7th Cir.1963). No causal connection was shown. However, the admission of the 14 year old medical notations and employment application could have suggested to the jury that Taylor had a pre-existing injury about which he lied. Amtrak’s post-trial characterization of this evidence as impeachment evidence appears to be an attempt to present the jury with otherwise inadmissible evidence in violation of the principles discussed in Webster. The district court abused its discretion by admitting the military medical records and employment application and by allowing Amtrak to pass these documents to the jury. Although Taylor did not raise the collateral evidence rule in this court or mention it specifically in the district court, he did object to the use of the evidence (on grounds of relevance) in both courts, and we deem the error in admitting it for impeaching purposes “plain” within the meaning of Fed.R.Evid. 103(d).
B. Limiting Instruction
Amtrak contends that Taylor could have avoided possible prejudicial error by requesting the judge to give a limiting instruction regarding the medical records pursuant to Fed.R.Evid. 105. This rule provides:
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
Id. Before Rule 105 can come into play, however, the evidence must be admissible for at least one purpose. Because we have concluded that this evidence was not admissible for either substantive or impeachment purposes, Rule 105 is inapplicable.
C. Motion for JNOY or New Trial
Having concluded that the district court erroneously admitted this evidence, we must now determine whether the district court erred in denying Taylor’s motion for JNOY or alternatively a motion for new trial. This court recently discussed the differing standards of review for both types of motions in Fleming v. County of Kane, State of Ill., 898 F.2d 553 (7th Cir.1990). In reviewing a motion for JNOV:
we must determine de novo ‘whether the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in a light most favorable to the party against whom the motion is directed.’
*1377Id. at 559 (citations omitted).
A jury could have reasonably believed that Amtrak was not negligent. There was conflicting testimony concerning Amtrak employees’ discretion in matters concerning lighting and the choice of tools. A reasonable juror could have believed that Taylor, as an experienced electrician, should have known to use a different tool and to forego salvaging the lockring. It is also reasonable for a jury to conclude that Taylor could have asked for instruction, but neglected to do so. As such, there is sufficient evidence to support the jury’s verdict.
In respect to Taylor’s motion for a new trial:
The test to be applied in determining whether a motion for a new trial should be granted is whether the verdict is against the weight of the evidence, that the damages were excessive, or that, for other reasons, the trial was not fair to the party moving.
Id.
This court will only reverse a district judge’s denial of a motion for new trial in exceptional circumstances upon a clear showing that there was an abuse of discretion. Id. Both parties to this dispute provided evidence to support their positions. It was a close case, and the credibility of the witnesses played a very important role. Although it is true that Amtrak did provide other types of impeachment evidence, the inadmissible impeachment evidence was very damaging. Not only was Amtrak allowed to introduce evidence suggesting a previous injury, this tenuous evidence was used to bootstrap an argument that Taylor lied on his employment application. The admission of this evidence was an abuse of discretion. Taylor’s case was prejudiced because the jury could have drawn several impermissible inferences from this evidence. We find this to be one of the exceptional eases where the district court’s abuse of discretion warrants a reversal.
CONCLUSION
The district court erred by allowing the defendant Amtrak to introduce evidence of fourteen year old military medical clinic records for the purpose of impeachment. The rule in this circuit is that a witness may not be impeached by extrinsic evidence concerning collateral matters elicited on cross-examination. This evidence in question clearly comes within the rule’s prohibition. As Amtrak admits, this evidence could not have been introduced for any other purpose. Because both parties provided substantial support for their positions, the credibility of the witnesses could have played a major role in the jury’s determination. The district court should not have allowed Taylor’s credibility to be tainted based on the unreliable, irrelevant and immaterial military medical records. In addition, the admission of this evidence impermissibly allowed the jury to infer that Taylor had a prior back injury. Therefore, the district court’s error was prejudicial to Taylor.
Taylor’s motion for a new trial is granted and the decision of the district court is
REVERSED AND REMANDED.
3.2.10.3. OPTIONAL: Ten Rules of Cross-Examination by Irving Younger
Irving Younger was a New York City native known for his evidence expertise, wit, and . . . energy. His 10 Commandments of Cross-Examination are famous and this is a 10 minute video of him describing these. The video quality isn't great because it's an old video, but it's still enjoyable.
Watch this video if you're interested in being a trial lawyer, or if you'd just like more information about the process of cross-examination.
3.3 Class 7 3.3 Class 7
3.3.1 Merritt & Simmons Textbook Assignment 3.3.1 Merritt & Simmons Textbook Assignment
In the Merritt & Simmons textbook, please read Chapters 19 & 20. For Chapter 19, there are no meaningful distinctions between the Third and Fourth editions. For Chapter 20, if you are using the Third Edition, please add the following:
On page 260, add this sentence to the end of the second paragraph:
Empirical research shows that this dynamic sometimes contributes to the wrongful conviction of innocent defendants.” Fn: John H. Blume, The Dilemma of a Criminal Defendant with a Prior Record - Lessons from the Wrongfully Convicted, 5 J. Empirical Legal Stud. 477 (2008).
On page 262, add these two paragraphs right before section “3: Crimes Involving a Dishonest Act or False Statement:”
Rule 609 has come under heavy criticism from scholars, many of whom reject its underlying premise that the fact of a prior conviction provides the jury with useful evidence about the witness. The critics also argue that some jurors misunderstand the judge’s limiting instruction and use the prior convictions—at least unconsciously—as evidence that the defendant has a criminal disposition. The critics, finally, point out that admitting prior convictions disproportionately affects nonwhite and low-income defendants. Racial profiling, heightened neighborhood surveillance, and implicit bias subject those defendants to more criminal prosecutions than other citizens. Low-income defendants who cannot pay bail are often pressured into pleading guilty rather than contest the charges against them. Once these defendants have a prior conviction from these pleas, Rule 609 makes future convictions easier to obtain—perpetuating a cycle of disadvantage.12
For these and other reasons, an increasing number of scholars have urged courts and legislatures to restrict the use of prior convictions to impeach criminal defendants. The rule, however, remains firmly embedded in current practice.
Fn 12: See, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010); Anna Roberts, Impeachment by Unreliable Conviction, 55 BC L Rev. 563 (2014).
On pages 262-263, replace the content of “3: Crimes Involving a Dishonest Act or False Statement” with the following:
3. Crimes Involving a Dishonest Act or False Statement. Rule 609(a)(2) admits prior convictions for crimes of dishonesty or false statement, even if they were misdemeanors and without any consideration of undue prejudice. Students (and some courts) sometimes have trouble with this provision: after all, many crimes include some element of deceit. Is burglary a crime that involves a dishonest act? What about murdering a victim by offering her a “refreshing glass of beer” that is laced with cyanide? All law breaking, for that matter, is dishonest in the broadest sense of that word. Which crimes involve the narrower type of dishonesty required by Rule 609(a)(2)?
Rule 609(a)(2) answers this question with a strict test: a prior conviction is admissible under this subsection only if “the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement.” This test focuses on the elements of the prior crime. If the statutory language requires proof of a dishonest act or false statement, then the crime qualifies as one of “dishonesty.” A relatively small number of crimes (such as perjury, fraud, and embezzlement) meet this requirement.
The rule expands its reach slightly to include prior convictions in which the judge can “readily determine” that the prosecution used a dishonest act or false statement to satisfy a more general element. That information may come from the indictment, a statement of admitted facts, or a companion crime; the judge will not delve into the history of the prior conviction to determine whether it included some dishonest act.
Example: The government charged Kevin Rankin with illegal possession of a handgun. The prosecutor filed a motion in limine, seeking permission to impeach Rankin, if he took the stand, with his prior convictions for making a false statement to a federal agency and endeavoring to obstruct justice.
Analysis: The district judge granted the prosecutor’s motion, finding that both convictions were for crimes of dishonesty or false statement. Making a false statement to a federal agency is a crime that, on its face, requires proof of a defendant’s false statement. And although defendants may obstruct justice through both deceitful and nondeceitful means, it was clear from the companion charge that Rankin’s conviction was for making false statements in an affidavit submitted under oath to a judge. Under these circumstances, the275court could “readily determine” that a dishonest act or false statement was an element of Rankin’s obstruction of justice. 13
Courts have adhered to Rule 609’s strict definition of crimes involving dishonesty. Ordinary theft does not qualify; neither does poisoning. When in doubt, check precedent for a particular crime.
Fn 13: United States v. Rankin, Criminal No. 05–615, 2007 WL 1181022 (E.D. Pa. Apr. 18, 2007).
3.3.2 Rule 404(a) 3.3.2 Rule 404(a)
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
Excerpt from Advisory Committee Notes:
“Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened.”
3.3.3 Rule 608(b)(1) 3.3.3 Rule 608(b)(1)
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.
Excerpt from Advisory Committee Notes:
In conformity with Rule 405, which forecloses use of evidence of specific incidents as proof in chief of character unless character is an issue in the case, the present rule generally bars evidence of specific instances of conduct of a witness for the purpose of attacking or supporting his credibility.
There are, however, two exceptions: (1) specific instances are provable when they have been the subject of criminal conviction, and (2) specific instances may be inquired into on cross-examination of the principal witness or of a witness giving an opinion of his character for truthfulness.
(1) Conviction of crime as a technique of impeachment is treated in detail in Rule 609, and here is merely recognized as an exception to the general rule excluding evidence of specific incidents for impeachment purposes.
(2) Particular instances of conduct, though not the subject of criminal conviction, may be inquired into on cross-examination of the principal witness himself or of a witness who testifies concerning his character for truthfulness. Effective cross-examination demands that some allowance be made for going into matters of this kind, but the possibilities of abuse are substantial. Consequently safeguards are erected in the form of specific requirements that the instances inquired into be probative of truthfulness or its opposite and not remote in time. Also, the overriding protection of Rule 403 requires that probative value not be outweighed by danger of unfair prejudice, confusion of issues, or misleading the jury, and that of Rule 611 bars harassment and undue embarrassment.
3.3.4 Excerpt from United States v. Crowley, 318 F.3d 401 (2d Cir. 2003) 3.3.4 Excerpt from United States v. Crowley, 318 F.3d 401 (2d Cir. 2003)
This is the Merchant Marine Academy case mentioned in your text. This short excerpt highlights the “no extrinsic evidence” rule for specific bad acts and touches on the court’s power to control the proceedings under 611, 403, and the deferential standard of review.
. . .
The criminal charges against Crowley . . . arose from an incident at the Kings Point Merchant Marine Academy in the early morning hours of September 28, 1997. It is undisputed that on that night, Crowley and [co-defendant], students at the Academy, entered the room of a fellow midshipman, Stephanie Vincent, and tried to persuade her to engage in sexual acts with them. While the details of what occurred were sharply disputed at trial, [the evidence] would have permitted the jury to find the following facts. . . . [sexual assault of Vincent].
. . .
A. Alleged False Accusations
Vincent's credibility was obviously a critical issue at trial, and the defense duly attacked it, not only by cross-examination but also by offering testimony from Shannon Pender, who had attended the Academy at the same time as Vincent. Pender testified . . . that Vincent had made various other “accusations” against fellow-midshipmen that had been “proven” false. …
The defense had attempted to cross-examine Vincent with respect to the claim that she had made such false accusations, but the trial court did not permit questioning before the jury on this subject. Rather, the court permitted defense counsel to conduct a voir dire examination of Vincent *417 outside the jury's presence. During that examination, defense counsel were allowed to direct Vincent's attention to certain named students or certain particular incidents, and to ask Vincent whether she had ever “lie[d] about what happened” in those instances or “falsely accuse[d]” the students involved. Tr. at 159-68. In each case, Vincent denied lying or making false accusations. Counsel were generally not permitted, however, to ask questions that explored in any detail what Vincent had told the authorities in these cases or what the results of any official inquiry had been. After hearing this testimony, Judge Mishler declined to permit cross-examination on this subject before the jury. Crowley attacks this decision as “clearly wrong,” Appellant's Br. at 49, and argues that the restriction on cross-examination denied him his right to confront his accuser, guaranteed by the Sixth Amendment.
Fed.R.Evid. 608(b) prohibits a party from presenting “extrinsic evidence” of “[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility,” unless that conduct was the subject of a criminal conviction. The rule, however, permits the witness to be examined about such specific conduct, “in the discretion of the court, if probative of truthfulness or untruthfulness.” Fed.R.Evid. 608(b). Similarly, Fed.R.Evid. 404(b) allows the admission of testimony regarding prior bad acts of a witness, so long as such evidence is not offered “in order to show action in conformity therewith.” FN7
FN7. Crowley argued to the District Court that evidence that Vincent had previously made allegations against midshipmen should be admitted to show motive, on the theory that Vincent may have attempted to frame the defendants in retaliation for the Academy's failure to pursue her prior allegations.
As this Court has repeatedly emphasized, however, “ ‘[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.’ Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Only when this broad discretion is abused will we reverse a trial court's decision to restrict cross-examination. United States v. Maldonado-Rivera, 922 F.2d 934, 956 (2d Cir.1990).” United States v. Rahman, 189 F.3d 88, 132 (2d Cir.1999); see also United States v. Flaharty, 295 F.3d 182, 190-91 (2d Cir.2002); United States v. Griffith, 284 F.3d 338, 351-52 (2d Cir.2002). “Further, under Rule 403, the district court may exclude even relevant evidence if it finds that the ‘probative value [of the testimony] is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ Fed.R.Evid. 403.” Flaharty, 295 F.3d at 191.
Unlike the questions about prior violent crimes, which this Court held were properly precluded in Flaharty, id., the questions defendants proposed to ask, which related to alleged instances of false accusation, were certainly relevant to the witness's credibility. And defense counsel represented, and later demonstrated via Pender's testimony, that they had a good faith basis for their proposed questioning. Nevertheless, although we might have taken a different course in the position of the trial judge, we cannot hold that Judge Mishler abused his discretion in proceeding as he did. The voir dire examination established that Vincent would deny making false accusations*418 or lying in connection with Academy investigations of other students. Since the defense would be precluded by Rule 608(b) from attempting to refute Vincent's testimony by offering extrinsic evidence concerning the incidents in question, the only evidence before the jury on the subject would have been Vincent's denial of falsehood. See United States v. Perrone, 936 F.2d 1403, 1412 (2d Cir.1991); see also 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 608.22[1], at 608-46 to 608-48 (2d ed.2002).
Allowing cross-examination before the jury would thus have produced little of probative value. Certainly, the trial court was well within its discretion in not allowing any broader inquiry into the nature of what Vincent had told the authorities and what the results of their investigations (to the extent Vincent even knew of them) had been. Such broad-ranging inquiry would at best have produced confusing and distracting sideshows regarding the facts of controversies completely unrelated to the charges against Crowley at trial, and was properly precluded. It was thus also within the trial judge's broad discretion in regulating cross-examination to conclude that since the most that would be permitted was questioning about whether Vincent had lied, to which the defendants would get negative answers, the prejudicial impact of engendering speculation about the subject outweighed the minimal probative value of permitting the jury to evaluate Vincent's demeanor during the question and answer.
We are further bolstered in this view by the fact that Judge Mishler, like Judge Seybert and the state court judge before him, had conducted an in camera review of Vincent's Academy file, and found no evidence of any conclusion by Academy officials that Vincent had made false accusations. Govt. Br. at GA-3. . . .The records thus support the independent conclusion[] . . . that permitting the defense to suggest that Vincent had lied to Academy officials would be more prejudicial than probative.
3.3.5 Rule 609 3.3.5 Rule 609
Primary tabs
(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.
Notes
3.3.6 Excerpt from Government’s Motion in Limine in Rankin 3.3.6 Excerpt from Government’s Motion in Limine in Rankin
United States v. Rankin is the case referenced in your text as an example of how a court evaluates probative value and the risk of unfair prejudice under Rule 609(b). In order to provide a fuller picture of the opposing arguments in this context (and to provide samples of the kind of writing lawyers – not judges – do), I have included three documents. The first is these is below: An excerpt from the government’s motion in limine, arguing that Rankin’s perjury conviction should be admitted under Rule 609(b).
. . .
B. Government's Motion in Limine to Admit Evidence of Defendant's Prior Perjury Conviction Pursuant to Federal Rule 609(b)
The government has provided Rankin's prior criminal record to defense counsel in discovery. That record shows that the defendant has two prior convictions. The defendant has a 1986 federal felony conviction for conspiracy to distribute narcotics, for which he received a ten year sentence, and a 1990 conviction for perjury and obstruction.
The government respectfully moves in limine, pursuant to Rule 609(b), for a ruling allowing it to impeach the defendant with the prior perjury conviction more than 10 years old, should he testify at trial. Similarly, if Rankin presents character witnesses, the government will seek to impeach those witnesses with Rankin's perjury conviction, to test the standard by which they measure his reputation and character.
Rule 609(a)(2) provides that “evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it can readily be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement.” (emphasis added).[FN1] Those convictions for which a witness was released from custody more than 10 years before trial are admissible, however, only if the Court finds that “the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” Rule 609(b).[FN2] “[P]ermissible questioning typically is limited to the number of convictions, and the nature, time, and date of each. “ United States v. Faulk, 53 Fed.Appx. 644, 2002 WL 31667657 (3d Cir. 2002) (not precedential), citing McCormick on Evidence, § 42 at 167 (5th ed., 1999). The trial court may reserve making its final ruling on this issue until after the defendant testifies. See Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); Luce v. United States, 469 U.S. 38, 41- 42 (1984).
FN1. Clearly, Rankin's perjury conviction required proof beyond a reasonable doubt of his making a “false statement.” See Advisory Committee Notes (2006).
FN2. When a “statute of limitations” was proposed to ban the admission of any conviction more than 10 years old, Judge Henry Y. Friendly testified that “...any statute of limitations for perjury is too short.” Hearings on Proposed Rules of Evidence Before the Special Subcommittee on Reform of Federal Criminal Laws of the Committee or the Judiciary, 93d Cong., 1st Sess. 251-52 (1973). Consistently with Judge Friendly's views expressed in other parts of their testimony, Rule 609(b) has always provided for judicial discretion in dealing with admissibility of prior convictions more than 10 years old.
In this case, use of Rankin's 1990 perjury conviction is warranted. Where a particular witness's credibility (especially a defendant, who chooses to testify) is critical to the outcome of the case, the probative value of the conviction to a jury obliged to assess that credibility substantially outweighs any potential prejudicial effect at trial. United States v. Payton, 159 F.3d 49, 58 (2d Cir. 1998) (admitting defense witness's 13 year old conviction for making sworn false statements to the government); United States v. Pritchard, 973 F.2d 905, 908 (11th Cir. 1992)(admitting defendant's 13 year old conviction for bank robbery); United States v. Brown, 956 F.2d 782, 787 (8th Cir. 1992)(admitting defendant's 12 year old conviction for burglary); United States v. Jefferson, 925 F.2d 1242, 1256 (10th Cir. 1991)(admitting defendant's 10/2 year old robbery conviction); United States v. Murray, 751 F.2d 1528 (9th Cir. 1985) (admitting defendant's 18 year old conviction for receiving stolen property); United States v. Gilbert, 668 F.2d 94, 97 (2d Cir. 1981)(admitting defendant's conviction for mail fraud under Rule 609(b)); United States v. Spero, 625 F.2d 779, 780-81 (8th Cir. 1980)(admitting defendant's 22 year old conviction for grand theft). Admission of a prior conviction under Rule 609(b) is especially warranted, if the proffered prior conviction involves dishonesty that is probative of the defendant's credibility, ( Payton at 57; Murray at 1533; Jefferson at 1256; Gilbert at 97), and the proffered prior conviction is not cumulative of other impeachment evidence because the defendant has no other convictions (Pritchard at 909).[FN3] Should the defendant take the stand, the government would seek to impeach the defendant's credibility with the fact of his 1990 perjury conviction and the nature of the crime. See United States v. Jacobs, 44 F.3d 1219, 1224 n.6 (3d Cir. 1995) (“[c]ase law firmly establishes that it is proper to admit evidence of the type of felony involved in a prior conviction used for impeachment under Fed.R.Evid. 609(a)(1)”).
FN3. Rankin has convictions, including the conviction for obstruction, which in our abundance of caution the government does not intend to use to impeach him.
In determining whether the probative value of a prior conviction outweighs its prejudicial effect, the Third Circuit has held that the following factors should be considered: (1) the nature of the crime; (2) when the conviction occurred; (3) the importance of the defendant's testimony; and (4) the degree to which the defendant's credibility is central to the case. See Gov't of Virgin Islands v. Bedford 671 F.2d 758, 761 n.4 (3d Cir. 1982). Here, these factors weigh in favor of allowing the government to impeach the defendant with his prior conviction.
First with regard to the kind of crime charged, it is clear from the conviction for perjury that Rankin's conduct involved dishonesty and false statements. Perjury is the prime example of crimina falsi offenses. See Rule 609, Advisory Committee Note (2006 Amendments). As such, Rankin's prior conviction is highly probative of his veracity.
Second, with regard to when the conviction occurred, in this case, Rankin was convicted of perjury and obstruction on October 1, 1990 and was sentenced to three years probation. Although it has been 13 ½ years since Rankin completed his sentence, the perjury conviction is not so remote in time as to have lost its highly probative value, much less to create unfair prejudice to Rankin.
Finally, as to the importance of the credibility of the defendant, in the upcoming trial, a critical issue will be the credibility of the defendant should he choose to testify. When a defendant testifies, he places his credibility “directly at issue,” see United States v. Beros, 833 F.2d 455, 463-64 (3d Cir. 1987), and his prior conviction then bears on his credibility. See United States v. Alexander, 48 F.3d 1477, 1489 (9th Cir. 1995). “Where [a] defendant's testimony directly contradicts other witness's credibility on essential issue, prior criminal convictions are admissible for impeachment purposes”. United States v. Smith, 131 F.3d 685 (7th Cir. 1997).
. . .
Under these circumstances, it is not fair to allow Rankin, if he chooses to testify, to hide from the jury the prior convictions which cast doubt on his version of the facts. See United States v. Oakes, 565 F.2d, 170 at 173 (1st Cir. 1977) (impeachment appropriate where there was a “sharp, irreconcilable conflict” between the testimony of the government's witnesses and that of the defendant, so that credibility was crucial. As the Ninth Circuit recognized in United v. Browne, 829 F.2d 760 at 762, the government should not be forced to “sit silently by, looking at a criminal record which, if made known, would give the jury a more comprehensive view of the trustworthiness of the defendant as a witness.” The jury is entitled to know this conviction in assessing Rankin's credibility, should he choose to testify.
In this case, the government, by letter of January 4, 2006, provided written notice to the defense that it would seek to impeach Rankin with his perjury and obstruction convictions. The government expects that this case will turn on Rankin's credibility, which it and the jury will be denied fair opportunity to test should Rankin's perjury conviction be excluded. The probative value of Rankin's perjury and conviction substantially outweighs any prejudicial effect. Any improper consideration of the perjury conviction can be prevented with an instruction by the Court that the jury should consider the prior conviction only to assess Rankin's credibility and for no other purpose.
V. CONCLUSION
Accordingly, for the foregoing reasons, the government respectfully requests that the Court grants the government's motion in limine to admit 404(b) evidence and the admission of the defendant's perjury conviction, if the defendant chooses to testify, pursuant to Federal Rule of Evidence 609(b).
3.3.7 Excerpt from the Defense's Opposition to the Government Motion in Rankin 3.3.7 Excerpt from the Defense's Opposition to the Government Motion in Rankin
United States v. Rankin is the case referenced in your text as an example of how a court evaluates probative value and the risk of unfair prejudice under Rule 609(b). In order to provide a fuller picture of the opposing arguments in this context (and to provide samples of the kind of writing lawyers – not judges – do), I have included three documents. The second of is these is below: An excerpt from the defense’s motion in limine, arguing that Rankin’s perjury conviction should not be admitted under Rule 609(b).
. . .
B. The Prior Conviction Is Inadmissible
The circumstances which led to Mr. Rankin's convictions for making false statements to a federal agency in violation of 18 U.S.C. § 1001 and endeavoring to obstruct justice in violation of 18 U.S.C. § 1503 are the subject of a reported opinion. United States v. Rankin, 1 F.Supp.2d 445 (E.D.Pa. 1998). As noted there, in August of 1984 Mr. Rankin was convicted following a case that was tried before the Honorable John Hannum of narcotics offenses and sentenced to serve a term of 54-years imprisonment. Id. at 448. After his conviction was reversed by the Court of Appeals, Mr. Rankin filed a motion under 28 U.S.C. §§ 144 and 455(a) in which he sought the recusal of Judge Hannum from the second trial. That motion was granted and Mr. Rankin was eventually convicted of using a telephone to facilitate the commission of a narcotics offense in violation of 18 U.S.C. § 843(b). The sentence imposed for this offense by the Honorable Edward Cahn was 10-years imprisonment (which was later reduced to time served).
In April of 1988, Mr. Rankin was indicted for making false statements in the affidavit that he filed in support of the motion to recuse Judge Hannum. The case was tried before the Honorable Alfred Wolin and Mr. Rankin was convicted in 1989 of the § 1001 and § 1503 charges. Id. At a sentencing hearing that was held sometime in 1989, Judge Wolin sentenced Mr. Rankin to probation for a period of three years to be served concurrently with a 1 0-year probationary term that he received for the narcotics offense. Id. Mr. Rankin completed these probationary terms without incident.
The standards which govern the admissibility for impeachment purposes of convictions which are more than 10-years-old are prescribed by rule. Under Fed.R.Evid. 609(b).
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
In the Advisory Committee Notes to the 1974 enactment of Rule 609(b), the following observations are made:
Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness. Rather than exclude all convictions over 10 years old, the committee adopted an amendment in the form of the final clause to the section granting the court discretion to admit convictions over 10 years old, but only upon a determination by the court that the probative value of the conviction supported by specific facts and circumstances, substantially outweighs its prejudicial effect.
It is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances. The rules provide that the decision be supported by specific facts and circumstances thus requiring the court to make specific findings on the record as to the particular facts and circumstances that it has considered in determining that the probative value of the conviction substantially outweighs its prejudicial effect.
Id. (emphasis supplied).
In the initial version of Rule 609(b), the period of time from which the conviction would be is measured included the expiration of terms of probation and parole. United States v. Daniel, 957 F.2d 162, 168 (5th Cir. 1992) (“The historical note to Rule 609 shows that, prior to 1972, the rule contemplated that the ten-year period should run from ‘the expiration of his parole, probation, or sentence’ ”). As noted in Daniel, however, “[t]his section was amended in 1972 ... and now states that a conviction is not admissible if more than ten years have elapsed since ‘release from confinement.’ ” Id. Based upon the deletion of that portion of the provision which stated that the 10-year period began to run at the expiration of probation and parole, the courts have held that the relevant time period runs from the date that the defendant is sentenced to a term of probation or released on parole. Id.; see also Bizmark, Inc. v. Kroger Company, 994 F.Supp. 726, 728 (W.D.Va. 1998). The only case to hold otherwise is Trindle v. Sonat Marine, Inc., 697 F.Supp. 879 (E.D.Pa. 1988) which relied upon the proposed version of the rule which was not adopted by the drafters of Rule 609(b). Daniel, 957 F.2d at 168 n.3 (“The Rule 609(b) amendments actually adopted, however, differed substantially from the proposal ... [which] would have retained earlier language which started the ten-year clock running from the date of expiration of probation or parole”); Bizmark, 994 F.Supp. at 728 (“[T]he 1972 amendments to Rule 609(b) actually adopted deleted the provision [running the period from release on probation and parole] ands simply provided that a conviction was not admissible if more than ten years had elapsed since the witness' release from ‘confinement.’ ”).
Based upon Daniel and Bizmark, the defense submits that, contrary to the position taken by the government in its memorandum, more than 13 and one-half years have elapsed since Mr. Rankin was convicted of the false statement and obstruction offenses. Mr. Rankin was never “confined” within the meaning of Rule 609(b) for those offenses and he was instead placed on probation for a period of three years by Judge Wolin in 1989. Since the trial of this case will take place in 2007, a period of roughly 18 years has elapsed since Mr. Rankin was convicted of the prior offenses. Bizmark, 994 F.Supp. at 727 (“[I]t is clear that the elapsed time is measured to the point at which the witness actually testifies”).
Under these circumstances, Mr. Rankin's prior convictions are simply too remote to permit their use for impeachment purposes. As Judge Katz noted in United States v. D'Agata, 646 F.Supp. 390, 393 (E.D.Pa. 1986, aff'd, 826 F.2d 1057 (3d Cir. 1987), “[o]f the three reported cases in this District, two twelve-year-old convictions were excluded and only a conviction little more than ten years was admitted.”[FN2] Judge Katz reached this conclusion even though he found that the prejudicial effect of admitting the prior perjury conviction was “arguably” low because in his view, permitting impeachment would deprive the defendant of “a fair opportunity to defend himself by testifying, if he wishes to do so.” Id. Obviously, the same considerations apply here. Mr. Rankin deserves a “fair opportunity” to defend himself on the gun charges and his ability to do so would be severely hampered if the government were permitted to parade before the jury the fact that he was convicted of making false statements in an affidavit that was submitted to a court. The government, moreover, will not be unfairly prevented from presenting its case because it will be able to cross-examine Mr. Rankin and his fact witnesses on the locations in which the guns were found and thereby test their credibility on the only issues which will be the subject of the trial two trials, i.e., whether he was aware of the fact that the firearms were present in the safe and desk drawer and intended to exercise dominion and control over those items. To unnecessarily cloud these issues with what amounts to an ancient conviction for making false statements in a recusal motion would be unfairly prejudicial. Accordingly, the Court should deny the government's motion and afford Mr. Rankin the opportunity to fairly defend himself at trial.
FN2. The three cases to which Judge Katz referred are United States v. Forte, criminal no. 85-141, slip op. (E.D.Pa. July 15, 1985) (12 year-old conviction for a firearms conviction inadmissible); United States v. Chavez, criminal no. 83-344, slip op. (E.D.Pa. June 14, 1985) (12 year-old conviction for uttering bad checks inadmissible); United States v. Serot, 648 F.Supp. 494 (E.D.Pa. 1985) (10-year and seven-month old conviction for submitting false statements to Federal Housing Administration admissible).
IV. CONCLUSION
For any or all of the foregoing reasons, defendant Kevin Rankin requests the Court to deny the government's motion in limine.
3.3.8 Excerpt from United States v. Rankin, 2007 WL 1181022 (E.D.Pa. 2007) 3.3.8 Excerpt from United States v. Rankin, 2007 WL 1181022 (E.D.Pa. 2007)
United States v. Rankin is the case referenced in your text as an example of how a court evaluates probative value and the risk of unfair prejudice under Rule 609(b). In order to provide a fuller picture of the case, I have included three documents. The third of is these is below: An excerpt from the judge’s decision to admit the conviction.
. . .
2. Evidence of Rankin's Prior Convictions
The Government also seeks to introduce evidence of Rankin's 1989 convictions for violations of 18 U.S.C. § 1001 (making a false statement to a federal agency) and 18 U.S.C. § 1503 (endeavoring to obstruct justice). The Government seeks to use these convictions to impeach Rankin's credibility as a witness. Under Fed.R.Evid. 609(a)(2), “evidence that any witness has been convicted of a crime shall be admitted ... if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.” Because these convictions stem from acts of dishonesty, the convictions are admissible, regardless of the punishment that was imposed.
The Rules of Evidence do, however, impose a qualified time limit for such convictions. Under Fed.R.Evid. 609(b), such crimen falsi convictions that are more than 10 years old are admissible only if “the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.”
Applying this balancing test, the Court concludes that the convictions are admissible to impeach Rankin's credibility. Despite their age, the probative value of the convictions is exceedingly high. Rankin was convicted for making false statements in an affidavit seeking the recusal of a federal judge from presiding over his trial for narcotics violations,FN11 an act that could not be more relevant to the issue of Rankin's credibility.
FN11. According to the Court of Appeals,
Prior to the commencement of the second trial, Rankin filed a motion pursuant to 28 U.S.C. §§ 144 & 455(a) requesting that Judge Hannum be recused from presiding over the second trial. In support of this motion, Rankin and appellees John Rankin, and Maureen Farrell, Kevin Rankin's brother and sister respectively, filed affidavits. These affidavits stated, inter alia, that during the first trial Judge Hannum chased Kevin Rankin around parts of the courtroom, as well as poked, shoved, and struck him, and interrupted, belittled, and humiliated defense witnesses.
United States v. Rankin, 870 F.2d 109, 110 (3d Cir.1989).
Moreover, the Court takes judicial notice of the fact that Rankin was a licensed attorney at the time that he made his false statements in the affidavit.FN12 Such facts heighten the probative value of the convictions-it demonstrates not only that Rankin was willing to make false statements under oath, but that he was willing to do so as an officer of the court. His willingness to abuse the justice system for personal gain, to violate the criminal law through lying, and to breach his ethical obligations as an attorney, is highly probative of his character for truthfulness today, notwithstanding the lapse of time.
FN12. See United States v. Rankin, 1 F.Supp.2d 445, 452 (E.D.Pa.1998) (noting that Rankin claimed that his convictions under 18 U.S.C. §§ 1001 and 1503 led to his disbarment on August 11, 1994).
Rankin relies heavily on United States v. D'AgataFN13 as persuasive authority for the Court to follow in this case. In D'Agata, the government sought to impeach the defendant with a 16-year-old perjury conviction. The court, admitting that it was a “close and difficult decision,” FN14 ultimately concluded that the defendant would be denied “a fair opportunity to defend himself by testifying” FN15 if the perjury conviction were admitted. In D'Agata, however, the Government was prepared to offer testimony of a witness who claimed that he and the defendant had discussed committing the charged crime. Here, on the other hand, the Government has no such direct evidence to contradict Rankin's expected defense that he did not know that the guns were in the safe. Accordingly, Rankin's credibility is likely to be the pivotal issue for the jury to decide, thus heightening the probative value of his past conduct.FN16
FN13. 646 F.Supp. 390 (E.D.Pa.1986).
FN14. Id. at 392.
FN15. Id. at 393.
FN16. See Gov't of V.I. v. Bedford, 671 F.2d 758, 761 n. 4 (3d Cir.1982) (listing “the importance of the credibility of the defendant” as a key factor in weighing probative value of convictions against their prejudicial effect under Rule 609).
*4 Moreover, because the nature of the false-statement crimes is so different from the instant charges under § 922(g)(1), there is no danger that the jury might infer that Rankin has the propensity to commit the crime of being a felon in possession of a firearm. Clearly, Rankin will not be precluded from asking the jury to place minimal weight on the 18-year-old convictions. Thus, because the Court finds that the probative value of the convictions substantially outweighs their potential prejudicial impact, the Court concludes that they are admissible under Rule 609(b).
CONCLUSION
For all the foregoing reasons, the Court will . . . grant the government's motion [in limine] with respect to Rankin's prior convictions. An appropriate Order follows.
3.3.9 United States v. Hernandez 3.3.9 United States v. Hernandez
This case excerpt illustrates the factors that courts consider when determining the admissibility of a conviction under Rule 609(a)(1).
UNITED STATES of America, Plaintiff-Appellee, v. Salvador A. HERNANDEZ, Defendant-Appellant.
No. 96-1501.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 13, 1996.
Decided Feb. 3, 1997.
Michelle A Leslie, argued, Office of the United States, Attorney, Milwaukee, WI, for Plaintiff-Appellee.
Elizabeth Cavendish-Sosinski, argued, Madison, WI, for Defendant-Appellant.
Before RIPPLE, DIANE P. WOOD and EVANS, Circuit Judges.
Salvador Hernandez was convicted by a jury of conspiracy to kidnap in violation of 18 U.S.C. § 1201(c) and of kidnaping in violation of 18 U.S.C. § 1201(a). The district court denied a motion for judgment of acquittal and later sentenced Mr. Hernandez to 200 months’ imprisonment on each count; the sentences on each count are to run concurrently. The court also imposed 5 years of supervised release following imprisonment as well as a $2,500 fine and ancillary monetary penalties. Mr. Hernandez then filed a timely notice of appeal. Before this court, Mr. Hernandez raises three issues. Two of these contentions relate to the findings of guilt; the last relates to the sentence. Following our customary practice, we shall deal first with those matters that relate to the findings of guilt and then consider the sentencing issue.
1.
Mr. Hernandez first claims that there was insufficient evidence presented to the jury that the victim of the kidnaping was transported unwillingly in interstate commerce. When reviewing a sufficiency of the evidence claim, we view the evidence and make all the inferences in the light most favorable to the government. We shall reverse only if there is no evidence from which the jury could find guilt beyond a reasonable doubt. United States v. Wilson, 31 F.3d 510, 513-14 (7th Cir.1994).
Although the circuits have articulated the essential elements of the offense of kidnaping in a variety of formulations,1 there is no dispute among the parties, nor could there be, that, to sustain a conviction for kidnaping in violation of 18 U.S.C. § 1201(a)(1), the government has the burden of establishing that the victim was transported in interstate commerce against his will. See Chatwin v. United States, 326 U.S. 455, 464, 66 S.Ct. 233, 237, 90 L.Ed. 198 (1946) (reviewing the Federal Kidnaping Act and noting that “the involuntariness of seizure and detention ... is the very essence of the crime of kidnap-ing”).
Mr. Hernandez submits that the government did not establish that the victim was transported in interstate commerce against his will. Mr. Hernandez contends that the testimony of the victim, Salvador Villanueva, was the only evidence presented regarding the victim’s unwilling transport from Wisconsin to Illinois. Mr. Hernandez asserts that Villanueva’s story about the events leading to his arrival in Illinois from Wisconsin was so implausible that no reasonable person could have found him guilty beyond a reasonable doubt.
The issue of the insufficiency of the evidence was extensively and carefully examined by the district court in its disposition of the motion for judgment of acquittal. Although not all the evidence on the issue of consent supported the position of the government, the district court determined correctly that the record contained ample evidence to support the jury’s verdict.
The victim, Villanueva, testified that he had been lured by Mr. Hernandez out of a Milwaukee restaurant into a parking lot on the ruse that he was to participate in a cocaine transaction. As Villanueva stood near the car, two armed men approached and forced Villanueva into the car. Mi-. Hernandez then drove the group across the state line into Chicago. During the trip, the armed men held Villanueva at gun point. He was taken into an apartment, beaten, chained *739to a wall and told he must pay his captors $33,000 for his release.
Mr. Hernandez challenges the sufficiency of Villanueva’s testimony on the ground that it is inherently incredible. He points out that Villanueva did not seize arguable opportunities to escape. Mr. Hernandez was arrested when he met Villanueva’s wife at a rest stop on a tollway to collect the ransom money. At that time, Mr. Hernandez, who was accompanied by Villanueva, was unarmed and did not have the restraints in his ear that Villanueva testified were used to transport him against his will. However, the district court specifically made the finding that, although Villanueva was not the strongest witness, his testimony was not so unreasonable as to be inherently incredible.
We believe that the district court was on solid ground in making its credibility determination. This case hardly presents the sort of situation that confronted our colleagues in the Eleventh Circuit in United States v. Chancey, 715 F.2d 543 (11th Cir.1983). In that case, the court characterized the victim’s testimony regarding the nonconsensual nature of the interstate transportation as inherently incredible. The extraordinary facts of that case are hardly duplicated here. As the district court noted, the circumstances surrounding the abduction corroborated Villa-nueva’s testimony that he was kidnaped against his will and driven to Chicago. Villa-nueva’s car was found abandoned in front of the restaurant with his wallet and cellular phone in the car. His wife testified that she paged her husband repeatedly during the late afternoon and early evening of the day of the kidnaping; contrary to his practice of returning her page quickly, he never responded. The district court also noted that there was testimony that Villanueva had missed important family obligations during the period of the alleged kidnaping. The court relied as well on the fact that photographs taken of Villanueva after the FBI intervened documented graphically his severe injuries and corroborated that Villa-nueva had been beaten.
We conclude that there is no merit to Mr. Hernandez’ attack on the legal sufficiency of the evidence supporting conviction. The government presented sufficient evidence from which the jury could have concluded that Mr. Hernandez kidnaped Villanueva without his consent and transported him across state lines.
2.
Mr. Hernandez also submits that the district court erred in admitting the evidence of a prior conviction for the possession of cocaine and marijuana. Mr. Hernandez contends that he was unduly prejudiced by the admission of this conviction. He points out that the earlier offense was committed when he was in his late 30s and that, although that offense was his first conviction, the jury may have concluded that his troubles with the law began at an earlier date. He also suggests that evidence of the conviction was unduly prejudicial because the offense was committed during his mature years and a jury might well assess more severely criminal behavior that cannot be excused on the ground of immaturity. Finally, he points out that the prior conviction was for possession of cocaine and marijuana and that the current charges also were related to drugs because the ransom money was meant to pay back a drug deal. The admission of the similar prior conviction would suggest, he submits, his bad character or a willingness to commit this drug-related kidnaping. Mr. Hernandez also notes as well that no cautionary instruction was offered at the time that the testimony of his prior conviction was given.
In pertinent part, Federal Rule of Evidence 609(a)(1) provides that, for purposes of attacking a defendant’s credibility, evidence that an accused has been convicted of a felony “shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.” In United States v. Mahone, 537 F.2d 922 (7th Cir.), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), this circuit articulated a five-part test to guide the district court in the exercise of its discretion in determining whether the probative value of the conviction outweighs its prejudicial effect: (1) the impeachment value of the prior crime; (2) the point in time of the conviction and the witness’ subsequent *740history; (3) the similarity between the past crime and the charged crime; (4) the importance of the' defendant’s testimony; and (5) the centrality of the credibility issue. Id. at 929. We recently repeated these factors in United States v. Nururdin, 8 F.3d 1187, 1191-92 (7th Cir.1993), cert. denied, 510 U.S. 1206, 114 S.Ct. 1328, 127 L.Ed.2d 676 (1994). We emphasize, however, that these factors remain a guide to the discretion of the district court; we shall intervene only when the record establishes that the district court abused its discretion in deciding to admit the evidence. See Geitz v. Lindsey, 893 F.2d 148, 150 (7th Cir.1990) (noting that we review the district court’s determination to admit such impeaching evidence under an abuse of discretion standard).
In this case, we discern no abuse of discretion. At the outset, we note that the prior conviction occurred five years earlier and therefore was well within the time period of Rule 609. The district court ultimately determined that the evidence ought to be admitted because of its value in assessing the credibility of the defendant. The court was well aware that there was a similarity between the two crimes, a factor that requires caution on the part of the district court to avoid the possibility of the jury’s inferring guilt on a ground not permissible under Rule 404(b).' Nevertheless, the court acted within its discretion when it determined that, given the importance of the credibility issue in this case, evidence of the earlier conviction ought to be admitted. See United States v. Causey, 9 F.3d 1341, 1344-45 (7th Cir.1993) (noting the danger of admitting evidence of similar crimes, but holding that a district court may nevertheless determine that the importance of the credibility determination requires admission of the previous conviction), cert. denied, — U.S. -, 114 S.Ct. 1412, 128 L.Ed.2d 83 (1994). Finally, we note that the court’s instruction cautioned the jury that the conviction was to be considered solely to assess the credibility of the defendant.
3.
Having found no reversible error in the adjudication of guilt, we now turn to the sentencing issue raised by Mr. Hernandez.
The district court imposed a two-level enhancement for use of a dangerous weapon. See U.S.S.G. § 2A4.1(b)(3).2 Mr. Hernandez asserts that there is no evidence he ever possessed a weapon. He further submits that the testimony of the victim Villanueva that other kidnapers held him at gunpoint was not credible and is not supported by any corroborating evidence. According to Mr. Hernandez, neither the firearms nor the two other men existed. In short, Mr. Hernandez contends that the government did not prove the appropriateness of the dangerous-weapons enhancement and that, therefore, it was clear error for the district court to impose the increase mandated by this provision.
In essence, Mr. Hernandez’ objection to the imposition of this enhancement is based on the credibility of the witnesses who testified that his confederates were armed during the kidnaping. As we have pointed out in our discussion of the insufficiency of evidence claim, the jury was free to believe or not to believe Villanueva’s testimony. It was able to evaluate the defendant’s submission that the gunmen were not present when Villa-nueva was taken to the tollway rest area, an excursion that ended in Mr. Hernandez’ apprehension. The jury believed the victim’s story rather than the defendant’s version. Indeed, Villanueva’s description of the kid-naping strongly supports the district court’s decision to impose the § 2A4.1(b)(3) increase.
The two-level increase at issue is employed if “a dangerous weapon is used.” If a firearm was discharged or otherwise used, section 2A4.1 applies. See U.S.S.G. § 2A4.1, comment, (n.2); United States v. Gaytan, 74 *741F.3d 545, 559 (5th Cir.), cert. denied, — U.S. -, 117 S.Ct. 77, 136 L.Ed.2d 36 (1996). “Otherwise used” means more than brandishing, displaying, or possessing a firearm, the Guidelines establish. U.S.S.G. § 1B1.1, comment, (n.l(g)). As our colleagues in the Third Circuit have pointed out, the language of the guideline and its commentary is not helpful in delineating between the three activities specifically mentioned-brandishing, displaying, possessing—and other uses of a firearm. See United States v. Johnson, 931 F.2d 238, 240 (3rd Cir.) (discussing U.S.S.G. § 2A2.2(b)(2) enhancement for aggravated assault), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991). In the absence of clear language in the guidelines, the courts have had to draw the necessary distinction. “Brandishing” has been most problematic because, among its definitions, the dictionary gives “ ‘to shake or wave (a weapon) menacingly.’ ” Id. (quoting Webster’s Third New International Dictionary 268 (1976)). The same reference gives as synonyms “flourish” and “wave.” Id. In making the needed distinction, the circuits that have ruled on the matter are unanimous in holding that there is a qualitative difference between pointing or waving about a firearm and leveling the weapon at the head of a victim with a specific threat, communicated in some fashion, that noncompliance with the demand will result in the discharge of the weapon. For instance, our colleagues in the Eleventh Circuit, interpreting the section before us today, have held that the enhancement is appropriate when the firearm was leveled at the victim’s head and she was told that she would be killed if she did not comply. United States v. Gordon, 19 F.3d 1387, 1388 (11th Cir.) (per curiam), cert. denied, — U.S. -, 115 S.Ct. 267, 130 L.Ed.2d 185 (1994). In the view of the Eleventh Circuit, when a dangerous weapon is pointed at a specific person in order to intimidate that person into following specific orders, such activity constitutes more than “brandishing” the firearm and therefore merits the enhancement. Id. The Fifth Circuit has reached the same result. In United States v. De La Rosa, 911 F.2d 985, 992-93 (5th Cir.1990), cert. denied, 500 U.S. 959, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991), the judges of that court determined that the enhancement was justified when the wave of the firearm was accompanied by specific threats to specific people to induce those individuals to take specific action. As we have already rioted, the Third Circuit, in interpreting a parallel section of the guidelines, has held that a specific threat, backed up by the display of a firearm in the immediate vicinity of the victim’s person, constitutes more than “brandishing.” See Johnson, supra. Interpreting this same parallel section, the Sixth Circuit had no difficulty in holding that the defendant had “otherwise used” a weapon (a knife) when he held it against the victim’s throat and threatened her life. United States v. Hamilton, 929 F.2d 1126, 1130 (6th Cir.1991) (interpreting § 2A2.2(b)(2), offense characteristics of aggravated assault). The Tenth Circuit, on similar facts, interpreted a similar provision in the same manner. United States v. Roberts, 898 F.2d 1465, 1470 (10th Cir.1990) (interpreting § 2B3.1(b)(2), offense characteristics of robbery).
We see no reason to depart from the approach adopted by the other circuits. Nor do we have any doubts that the district court was on solid ground in determining that the § 2A4.1(b)(3) enhancement was appropriate here. The district court, to whose determination we must give “due deference,” United States v. Hammick, 36 F.3d 594, 597 (7th Cir.1994), specifically determined that the firearm was “part and parcel” of the victim’s forcible abduction in the car. Accordingly, we must conclude that there was no clear error in imposing the enhancement. See United States v. McGill, 32 F.3d 1138, 1143 (7th Cir.1994).
Conclusion
The district court committed no reversible error. Accordingly, its judgment must be affirmed.
Affirmed.
3.3.10 Excerpt from United States v. Perryman, 2012 WL 1536745 (N.D. Okla 2012) 3.3.10 Excerpt from United States v. Perryman, 2012 WL 1536745 (N.D. Okla 2012)
This case excerpt emphasizes the distinction between the standard for admission of convictions under Rule 609(a)(1) and Rule 609(a)(2).
Mendelsohn v. Sprint/United Management Co., 466 F.3d 1223, 1231 (10th Cir.2006). Exclusion of evidence under Rule 403 is an extraordinary remedy that should be used sparingly. World Wide Ass'n of Specialty Programs v. Pure, Inc., 450 F.3d 1132, 1139 (10th Cir.2006).3.3.11 Excerpt from United States v. Collier, 527 F.3d 695 (8th Cir. 2008) 3.3.11 Excerpt from United States v. Collier, 527 F.3d 695 (8th Cir. 2008)
This case excerpt (1) illustrates the judge’s inability to exercise 403 discretion over the admission of a Rule 609(a)(2) conviction; (2) provides helpful reminders about the standard of review, definitive rulings, and the scope of cross, and (3) illustrates the principle that evidence can be not-admissible for one purpose but admissible for another.
18 U.S.C. §§ 922(g)(1) and 924(a)(2). Collier appeals the district court's ruling that the nature of his predicate felony, the sale or receipt of an access card to defraud, was admissible as impeachment evidence if he testified. . . . We affirm.18 U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing, the district court denied the government's motion for an enhancement for obstruction of justice, concluding that the government failed to show by a preponderance of the evidence that Collier perjured himself when he denied knowing about the gun.United States v. Headbird, 461 F.3d 1074, 1078 (8th Cir.2006).Jones v. Bd. of Police Comm'rs, 844 F.2d 500, 505 (8th Cir.1988) (“Under subsection (2) [of Rule 609(a) ], a conviction (felony or misdemeanor) involving dishonesty or false statement is, subject to the ten-year limit imposed by Rule 609(b), always admissible; there is no balancing to be done.”)); Federal Rules of Evidence Manual at § 609.02[3].Headbird, 461 F.3d at 1078. Here, the scope of the cross examination concerning Collier's predicate conviction did not go beyond facts Collier testified to during his direct examination.All Citations
527 F.3d 695, 76 Fed. R. Evid. Serv. 891Footnotes
Comprehension Questions Set 7 Comprehension Questions Set 7
3.3.12 OPTIONAL for Class 7 3.3.12 OPTIONAL for Class 7
3.3.12.1 OPTIONAL: Excerpt from United States v. Crutchfield 3.3.12.1 OPTIONAL: Excerpt from United States v. Crutchfield
This is the “I know everything about iguanas” case that is mentioned in your text. This excerpt covers the court’s reasoning as to why the questions violated 608(b). Read this if you want a clearer picture of the court’s rationale than the text provided, or if, like me, you cannot stand to miss a moment of this train-wreck of a case.
Appellants Tom and Penny Crutchfield are commercial importers and distributors of reptiles. Prior to their indictment in this action, the Crutchfields were the proprietors and managers of Herpetofauna, Inc., one of the largest dealers and importers of exotic reptiles in the United States. . . . The crucial issue before the jury in the Crutchfield case was whether the Figis possessed by Herpetofauna . . . were illegally imported into the United States by the Crutchfields without the requisite [Convention on International Trade in Endangered Species of Wild Fauna and Flora] permits, or whether these iguanas were the captive-bred progeny of legally imported “pre-act” Figis. . . . After hearing the evidence, the jury returned a verdict against the Crutchfields.. . .
B. Improper Questioning of Witnesses
Several lines of questioning pursued by the prosecutor in this case were not only completely irrelevant, but also constituted improper character evidence under Rules 404, 608 and 609 of the Federal Rules of Evidence. Although the record provides several examples of these improper and highly prejudicial prosecutorial inquiries, we will specifically address in detail only the two most egregious illustrations. . . .
2. Cross Examination of Robert Harding
A second example of the prosecutor's misconduct in his questioning of the witnesses came during his cross examination of defense witness Robert Harding. Harding was introduced by the defense as both a friend and former employee of Tom Crutchfield. During the course of his direct testimony, Harding stated that he had on occasion smoked marijuana with another of Crutchfield's former employees. The prosecutor began his cross-examination of Harding by asking:
“Q. You live down in that Ft. Myers Beach area for a long time?
“A. No sir.
“Q. Where did you live during most of that 20 years in Lee County?
“A. Most of the time I lived in either Ft. Myers or for the past approximately eight and a half years in Lehigh Acres.
“Q. Are you aware of the mullet boats coming in at night without lights around that area carrying the square grouper off of the boats there?”
At this point, appellants' counsel lodged an immediate objection. Before the court could rule on the objection, however, the prosecutor quickly asked:
“Q. Do you know what a square grouper is?”
Appellants' counsel again objected. The district court sustained this objection and began to instruct the prosecutor to wait until it had ruled on objections before continuing with his inquiry. The prosecutor, however, interrupted the court mid-sentence and posed the following question to Harding:
“Q. Weren't you involved in obtaining bales of pot?”
After hearing this final question, the court was forced to clear the courtroom. Appellants' counsel then moved for a mistrial based on the prosecutor's repeated improper inquiries designed solely to suggest the poor character of Harding in violation of Federal Rule of Evidence 608(b). The prosecutor responded by suggesting that his questions to Harding were somehow appropriate because of his personal expertise in the prosecution of drug cases and because of his knowledge of many illegal activities in the area where the witness resided. He also contended that defense counsel, during his direct examination of Harding, had opened the door to this line of questioning. The court disagreed and sustained appellants' objection. Upon their return, the court instructed the jury to disregard the last several questions asked by the prosecutor as they had been ruled improper.
We do not believe that a detailed explanation regarding the impropriety of [this line] of questioning is necessary. . . .
. . . [T]he prosecutor's questioning of Robert Harding on cross examination was unquestionably out of line and an obvious violation of Federal Rule of Evidence 608(b).FN5 We disagree with the prosecutor's contention at trial that Harding's single statement regarding his past occasional marijuana use entitled the prosecutor to follow up with questions about Harding's knowledge of “mullet boats” and “square grouper.” . . . While questions regarding the extent of Harding's personal use of marijuana may have been proper on cross examination, questions designed to implicate Harding as a large scale buyer or distributor of marijuana clearly were not. These questions were outside the scope of direct examination. Moreover, the prosecutor apparently lacked even a good faith basis for these allegations and was simply attempting to discredit Harding's testimony with the jury.FN7
FN5. Rule 608(b) generally prohibits the impeachment of witnesses by inquiry into specific bad acts of misconduct unless those acts resulted in a criminal conviction as described in Rule 609. United States v. Cox, 536 F.2d 65, 70 n. 11 (5th Cir.1976).
FN7. When asked by the court whether he had any reason to believe that Harding was involved in any way in the importation of marijuana, the prosecutor responded simply that he had “suggestions to that effect.” However, he never offered to substantiate these “suggestions” for the court.
Proposed Change to Rule 609 from a CUNY Law student Proposed Change to Rule 609 from a CUNY Law student
As you know, this course asks you to recommend a change to the rules of Evidence. In a prior year, a student recommended the following change to Rule 609.
[T]he history of disparate treatment and race must be added as one of the factors in the balancing test for defendants.
The current factors that courts must consider in the balancing test when admitting evidence under 609(a)(1)(B) are: (i) the impeachment value of the previous criminal act; (ii) the point in time of the conviction and the defendant's subsequent history; (iii) the similarity between the past crime and the charged crime; (iv) the importance of the defendant's testimony; and (v) the centrality of the defendant's credibility.[1]
More specifically, the judge should consider (i) number of individuals convicted of that felony in the prior decade; (ii) race of the individuals convicted of said felony (iii) number of convictions that were overturned or appealed; and (iv) race of the parties whose convictions were overturned on appeal. The judge should also consider social science research about the particular felony, and the impact it has had on members of the defendant’s racial group. If available, judges should look at legislative efforts and debates surrounding the felony. Along with race, judges should consider the economic and familial support of the defendant, to decipher whether the felony could be linked to the lack of either. Additionally, judges, where possible, must be encouraged to interview defendants, and deem their views and opinions about their prior convictions; view their parole board materials, speak to past investigators and individuals involved in the matter. After all, all people can rehabilitate, change, and grow from their previous past crimes. No one is stationary.
[1] David Crump, Does Impeachment by Conviction Create Undue Prejudice? An Experiment and an Analysis, 53 Akron L. Rev. 1 (2019)
3.4 Class 8 3.4 Class 8
No Merritt & Simmons textbook assignment for Class 8 No Merritt & Simmons textbook assignment for Class 8
3.4.1 Excerpt from “The Mis-Characterization of the Negro”: A Race Critique of the Prior Conviction Impeachment Rule 3.4.1 Excerpt from “The Mis-Characterization of the Negro”: A Race Critique of the Prior Conviction Impeachment Rule
By Montre D. Carodine, 84 Indiana Law Journal 521 (2009)
In this article, Professor Carodine critiques the operation of Rule 609 and argues that the racism of the criminal justice system undercuts the reliability of convictions produced by that system – which in turn undermines the value of those convictions for assessing credibility. Please read the except below (and you can find the full article here).
In addition to exposing the ways ostensibly racially-neutral evidence laws have disproportionate racial impacts, this excerpt is also useful for reviewing the operation of Rule 609 and understanding the implications of the rule for criminal defendants.
. . . The [criminal justice] system and society at large have criminalized the very fact of being Black. The construction of Black criminality is facilitated in the justice system largely through racially biased rules.
This Article critiques one such rule-the deeply entrenched evidentiary rule that allows prosecutors to impeach the credibility of criminal defendants with their prior convictions. This Article demonstrates that the prior conviction impeachment rule gives evidentiary value to race through its reliance on a criminal justice system that imposes the “Black tax,” an unjustified disadvantage to Blacks, and granting the “White credit,” an undeserved benefit to Whites.[1]
*522 Scholars have critiqued the prior conviction rule as if it operates in a race neutral manner. This Article challenges the notion that prior convictions are inherently reliable, arguing that the mounting evidence of racial bias in the criminal justice system renders prior convictions so unreliable that they raise serious due process concerns for criminal defendants. This Article also offers solutions. Congress and state legislatures should eliminate the use of prior convictions against criminal defendants. Unless or until there is legislative intervention, courts should require prosecutors to establish the reliability of the convictions that they offer for impeachment and also allow defendants to “impeach” the credibility of the criminal justice system, which is the hearsay “declarant.”
Introduction
This Article seeks to expose and eliminate the racially biased operation of Rule 609 of the Federal Rules of Evidence, which provides for impeachment of criminal defendants with their prior convictions. . . .
Under Rule 609 of the Federal Rules of Evidence, and similar state versions of the rule, an accused in a criminal case can be impeached with his prior convictions if he decides to exercise his right to testify at trial. [FN10] That is, the prosecution can argue that the defendant is untrustworthy because he was previously convicted of an unrelated crime in prior proceedings. The policy underlying this rule is what Professor H. Richard Uviller once described as the “ancient assumption” that “[f]elons of all descriptions are forever afterward less truthful than other folk on any subject.” [FN11]
Rule 609 is one of the most controversial, if not the most controversial, of all of the rules of evidence. [FN12] In fact, the use of prior convictions for impeachment purposes has been the subject of numerous law review articles and other legal commentary, much of which harshly criticizes the rule and its underlying premise. [FN13] It is widely known and accepted that a criminal defendant whose prior criminal record is revealed to a jury is highly likely to be convicted based on that prior record. [FN14] Indeed, a criminal defendant with a record is much more likely to be convicted than one without a record. [FN15] Scholars and judges largely recognize prior convictions to be highly prejudicial to criminal *525 defendants. [FN16] The current scheme under Rule 609 places a criminal defendant in a no-win situation. The defendant can remain silent and not testify-thus prejudicing him in the eyes of the jury for failing to tell his side of the story-or he can face certain prejudice by testifying and being impeached with his convictions. Effectively, then, Rule 609 impeachment provides prosecutors a route to “efficient” convictions. [FN17] Given the degree of criticism of the rule, its failure to ascertain credibility with any measure of certainty, and the grave potential to cause prejudice to criminal defendants, it is baffling why it remains a part of evidence law.
This Article fills a gap in the legal scholarship on impeachment with prior convictions, providing a race critique of the practice and suggesting that race plays a role in the continued viability of the “ancient assumption” that once someone is convicted of a crime, he is forever untrustworthy. This Article also contributes to the legal scholarship on race and the criminal justice system, which has not given enough attention to the impact of evidentiary rules on the overrepresentation of minorities in the criminal justice system. Because of the mass incarceration of minority defendants, particularly Black defendants, race should be of paramount concern to scholars critiquing the theory and practice of impeachment with prior convictions. It is simply not enough to critique the rule as if it were race neutral.
Recent statistics reveal that nearly half of all inmates in state or federal prisons and local jails are non-Hispanic Blacks. [FN18] In terms of raw numbers, there are more than one million Blacks in prison or jail on any given day. [FN19] These numbers are staggering, and unfortunately, they seem to be rising. Commentators have offered various compelling theories explaining the disproportionate number of incarcerated Blacks, including the following: the “over-policing” of Black communities, [FN20] the “war on drugs” (which *526 unfairly targets minorities), [FN21] prosecutorial bias, [FN22] and other flaws and biases in the trial process that result in Blacks receiving harsher treatment than Whites and innocent minority defendants being convicted. [FN23] These well-supported theories contradict the notion that Blacks are simply more prone to committing crimes. To the contrary, Blacks are more prone to being swept up in a criminal justice system that is, in many respects, hostile to and biased against them. A rule such as Rule 609, which almost ensures convictions based simply on a defendant's prior record, is particularly disturbing when one considers the plight of Blacks in the criminal justice system. Once a Black person is convicted of a crime (a likely scenario given the current statistics), that conviction will help to convict him again if he is ever charged with another crime (another very likely outcome given the “repeat offender” statistics for Blacks). [FN24] Rules such as Rule 609 keep Blacks ensnared in the criminal system, perpetuating the criminalization of a staggering percentage of the Black population.
. . . I argue that given the bias against Blacks and in favor of Whites in the system, prior convictions lack the type of reliability that the evidentiary rules strive to ensure and thus raise serious due process concerns.
Part I of this Article considers the general problem of race as predictive character evidence. I argue that race is evidence inside and outside the courtroom, and most often race is used to make predictive character judgments. . . . Against this backdrop, I consider the embodiment of race as predictive character evidence in Rule 609.
Part II looks in depth at Rule 609 in theory and in practice. . . . I demonstrate that Rule 609 is indeed problematic for defendants. I discuss a recent empirical study establishing that a substantial number of convicted felons, later determined to have been actually innocent, decided not to testify at their trials for fear that they would be impeached with their prior convictions. Moreover, I argue that even though the vast majority of criminal cases do not go to trial and result in plea bargains, defendants often accept plea deals because they believe that the ability of the prosecutor to impeach them with their priors substantially weakens their case.[2]
This lack of reliability, moreover, raises serious due process concerns with respect to the admissibility of prior convictions against Black defendants. I discuss the due process issues in Part IV, where I also offer solutions for reform. I propose that Congress amend Rule 609 by eliminating the practice of impeaching criminal defendants altogether. . . . If prior convictions are admitted, juries should hear about potential or probable sources of bias in the system that could have led to the defendant's criminal conviction.
I. How the Color of Skin Defines the Content of Character: Recognizing Race as Character Evidence Inside and Outside of the Courtroom
Race is evidence. Rule 609 permits juries to infer that witnesses with prior convictions, including criminal defendants, have poor character for truthfulness. And studies show that jurors often go even further and misuse the prior conviction as evidence of bad character generally. As I establish later in this Article, Rule 609 embodies the concept of race as character evidence and, more specifically, it perpetuates the use of race as evidence of bad character. . . .
A. Learning from the Past: The Predictive Nature of Character Evidence
The evidence rules reflect the legal system's beliefs about the best means by which to ascertain “truth.” . . .
We use character as a form of predictive evidence. Character evidence is one of the most powerful and frequently used types of evidence, both inside and outside the courtroom. We assess character on a daily basis, making predictive determinations based on past experiences. [FN34] Generally, however, the rules of evidence prohibit the use of character evidence to show that a person acted in conformity with her character on a particular occasion. [FN35] In other words, the character-propensity ban prohibits retrospective reasoning based on a person's character. The problem with character *530 evidence is not that it is thought to be irrelevant. [FN36] To the contrary, the general ban against character is based on the concern that jurors might give too much weight to character evidence and will decide the case based largely or solely on a person's character. [FN37] As I will discuss in Part II, Rule 609 is a specific exception to the character-propensity ban that permits a jury to consider a prior conviction as evidence of untruthfulness, though not as evidence of general bad character. . . .
B. Viewing Character Through a Racially Biased Lens: Assessing the “Black Tax” and Granting the “White Credit”
. . .
1. Race as Predictive Character Evidence
In our society, blackness often connotes bad character. Race generally-as used in American society-has relevance in day-to-day assessments of character. When Dr. Martin Luther King, Jr. famously told America of his dream for its future-his dream that his “four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character” [FN38]-he identified just why racism is fundamentally unfair. It is unfair because it is a means of circumventing an accurate assessment of character. His use of the word “judged” is significant because often the idea of judging connotes the forming of an opinion “through careful weighing of evidence and testing of premises” or the drawing of conclusions “after inquiry and deliberation.” [FN39] The word “judge” can also have a more negative connotation, meaning “to criticize or condemn somebody on moral grounds” [FN40] without an adequate basis. . .
C. The Racially Biased Operation of Apparently Race Neutral Rules of Evidence
It is my position that, as a general matter, the rules of evidence should be structured in a way that openly acknowledges the evidentiary value of race while simultaneously working to diminish that value to the extent that it is unfairly prejudicial. The rules currently operate in the opposite manner. They do not acknowledge the evidentiary value of race but at the same time often operate in a manner that perpetuates and increases the probative value and prejudicial effect of race. Not only does the Black tax manifest itself in the way that jurors and prosecutors independently view Black defendants, but the Black tax is camouflaged in the rules of evidence that filter what the jury hears about the case. This is true particularly in criminal cases.
The evidence rules, which appear to be race neutral, can instead operate in a racially biased manner, giving race evidentiary value. In many ways, the racially biased operation of the rules of evidence is more troubling than prosecutors', jurors', and judges' misuse of race as evidence. The rules are an official statement about what constitutes reliable evidence in a courtroom. When the rules of evidence give unfair prejudicial evidentiary value to race, they sanction the practice in a very official manner and empower prosecutors to appeal to racial bias and jurors and even judges to make decisions based on racial bias.
The remainder of this Article deals in particular with the use of race as evidence in the operation of Rule 609. Rule 609, which characterizes persons with prior convictions as untrustworthy, relies solely on the criminal justice system in identifying those witnesses who are not credible. The rule, however, does not account for the treatment of Blacks in the criminal justice system though numerous studies have demonstrated that racial bias exists at every stage in the criminal justice process.
Moreover, as most Americans associate Blacks with crime, revealing a Black defendant's prior convictions under Rule 609 reinforces widely held stereotypes about Blacks and encourages jurors to engage in reasonable racism. Throughout the criminal process, police, prosecutors, witnesses, judges, and jurors have been shown to engage in reasonable racism in one form or another. The current practice of prior conviction impeachment then makes use of prior convictions rooted in reasonable racism as evidence to obtain more convictions, resulting in the creation of Black recidivism.. . .
II. Rule 609 in Theory and in Practice
. . .
A. Historical Roots of Prior Conviction Impeachment
. . .
The judicial system considered criminal defendants in particular to be the “most likely liars of all.” [FN83] The system also considered persons previously convicted of crimes to be likely liars and hence prohibited them from testifying. [FN84] As with convicted felons and criminal defendants, the competency rules in the United States prohibited *538 Blacks from testifying as well, at least in certain circumstances. [FN85] Eventually, common law jurisdictions abandoned the old competency rules, even the rules excluding testimony from convicted felons, criminal defendants, and from Blacks. [FN86] There was a catch, however, in the abandonment of the competency rules. Anyone who testified, even criminal defendants, would be subject to impeachment with his or her prior convictions. [FN87] Rule 609 codified the practice of impeaching witnesses, including criminal defendants, with their prior convictions.
B. Rule 609: An Exception to the General Ban on Character-Propensity Evidence
Generally, the Rules of Evidence forbid the use of character evidence to show that a person acted in conformity therewith on a particular occasion. [FN88] This general ban on character-propensity evidence is embodied in Rule 404 of the Federal Rules of Evidence. [FN89] The underlying rationale for the ban is not that such evidence is irrelevant. Instead, the concern is that the jury will give the evidence too much weight, and in the case of a criminal defendant, convict the defendant on the basis of prior bad conduct instead of focusing on his guilt or innocence with respect to the current charges. Rule 609, among others, is an express exception to this general ban on character-propensity evidence. [FN90] The rule permits the use of certain prior convictions to show that a witness has a propensity to lie. Juries are not, however, supposed to use the prior convictions as evidence of the defendant's bad character generally.
Under the federal version of the prior conviction impeachment rule, the prosecution or defense can impeach any witness, including a defendant who chooses to testify, with evidence of her prior convictions. [FN91] Congress passed Rule 609 in 1975, and most states have adopted Rule 609 or some version of it. . . .
The theory underlying Rule 609 is that a person who has in the past committed a crime is less credible than a person with a “spotless record.” [FN97] The evidence is necessary, the theory goes, because without it jurors would likely presume that the witness is an upstanding citizen who has led a life beyond reproach and is, therefore, worthy of being believed. [FN98]
Under the federal scheme, generally, only convictions punishable by death or imprisonment for more than a year can be used for impeachment. [FN99] But the length of punishment is irrelevant if the prior conviction was for a crime that required an act of dishonesty or a false statement to satisfy the crime's elements. [FN100] For convictions other than those involving dishonesty or false statement, there are distinctions in Rule 609 in the standards for impeaching ordinary witnesses and defendants who testify. The prior convictions of ordinary witnesses are subject to the ordinary Rule 403 catchall balancing test. [FN101] Rule 403 provides that “[a]l ythough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .” [FN102] This rule applies to nearly all otherwise admissible evidence. [FN103]
The prior convictions of criminal defendants, however, are subject to a different standard, which is found in the text of Rule 609(a)(1): the probative value of the conviction has to outweigh the prejudicial effect to the accused. [FN104] In theory, the standard for admitting the prior conviction of a defendant is higher than the standard *540 for admitting the prior conviction of an ordinary witness. [FN105] With respect to criminal defendants, the prosecutor carries the burden of showing that the probative value of the conviction outweighs the prejudicial effect to the accused. [FN106] With respect to other witnesses, the burden of proof is on the party seeking to exclude the conviction to show that, under Rule 403, the probative value is substantially outweighed by the danger of unfair prejudice. [FN107] The rule, therefore, on its face recognizes the inherent prejudice to a criminal defendant when the jury is informed of his or her prior convictions. In practice, however, judges routinely admit evidence of testifying defendants' prior convictions for impeachment purposes, [FN108] and appellate courts routinely affirm trial judges' admission of such evidence. [FN109]
Rule 609 also distinguishes between the types of crimes with which a witness or defendant who chooses to testify may be impeached. Unlike general felonies, crimes requiring in the establishment of their elements dishonesty or false statement are per se admissible. [FN110] In other words, there is no applicable balancing test, and there is no discretion for the trial judge to exclude them. Convictions older than ten years are presumptively inadmissible, and the inherent prejudice with respect to such convictions can be overcome only upon finding that “the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” [FN111] The rule is most protective of juvenile adjudications, which are simply inadmissible against criminal defendants. [FN112] And for ordinary witnesses, juvenile adjudications are only admissible if the court finds that they are “necessary for a fair determination of the issue of guilt or innocence.” [FN113]
As applied to the criminal defendant, the obvious problem with Rule 609 is the grave likelihood, indeed the near guarantee, of prejudice to the accused. [FN114] As *541 recognized by the Luck/Gordon doctrine, which supplied the test for the admission of prior convictions before the enactment of Rule 609, this potential for prejudice is certainly not a new concern. [FN115] To the contrary, it has always been largely known and expected that juries will misuse this evidence despite courts' limiting instructions informing them of the purpose of the evidence. [FN116] And a recent empirical study has confirmed what courts, commentators, and lawmakers have suspected for years, revealing findings that “uniformly suggest that knowledge of a defendant's prior record promotes conviction in close cases, those where one should be most concerned about erroneous conviction” and noting that “[t]he criminal record effect could be even stronger than [the researchers] have found in these analyses.” [FN117] In some ways the law actually recognizes the potential prejudice inherent in revealing prior convictions of criminal defendants. In fact, the erroneous admission of prior conviction evidence “even in the face of other evidence amply supporting the verdict, constitutes plain error impinging upon the fundamental fairness of the trial itself.” [FN118] As the Tenth Circuit has put it:
[A]n obvious truth is that once prior convictions are introduced the trial is, for all practical purposes, completed and the guilty outcome follows as a mere formality. This is true regardless of the care and caution employed by the court in instructing the jury. Thus, it is clear that the problem is not a simple evidentiary one, but rather goes to the fundamental fairness and justice of the trial itself. [FN119]
If jurors hear that the accused was previously convicted of a crime, even if the crime was completely unrelated to the current charges against the defendant, there is a substantial likelihood, indeed a substantial probability, that the jury will convict the *542 defendant for being a “bad” person generally. [FN120] Moreover, in determining whether the accused is guilty, the jury is likely to give excessive or improper weight to the prior conviction.
The typical charge instructing the jury on prior convictions used for impeachment purposes instructs them to not consider the convictions as evidence of guilt but to help “judge the credibility and weight of the testimony given by the defendant as a witness in this trial.” [FN121] Even though trial courts routinely render such instructions that are nearly intellectually impossible to follow, appellate courts refuse to find error, resting upon the settled fiction that presumes juries understand and follow trial judges' instructions. [FN122] But there is ample research showing that the many jurors simply do not understand jury instructions. [FN123] Moreover, studies show that it is almost impossible for jurors to put aside forceful and prejudicial evidence even when the court specifically instructs them to do so. [FN124] And there is no doubt that evidence of a defendant's prior conviction is both powerful and prejudicial. [FN125]
The other problem with Rule 609 is that it provides for the admissibility of evidence with relatively low probative value. Professor Uviller specifically criticized Rule 609 on this point, stating that “[t]he theoretical discontinuity perpetuated by Rule 609 is a major wrench to reason.” [FN126] He questioned the probative value of prior conviction impeachment, calling it an “ancient precept” that “is the reverse of common experience.” [FN127] Prior convictions are simply not predictive of who will likely lie under oath. The people who are likely to lie under oath do so based on two factors: “the importance to them of having a falsehood believed and their confidence that their false testimony will achieve that end with minimal risk.” [FN128] In light of the low probative value of prior convictions in assessing truthfulness and the grave potential that jurors will use them to determine guilt, it has been argued that prior conviction impeachment can burden the constitutional right to testify. [FN129]
*543 These concerns with prior conviction impeachment were not lost on Congress. As one scholar has said, “the extraordinary amount of congressional interest generated by Rule 609(a) derived from the fact that the Rule significantly affects the outcome of criminal trials.” [FN130] Indeed, though the congressional debate frequently appeared to focus on the particulars of Rule 609, it actually was a “broad and ideological” exchange about the proper balance between protecting criminal defendants' rights to a fair trial and protecting the public from criminals. [FN131] . . .
Based on the disproportionate impact alone, Rule 609 has harsh consequences for the Black community. Notably, in an essay on the judicial process, racism, and actual innocence, Judge Stephen Fortunato of the Rhode Island Superior Court pointed out the disproportionate impact of Rule 609 on Black defendants: “While the admission of a prior record hurts a defendant, whatever his color, Blacks wishing to testify in their own defense in a criminal trial are more disadvantaged as a group than [W]hites.” [FN176]
Judge Fortunato's observation is an excellent starting place, as the studies are clear that Black defendants are more likely than Whites to have a criminal record. But there is more to the race problem of Rule 609 than just its disproportionate impact. To understand how Rule 609 both reflects and shapes the evidentiary meaning of character, we must look at why Blacks are more likely to have a criminal record than Whites. The racial disparity studies that I discuss in Part III have an underlying thread that connects them. That thread is character.
Misperceptions about the inherent character of Blacks lead to disparities in the way they are treated in the criminal justice system. Rule 609 then becomes a part of the cycle of the mischaracterization of Blacks. Rule 609 accepts, without question, the criminalization of a substantially disproportionate segment of the population based on perceptions of their character and serves to sustain this systemic mischaracterization.
What is not overtly stated in the legislative history of Rule 609 or in the scholarly commentary about Rule 609 is that when most people think of the stereotypical “criminal,” regardless of their race, a Black face comes to mind. [FN177] Rule 609 perpetuates the belief that blackness equates bad character. As discussed above, the theory underlying the rule is that persons with certain prior convictions-those serious enough to be considered felonies in most jurisdictions or those involving dishonesty or false statement-are dishonest. This underlying theory is consistent with the historical stereotype of Blacks as dishonest. [FN178]
Rule 609 effectively permits juries to find that because the defendant previously committed a crime, he is a “bad” person generally. Thus, the more realistic evidentiary use of prior convictions under Rule 609 is as general character evidence. This use of the rule is also consistent with the idea that Blacks tend to have overall bad character.
D. Is Rule 609 Really a Problem for Criminal Defendants?
Judge Fortunato's comments regarding the disproportionate effect of Rule 609 on Blacks is significant as a practical matter, given his perspective from the bench. [FN179] His observations provide powerful evidence about the day-to-day practical impact of Rule 609 on criminal defendants, particularly Blacks. But putting race issues aside for a moment, one might wonder about the role that Rule 609 actually plays in practice on a day-to-day basis in the criminal justice system as a general matter. Does the existence *551 of Rule 609, though often criticized by scholars, have much of an impact as a practical matter? The answer is an unqualified “yes.”
1. Effect on Plea Bargaining
Of course, it is widely known that the vast majority of criminal cases do not go to trial. In fact, around ninety-five percent of criminal defendants enter guilty pleas. [FN180] Because Rule 609 is a rule that governs in the event of a trial, one may wonder about its impact as a practical matter. Though criminal trials are relatively few and far between, Rule 609 is nevertheless an important rule-even outside of the courtroom.
As any good litigator knows, the rules of evidence are important not only at trial but also, and perhaps more so, during the pretrial stage of a case. Knowing beforehand the likelihood that certain information will or will not be admissible aids significantly in evaluating the strength of a case. Indeed, available data and common experience demonstrate that Rule 609 is a very real threat to criminal defendants with prior records, one that they consider-and which is often at the forefront of their minds-in deciding whether or not to go to trial. The real fear of being impeached dissuades defendants from taking the stand if they go to trial and, in a number of cases, from even going to trial at all.
In recounting the history of plea bargaining, Professor George Fisher notes that “[t]he upshot [of] a law that purported to grant defendants a new right to testify at trial instead deprived those defendants who had criminal records of the right to any meaningful trial, and left them with little alternative but to seek the best plea bargain they could get.” [FN181] Fisher observes that “[t]he dramatic conversion to a plea bargaining regime” began a relatively short period after defendants gained the right to testify and, in turn, gained the risk of impeachment with their prior convictions. [FN182] Indeed, the criminal defendant impeachment rules serve as “strong allies” that aid in promoting the plea bargaining system. [FN183] Empirical evidence also demonstrates that whether a defendant has a prior conviction is among the crucial considerations that a criminal defendant and her lawyer take into account when deciding whether to forgo a trial and to accept a plea agreement. [FN184]
2. Effect on Decision to Testify
Should they decide to take their chances and go to trial, defendants with prior criminal records face the dilemma of whether to testify and tell their story or to sit silently while other trial participants develop the story without them. And silent *552 criminal defendants must face the fact that jurors want to hear a narrative. [FN185] In fact, studies have shown that the narrative aspect of trials is of paramount importance. [FN186]
[T]rials are essentially “story-battle[s].”. . . The jurors then compare their own stories with those offered by the parties. The side who can offer a story which the juror accepts as the “best” explanation of the evidence presented, and the closest match to his or her own narrative, will win the juror's vote in the end. [FN187]
Thus, jurors construct their own stories and compare them to those that the prosecution and defense presented. They base their comparisons in part on what they believe makes a “complete story.” [FN188] In the end, “[t]he defendant's ability to tell the right story-and to tell it completely-is a powerful influence on the outcome of a trial and thus central to the protection of his constitutional right to present a complete defense.” [FN189] Rule 609 greatly diminishes the criminal defendant's ability to present a narrative, or at least a believable narrative, to the jury. [FN190] A criminal defendant who is unable to make his own “contribution” to the jury's constructed narrative is at a significant disadvantage.
The United States Constitution, as interpreted by the Supreme Court, guarantees criminal defendants the right to testify in their own defense. Specifically, the Supreme Court has stated that “[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment, . . . or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, . . . the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.”’ [FN191] Facing the very real likelihood that the prosecution will use their prior convictions to impeach them, many defendants simply remain silent. [FN192] This fact severely undermines criminal defendants' constitutional right to testify in their own defense. Indeed, it has even been argued that this forced silence is antithetical to the high value that our democracy places on speech and freedom of expression. [FN193]
A recent article by Professor John Blume provides empirical data that impeachment through prior convictions is of great concern to criminal defendants, even deterring defendants who are later proven to be factually innocent from testifying on their own *553 behalf. [FN194] Professor Blume studied cases in which individuals were convicted and later exonerated because of DNA evidence. He found that “demonstrably innocent defendants do not testify in their own defense at substantially different rates than criminal defendants in general” and that “[v]irtually all of the defendants who did not testify had a prior record which would have been disclosed to the jury had they taken the stand.” [FN195] Either the defendants or their lawyers (or both) justifiably believed that once the jurors heard about their prior convictions, they were more likely to convict them on the basis that “the defendant is the type of person who would have done it.” [FN196] Blume's data has led him to “conclude that the current rules of evidence contribute to wrongful convictions.” [FN197]
Thus, Rule 609, which is a powerful tool in a prosecutor's arsenal, has a tremendous impact in the criminal justice system. The power of Rule 609 generally, coupled with its impact from a race standpoint, makes it all the more important to explore its reliability.
III. The Unreliability of Prior Convictions
. . . .
i. Jurors' (Un)Authorized Use of Race as Evidence
Rule 609 can become a part of the racial imagery that a prosecutor uses. If jurors are already predisposed to believe stereotypes about Black criminality, the introduction of Rule 609 evidence against a Black defendant will likely confirm those stereotypes-even though the prior conviction itself might have been the result of Black mischaracterization. Studies have shown that jurors consider race in a manner that is prejudicial to Black criminal defendants. [FN312] As an initial matter, there is already significant evidence against a criminal defendant embodied in the accusation of criminal behavior itself. [FN313] In every aspect of the trial, the prosecutor is labeling the defendant as a criminal. [FN314] The weight of the accusation of criminality can frustrate the presumption of innocence that we hold so dear in our criminal justice system. [FN315] When the defendant is Black, race adds even more weight to the force of the accusation. [FN316]
These observations about how race shapes society's views of criminality are quite significant in criminal cases because they hold true in the courtroom as well. “Jurors come from the same society that produces the shop owners, police, the readers of Time [which darkened the image of O.J. Simpson], and the constituents mentioned above [in Part I]. The opening statement of the prosecutor is even more likely to stick when the face they see at counsel table is a dark one.” [FN317]
Empirical evidence based on mock jury trials has demonstrated that in cases where evidence is not overwhelmingly in favor of one party or the other, race was especially significant in jurors' decision-making processes. [FN318] Moreover, studies have shown that in a criminal case where there is not much evidence against a defendant, the jury is more likely to convict the defendant if the victim is the same race as the jurors. [FN319] This is particularly significant because juries tend to be mostly White. [FN320] “[W]hen the evidence is sparse, jurors are more likely to attribute guilt to defendants of a different race. . . . [I]n marginal evidence conditions [B]lack defendants will tend to be acquitted less often than [W]hite defendants and [B]lack defendants with [W]hite victims will tend to be acquitted least often.” [FN321] Also, when the mock jurors were given incomprehensible sentencing guidelines, they tended to rely on race in their decision-*569 making processes. [FN322] This empirical evidence suggests, then, that White jurors would rely on racial stereotypes in weighing Rule 609 evidence, especially given the incomprehensible instructions that tend to accompany such evidence.
Professor Cynthia Lee discusses the “Black-as-criminal stereotype” and how it relates to a claim of self-defense. [FN323] She notes that “[t]he Black-as-criminal stereotype is so deeply entrenched in American culture that false claims of Black criminality are made and, in many cases, readily believed.” [FN324] She acknowledges that “[o]ne of the stereotypes most often applied to [Black] males is that they are more dangerous, more prone to violence, and more likely to be criminals or gang members than other members of society.” [FN325] She observes that Black women are also stereotyped as “untrustworthy, criminal, or dangerous.” [FN326] Drawing on social science studies, she concluded that such stereotyping can lead people to view ambiguous actions as violent when the actor was a Black person, but nonviolent when the actor was a White person. [FN327] Again Rule 609 evidence would reinforce these stereotypes and compound the already existing problem.
Studies have shown “that White Americans are willing to be particularly punitive when presented with stereotypical images of [Black] violent felons as the object of punishment policies,” in comparison to their view of how a White felon in the same position should be treated. [FN328] This tendency to treat Black defendants more harshly has been discussed extensively in the capital-sentencing context, where the stakes are literally matters of life and death. [FN329] Interviews of jurors from capital cases, as part of the comprehensive Capital Jury Project, demonstrated that White jurors in capital cases involving a Black defendant and a White victim relied on racial stereotypes in deciding that death was the appropriate sentence. [FN330] Similarly, Fleury-Steiner's 2004 study “powerfully revealed how racialized cultural stereotypes, particularly about the propensity to do violence, shape White jurors' narratives about minority defendants, their culpability, and ultimately their death-worthiness.” [FN331]
A recent study in the Psychological Science Journal found that: “People associate Black physical traits with criminality in particular. The more stereotypically Black a person's physical traits appear to be, the more criminal that person is perceived to be.” [FN332] Using a database of over 600 “death-eligible” cases, the study demonstrated that in cases in which the death penalty was a possible sentence and where the victim was White, the Black defendants' physical features “function[ed] as a significant *570 determinant of deathworthiness.” [FN333] The study concluded that “defendants whose appearance was perceived as more stereotypically Black were more likely to receive a death sentence than defendants whose appearance was perceived as less stereotypically Black.” [FN334] Thus, in the most serious of cases-those with the ultimate penalty of death-researchers have confirmed that blackness equals such evil and depravity that it warrants the death sentence in the minds of jurors.
Courts typically inform jurors that they are not to let any type of bias or prejudice, which would include racial bias, weigh into their decisions. However, there is currently no way to be sure that jurors do not let race bias, particularly unconscious race bias, play into their decisions. The law presumes that jurors follow courts' instructions without ever questioning whether this is actually the case.
ii. Prosecutors' Misuse of Race as Evidence in Arguments to Jury
Prosecutors recognize the powerful effect that blackness can have on a jury's assessment of character. Unfortunately, prosecutors sometimes use “racial code words” to play on stereotypes and create “images of [B]lack-ill characters.” [FN335] . . .
*571 Rule 609 sanctions this type of racial code, given the deep-rooted Black-as-criminal stereotype. It allows a prosecutor to place the defendant in the “other” category-in much the same way that proponents of the prior conviction impeachment rule intended. “One of the best means for a prosecutor to establish her ethos and to appeal to the jurors' pathos in the context of the criminal trial is to define the defendant as a member of the ‘other.”’ [FN341] In doing so, the prosecutor essentially “draw[s] a line around the defendant, locating both herself and her audience on the same opposite of that line-thereby defining the attorney as a trustworthy member of the jurors' community.” [FN342] Not surprisingly, prosecutors have employed this oratorical method “from the time of Cicero until the present.” [FN343] Jurors will naturally have a negative view of the defendant. Though some appellate courts have reversed trial court judgments resulting from attorneys' arguments appealing to racial bias, in other cases they have simply found such arguments permissible, as the court in Smith did, [FN344] or “harmless error,” as the court in Henderson did. [FN345] Even more troubling is the very real likelihood that appeals to racial bias go completely unnoticed or are simply not subject to objection.
3. A Closer Look at Drug Offenses
It has been argued that “the real racial disparity in treatment exists with respect to nonviolent, victimless crimes, where the discretion of the actors within the criminal justice system is most influential.” [FN346] It is in this area that the decision makers in the criminal justice system have almost unfettered discretion and can “choose which of the many drug users or distributors to arrest.” [FN347] Even those who argue that the overrepresentation of Blacks in prison is due to the higher involvement of Blacks in serious crimes make an exception to their argument for drug offenses. Such an acknowledgment, however, should not be relegated to footnote status. “In the United States and many other nations, it is no longer possible to talk honestly and frankly *572 about racism without talking about the ‘war on drugs.”’ [FN348] And drug offenses have been found to have “a bearing on credibility” for Rule 609 purposes, necessitating the need for a discussion of race and the “war on drugs” as part of the Rule 609 problem. [FN349]
Over the last twenty years, the so-called “war on drugs” has become the “most significant factor contributing to the disproportionate incarceration of [Blacks] in prisons and jails. . . . The escalation of drug prosecutions has coincided with a large-scale law enforcement emphasis on drug policing in communities of color.” [FN350] National statistics show that 33.9% of drug arrests in 2005 were of Blacks even though they represent only fourteen percent of drug users. [FN351] Fifty-three percent of persons sentenced to prison for drug offenses are Black. [FN352]. . .
IV. Proposals for Reform: Remedying the Due Process Problem
In this Part, I analyze the due process problems that the use of unreliable prior convictions create. I then propose that Congress and state legislatures confront the reality of racial bias in the criminal process and eliminate the use of prior convictions to impeach criminal defendants, in light of the current unreliability of the criminal justice system across the country.
. . . Still, unless or until Congress addresses the due process concerns with prior conviction impeachment, judges must intervene in individual cases . . . The burden of establishing admissibility is already on the government-the party seeking to use the prior conviction. In meeting that burden, courts should require the prosecution to demonstrate the reliability of the convictions that they offer for impeachment. The court should consider the race of the defendant and the incarceration rates based on race and any available studies regarding racial bias in the particular jurisdiction from which the conviction was obtained. The court should also consider whether the prior conviction resulted from a plea bargain or was the result of a full-blown trial. If the conviction was the result of a plea bargain, the court should be particularly concerned about reliability. Additionally, the court should consider how the defendant's conviction and his race might work to prejudice him in light of the facts of the case at hand.
. . . [C]ourts already consider various nonexclusive factors in balancing the probative value of prior convictions against their prejudicial effect.475 These factors include the impeachment value of the conviction, the point in time of the conviction and the defendant's subsequent history, the similarity between the prior crime and the current charge, and the centrality of the credibility issue in the case.476 In Gordon, with respect to plea bargaining, then-Justice Burger even noted that “[t]he relevance of prior convictions to credibility may well be different as between a case where the conviction of the accused was by admission of guilt by a plea and on the other hand a case where the accused affirmatively contested the charge and testified . . . .”477 Thus, Burger considered plea-bargaining to be a factor in determining the probative value of prior convictions.478
My proposal would add factors dealing with racial bias in the criminal process to [that factor] analysis. Before admitting the prior conviction against the defendant, the court should be satisfied by a preponderance of the evidence under Rule 104(a), the *587 rule governing preliminary determinations by the court, that the conviction is reliable.479
Footnotes (you don't need to read these, I've just include them in case you're interested.)
1
This Article argues that prior convictions are therefore unreliable hearsay. Though scholars have condemned the prior conviction impeachment rule because of the grave potential that jurors will misuse the convictions as evidence of criminal defendants' guilt, they have merely assumed, without analysis, that prior convictions are inherently reliable. Prior convictions fit the classic definition of hearsay. The rule that provides for their admissibility exists as an exception to the rule against hearsay only because convictions are deemed inherently reliable. The presumption of reliability stems from the fact that the convictions are pronouncements from other courts.
2
[Part III further deconstructs the evidentiary principles underlying Rule 609 and considers the interplay between those evidentiary principles and the racial bias in the criminal justice system. I discuss prior convictions as hearsay, admissible only through Rule 609, which is actually an exception to the rule against hearsay. . . . I argue that, from the perspective of Black criminal defendants and the Black community at large, such hearsay is not reliable.]
11
H. Richard Uviller, Credence, Character, and the Rules of Evidence: Seeing Through the Liar's Tale, 42 Duke L.J. 776, 803-04 (1993).
12
Victor Gold, Impeachment by Conviction Evidence: Judicial Discretion and the Politics of Rule 609, 15 Cardozo L. Rev. 2295, 2295 (1994) ( “No provision of the Federal Rules of Evidence has sparked more controversy than Rule 609 . . . .”); Alan D. Hornstein, Between Rock and a Hard Place: The Right to Testify and Impeachment by Prior Conviction, 42 Vill. L. Rev. 1, 6 (1997) (“The issue [of impeachment through prior convictions] is perhaps one of the most controversial in the law of evidence.”).
13
See, e.g., Teree E. Foster, Rule 609(a) in the Civil Context: A Recommendation for Reform, 57 Fordham L. Rev. 1 (1988); Richard Friedman, Character Impeachment Evidence: Psycho-Bayesian [!?] Analysis and a Proposed Overhaul, 38 UCLA L. Rev. 637 (1991); Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135 (1989); Uviller, supra note 11.
14
Robert D. Dodson, What Went Wrong with Federal Rule of Evidence 609: A Look at How Jurors Really Misuse Prior Conviction Evidence, 48 Drake L. Rev. 1, 3 (1999) (“It is widely accepted that in all likelihood a jury will consider the evidence for improper purposes.”).
15
See id. at 38-40, 41 n.421 (noting that prior records “increase the likelihood of conviction” and that jurors who know about prior convictions are “significantly more likely to convict” a defendant than jurors without such information”).
16
See, e.g., Margaret Meriwether Cordray, Evidence Rule 806 and the Problem of Impeaching the Nontestifying Declarant, 56 Ohio St. L.J. 495, 498-99 (1995) (“Rule 609 of the Federal Rules of Evidence provides one of the most potent, and potentially prejudicial, methods of impeachment. . . . In a criminal case, when the defendant is impeached with his prior convictions, it is widely recognized that the defendant faces a unique, and often devastating, form of prejudice.”).
17
Dodson, supra note 14, at 4 (“Current rules generally allowing prior conviction evidence place a premium on efficiently convicting people.”).
18
See Marie Gottschalk, Dismantling the Carceral State: The Future of Penal Policy Reform, 84 Tex. L. Rev. 1693, 1694 (2006) (noting that “Blacks, who make up less than thirteen percent of the U.S. population, now comprise nearly half of all people in prison”).
19
See, e.g., Joseph E. Kennedy, Monstrous Offenders and the Search for Solidarity Through Modern Punishment, 51 Hastings L.J. 829, 849 n.62 (2000) (asserting that if Delaware's entire population were Black, it could represent the number of Blacks in prison on any given day and citing a study finding that half of the 1.5 million incarcerated persons in the United States are Black); Kevin R. Reitz, American Law Institute, Model Penal Code: Sentencing, Plan for Revision, 6 Buff. Crim. L. Rev. 525, 585 (2002) (estimating that in 2000, “roughly one million [Blacks] were housed in prisons and jails across the country”); Michael Selmi, Getting Beyond Affirmative Action: Thinking About Racial Inequality in the Twenty-First Century, 55 Stan. L. Rev. 1013, 1039 (2002) (noting that Black men alone make up almost half of the two million people who are incarcerated in the United States); Monroe Anderson, War on Drugs Kills Blacks, Op-Ed., Chi. Sun-Times, May 27, 2007, at B7 (“Right now, there are more than 1 million [Black] men in prison . . . .”).
20
Imani Perry, Post-Intent Racism: A New Framework for an Old Problem, 19 Nat'l Black L.J. 113, 133 (2007).
21
Kevin R. Johnson, Taking the “Garbage” Out in Tulia, Texas: The Taboo on Black-White Romance and Racial Profiling in the “War on Drugs”, 2007 Wis. L. Rev. 283, 306 (2007) (“Even though the available statistical data suggests that [W]hites, [B]lacks, Latinos, and Asian Americans use illicit drugs at roughly comparable rates, the war on drugs has had a devastating impact on minority communities.”).
22
See Note, For the Good of the Child, For the Good of Society: Using Scotland and Jamaica as Models to Reform U.S. Juvenile Justice Policy, 115 Harv. L. Rev. 1964, 1968 (2002) (discussing prosecutorial bias as a potential source of racial bias in the criminal justice system).
23
See infra Part III.C.
24
David Cole, What's Criminology Got to Do with It?, 48 Stan. L. Rev. 1605, 1618 (1996) (citing and discussing a Georgia case study where prosecutors “sought life sentences over 16 times more often for [B]lack repeat offenders than for [W]hite repeat offenders”); Craig Haney, Condemning the Other in Death Penalty Trials: Biographical Racism, Structural Mitigation, and the Empathic Divide, 53 DePaul L. Rev. 1557, 1575 (2004) (noting that “three strikes”-type laws contribute to the disproportionate numbers of Blacks incarcerated); Ronald K. Noble, Between Complicity and Contempt: Racial Presumptions of the American Legal Process, 72 N.Y.U. L. Rev. 664, 679 n.106 (1997) (citing findings of disparate punishment for Black “repeat offenders” in comparison with Whites in the context of drug offenses); Note, Judicial Approaches to Direct Democracy, 118 Harv. L. Rev. 2748, 2768 (2005) (raising the possibility that “a three strikes criminal sentencing scheme . . . may embody animus toward minority groups”).
. . .
34
Id.
35
Id. at 850.
36
See Michelson v. United States, 335 U.S. 469, 475-76 (1948).
37
Id. at 476.
38
Martin Luther King, Jr., I Have a Dream 3 (Aug. 28, 1963), available at http://www.stanford.edu/group/King/publications/speeches/address_at_march_ on_washington.pdf.
39
Merriam-Webster Online, http://www.merriam-webster.com/dictionary/judge.
. . . .
83
Id. at 662.
84
Id. at 624-25.
85
See id. at 671-97 (discussing the rules excluding testimony from all Black witnesses and the ultimate abandonment of those rules); see also Katherine Hunt Federle, Children, Curfews, and the Constitution, 73 Wash. U. L.Q. 1315, 1341-42 (1995) (noting that under the slave codes, Blacks could not testify against Whites); James Forman, Jr., Juries and Race in the Nineteenth Century, 113 Yale L.J. 895, 911 (2004) (discussing the congressional debate after the Civil War over whether Blacks should be permitted to testify); A. Leon Higginbotham, Jr. & Anne F. Jacobs, The Law Only as an Enemy, The Legitimization of Racial Powerlessness Through the Colonial and Antebellum Criminal Laws of Virginia, 70 N.C. L. Rev. 969, 993 (1992) (“[P]erhaps one of the most basic procedural deprivations that [B]lacks, enslaved and free, suffered was their preclusion from testifying against [W]hites and, during certain periods, from testifying against other [B]lacks, mulattoes, and Indians.”).
86
See Fisher, supra note 76, at 659-71.
87
See, e.g., Commonwealth v. Bonner, 97 Mass. 587, 589 (1867) (finding that criminal defendants were not “exempt” from “impeachment as a witness” and that there was “no reason why [they] should be”).
88
Fed. R. Evid. 404.
89
Id.
90
Fed. R. Evid. 404(a)(3) (recognizing Rule 609 as an exception to the general ban on character-propensity evidence).
91
Fed. R. Evid. 609.
. . .
97
Gold, supra note 12, at 2298.
98
Id.
99
Fed. R. Evid. 609.
100
Id.
101
Fed. R. Evid. 403, 609.
102
Fed. R. Evid. 403.
103
See id.
104
Fed. R. Evid. 609.
105
Roger C. Park, Daubert on a Tilted Playing Field, 33 Seton Hall L. Rev. 1113, 1119 (2003) (“In effect, [Rule 609] tells judges to give more protection to criminal defendants than to other witnesses in balancing prejudice against probative value.”); Chris William Sanchirico, Character Evidence and the Object of Trial, 101 Colum. L. Rev. 1227, 1282-83 n.134 (2001) (“At least as written, this test [under Rule 609] leans more toward inadmissibility when the current action is a criminal prosecution and the witness is the accused.”); Donald H. Zeigler, The Confusing Relationship Between Rules 608(b) and Rule 609 of the Federal Rules of Evidence, 46 N.Y.L. Sch. L. Rev. 527, 530 (2003) (“Rule 609 . . . makes it more difficult to impeach an accused than to impeach other witnesses with a conviction.”).
106
Zeigler, supra note 105, at 531.
107
Id.
108
See, e.g., R. Kent Greenawalt, Silence as a Moral and Constitutional Right, 23 Wm. & Mary L. Rev. 15, 45 (1981) (noting that there are various aspects of our criminal justice system that “threaten convictions of the innocent,” including the “routine introduction of prior convictions to impeach defendants”).
109
Uviller, supra note 11, at 807 n.69.
110
Fed. R. Evid. 609; see also McCormick on Evidence § 42, at 63 (John W. Strong ed., 5th ed. 1999) (noting that “[c]rimes involving ‘dishonesty or false statement,’ regardless of the punishment or against whom used, do not require balancing of probative value against prejudice; under 609(a)(2), they are automatically admissible”).
111
Fed. R. Evid. 609(b).
112
Fed. R. Evid. 609(d).
113
Id.
114
Gold, supra note 12, at 2325.
115
See Dodson, supra note 14, at 4-5.
116
Id. at 3.
117
Theodore Eisenberg & Valerie P Hans, Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and on Trial Outcomes 94 Cornell L. Rev. (forthcoming Sept. 2009) (manuscript at 32), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=998529. For commentary discussing the widespread suspicion regarding juror misuse of prior convictions admitted for impeachment, see Cordray, supra note 16, at 506-07, which states:
The danger, and therefore the risk of prejudice, lies in the difficulty of making th[e] distinction [between using evidence of prior convictions for assessing the credibility of the criminal defendant and using this evidence to prove act propensity]. It is widely agreed that a jury is unlikely to maintain the distinction, even with the help of a limiting instruction . . . . [D]espite any limiting instruction the judge might give, there is a significant risk that the jury will use the evidence of prior crimes in its determination of guilt.
Id.
118
United States v. Biswell, 700 F.2d 1310, 1319 (10th Cir. 1983) (internal quotations omitted).
119
United States v. Gilliland, 586 F.2d 1384, 1389-90 (1978) (quoting United States v. Burkhart, 458 F.2d 201, 204-05 (10th Cir. 1972)); see also McCormick on Evidence, supra note 110, § 42, at 65 (noting the “obvious danger” that a jury will misuse a prior conviction as evidence of the defendant's guilt).
120
Ed E. Gainor, Character Evidence by Any Other Name . . . : A Proposal to Limit Impeachment by Prior Conviction Under Rule 609, 58 Geo. Wash. L. Rev. 762, 762-63 (1990) (“There is nothing new about the observation that allowing impeachment by prior conviction places a defendant who has previously been convicted of a crime at a serious disadvantage in a criminal trial. Courts and commentators were in general agreement on this point before the adoption of the Federal Rules of Evidence.”).
121
Pennsylvania Suggested Standard Criminal Jury Instructions, § 3.09Criminal Jury Instructions, § 3.09 (2005) (brackets in original omitted).
122
See, e.g., People v. Hinton, 126 P.3d 981, 1006 (Cal. 2006) (“We presume the jury followed the court's instructions.”).
123
E.g., Darryl K. Brown, Plain Meaning, Practical Reason, and Culpability: Toward a Theory of Jury Interpretation of Criminal Statutes, 96 Mich. L. Rev. 1199, 1231 (1998); Nancy S. Marder, Bringing Jury Instructions Into the Twenty-First Century, 81 Notre Dame L. Rev. 449, 454-58 (2006); Paul H. Robinson, Are Criminal Codes Irrelevant?, 68 S. Cal. L. Rev. 159, 170 (1994); Rodney Uphoff, Convicting the Innocent: Aberration or Systemic Problem?, 2006 Wis. L. Rev. 739, 790-91 (2006).
124
Uphoff, supra note 123, at 790.
125
See Cordray, supra note 16, at 507.
126
Uviller, supra note 11, at 813.
127
Id.
128
Id.
129
See Hornstein, supra note 12, at 46-61.
130
Gold, supra note 12, at 2297.
131
Id. at 2298.
. . .
176
Stephen J. Fortunato, Judges, Racism, and the Problem of Actual Innocence, 57 Me. L. Rev. 481, 505 (2005).
177
See supra Part I.B.
178
See supra Part I.B.
179
See supra text accompanying note 176.
180
Natapoff, supra note 150, at 1462 (citing U.S. Dep't of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 416 tbl.5.17, 448 tbl.5.46 (2002), available at http:// www.albany.edu/sourcebook/archive.html).
181
George Fisher, Plea Bargaining's Triumph: A History of Plea Bargaining in America 107 (2003).
182
Id. at 109.
183
Id.
184
Deborah S. Emmelman, Justice for the Poor: A Study of Criminal Defense Work 41 (2003).
185
John H. Blume, Sheri L. Johnson & Emily C. Paavola, Every Juror Wants a Story: Narrative Relevance, Third Party Guilt and the Right to Present a Defense, 44 Am. Crim. L. Rev. 1069, 1087-91 (2007).
186
See id. (“It is now widely accepted, and empirical research demonstrates, that narrative plays an important role throughout the entire trial process. . . . [J]urors organize and interpret trial evidence as they receive it by placing it into a story format . . . .”).
187
Id. at 1089.
188
See id.
189
Id. at 1091.
190
See Natapoff, supra note 150, at 1461 (noting that Rules 609 and 404(b) of the Federal Rules of Evidence “threaten the defendant's ability to be heard by the jury. Past crimes and bad acts impair credibility, and make the defendant a less believable storyteller”).
191
Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984) (citations omitted)).
192
See Natapoff, supra note 150, at 1462 (explaining that prior criminal histories work to silence defendants who choose to “keep quiet” rather than subject themselves to the prejudice associated with their prior convictions).
193
See id. at 1449-57.
194
John H. Blume, The Dilemma of the Criminal Defendant with a Prior Record-Lessons from the Wrongfully Convicted 1, 3-4, 15-20 (Cornell Law Sch. Legal Studies Research Paper Series, Paper No. 07-017, 2007), available at http://lsr.nellco.org/cornell/lsrp/papers/83/.
195
Id. at 3.
196
Id. at 3-4.
197
Id. at 4 (emphasis added).
. . .
313
See Ross, supra note 64, at 262.
314
Id. at 229.
315
See id.
316
See id. at 261.
317
Id. at 263.
318
Lynch, supra note 69, at 189.
319
Johnson, supra note 241, at 951.
320
Id.
321
Id.
322
Lynch, supra note 69, at 189.
323
Cynthia K.Y. Lee, Race and Self-Defense: Toward a Normative Conception of Reasonableness, 81 Minn. L. Rev. 367, 408-21 (1996).
324
Id. at 408 (emphasis added).
325
Id. at 403.
326
Id.
327
Id. at 404-05.
328
Lynch, supra note 69, at 188.
329
See id.
330
Id.
331
Id.
332
Jennifer L. Eberhardt, Paul G. Davies, Valerie J. Purdie-Vaughns & Sheri Lynn Johnson, Looking Deathworthy, Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes, 17 Psychol. Sci. 383, 383 (2006).
333
Id. at 383-84.
334
Id. at 384.
335
Andrew E. Taslitz, Wrongly Accused: Is Race a Factor in Convicting the Innocent?, 4 Ohio St. J. Crim. L. 121, 133 (2006).
336
516 N.E.2d 1055, 1064 (Ind. 1987).
337
Id.
338
See Ryan P. Alford, Appellate Review of Racist Summations: Redeeming the Promise of Searching Analysis, 11 Mich. J. Race & L. 325, 334-35 (2006).
339
620 N.W.2d 688 (Minn. 2001).
340
Id. at 702 (alteration in original).
341
Alford, supra note 338, at 334-35 (emphasis in original).
342
Id. at 335.
343
Id.
344
Smith v. State, 516 N.E.2d 1055, 1063-65 (Ind. 1987).
345
620 N.W.2d at 703 (expressing “concern” over the arguments, but finding that it was not so inexcusably serious and prejudicial that Henderson's right to a fair trial was denied); see also People v. Bahoda, 531 N.W.2d 659, 662-65 (Mich. 1995) (finding that the prosecution made “several references” to defendant's “Arabic ethnicity” at a trial that took place during the Persian Gulf War, but determining such references “to be innocuous, unintended and not of a degree that prejudiced defendant's right to a fair trial”).
346
Daniel S. Goldman, Note, The Modern Day Literacy Test? Felon Disenfranchisement and Race Discrimination, 57 Stan. L. Rev. 611, 629 (2004).
347
Id.; see also R. Richard Banks, Beyond Profiling: Race, Policing, and the Drug War, 56 Stan. L. Rev. 571, 578 (noting that “drug law enforcement is highly discretionary,” that “rates of arrest and conviction reflect investigation and enforcement decisions as much as underlying rates of criminality,” and that “[t]he self-fulfilling prophecy argument reminds us that the outcomes often offered as the justification for racial profiling may, in fact, be the consequence of racial profiling, which can create the appearance of racial differences in criminality even when there are none”).
348
Drug Policy Alliance Network, The Racial History of U.S. Drug Prohibition (2001), http://www.drugpolicy.org/about/position/race_paper_ history.cfm.
349
United States v. Barrow, 448 F.3d 37, 44 (1st Cir. 2006).
350
Mauer, supra note 174, at 25-26.
351
Id. at 26.
352
Id.
. . .
3.4.2 Excerpts from Conviction By Prior Impeachment 3.4.2 Excerpts from Conviction By Prior Impeachment
by Anna Roberts, 96 B.U. L. Rev. 1977 (2016)
This excerpt describes and critiques some of the assumptions that undergird Rule 609. (The full article is available here.)
[omitted]
II. THREE DIMENSIONS OF CRITIQUE
This Part explores three critiques of the practice of impeaching criminal defendants with their prior convictions. Section II.A explores the flawed assumptions on which the impeachment of criminal defendants rests, Section II.B the consequences in individual trials, and Section II.C the role that this practice plays in some of the criminal justice system’s deepest dysfunctions. Section II.D suggests that in order to reform prior conviction impeachment one must try to understand why the practice--for all its flaws--remains in such broad use.
A. Flawed Assumptions
Courts, commentators, and rules drafters have proffered justifications for the impeachment of criminal defendants with their convictions, asserting--as they must--not only that prior conviction impeachment is relevant to the issue of the defendant’s credibility, but also that its probative value on this issue outweighs its prejudicial effect. In the federal system and in those states that follow the Federal Rules of Evidence in allowing the use of both felonies and crimina falsi, justifications have been proffered to address both categories of convictions. The justifications rest not on data but on what one might call “junk science at its worst,”104 or, more charitably, a series of assumptions.105 When one unpacks the assumptions, one finds that they are belied by data.
Starting with probative value, the notion that a prior conviction is useful to fact finders on the issue of whether a defendant is testifying truthfully relies on the following series of assumptions: first, that the defendant committed the crime of which she was convicted; second, that those without such a conviction have not committed the crime in question;106 third, that the conviction was the product *1993 of a particular character trait--such as, in the case of a felony, knowing violation of serious legal norms; fourth, that the defendant possesses that character trait now, just as he or she had it then; fifth, that the character trait helps to predict the likelihood that he or she will lie while on the stand; and sixth, that the evidence provided to the jury will help them assess this likelihood.
Each of these assumptions is vulnerable to critique.107 First, in an age of wrongful convictions,108 and mass production of convictions,109 it cannot be taken as a given that a conviction correlates to commission of the crime.110 The old assumptions of commentators--that there can be no serious doubt that a conviction corresponds to guilt111--need to be rethought. This is true with trials.112 It is also true with plea bargains:113 sixteen percent of the convictions *1994 included in the National Registry of Exonerations were the result of a guilty plea,114 and the fact that guilty pleas need not be tied to actual commission of the crime is further demonstrated by the fact that it is possible to plead guilty to a nonexistent crime.115 During many plea proceedings, the one thing established with any certainty is that the defendant admitted his guilt, which means that at the subsequent trial the government is attempting to establish his untruthfulness by relying on his purportedly true statement.116
Second, the assumption that a conviction conveys not only culpability but also relative culpability--guilt in contrast to the innocence of those who do not have a conviction117--is also vulnerable to critique, given the selective doling out of *1995 arrests,118 charges,119 convictions,120 felony convictions,121 and expungements.122
Third, if there were days when a felony conviction necessarily conveyed a knowing violation of serious legal norms, those days are over.123 Even where convictions do correspond to law breaking, a felony conviction can be garnered without a knowing violation of serious legal norms.124 The family of strict liability offenses is growing, and even includes some felonies.125 Thus, convictions can occur in the absence of any culpable mental state.126 In addition, mistake of law is typically no defense.127 Thus, convictions can occur in the absence of any understanding that the law is being broken.128
*1996 Fourth, the “trait theory” of behavior129--the theory that traits such as a “character for truthfulness” determine how we act130-- has largely been supplanted.131 Psychologists no longer believe that lasting traits such as “truthfulness” exist;132 rather, situations and interactions are thought to play an important role in shaping behavior,133 and an act of dishonesty would be useful in predicting a second act of dishonesty only if all the surrounding facts and circumstances were identical134--which rarely, if ever, happens.135
Fifth, even if one did believe that we each have lasting traits that predispose us to particular behaviors, in the context of witness testimony scholars have identified other factors as far more important in determining who is truthful: in particular, what the stakes are, and what the chances seem to be that a lie will be detected.136
*1997 Finally, even if one thought that a conviction could potentially offer useful information to jurors about whether to believe the defendant, the information that they are typically offered fails to give them any meaningful guidance. They may be told, for example, that a defendant has a felony conviction for a particular named crime, and that he or she received a particular sentence. The name of the crime may reveal nothing about the details of what actually occurred.137 The sentence may be the product of randomness,138 or of poverty.139 And the word “felony,” through its prejudicial effect, may prevent the jury from hearing anything else.140 In addition, the jury already has every reason to suspect that a defendant faced with the loss of liberty and perhaps life might shape his or her testimony in order to maximize the possibility of acquittal.141 Given this shadow over defendants’ credibility, it remains uncertain what marginal probative value this form of impeachment could bring.142
In addition to these multiple flawed assumptions about probative value, the rule also rests on a mistaken assumption about cabining prejudicial effect. No one appears to doubt that this evidence threatens to impose unfair prejudice.143 Acknowledged risks include its use as improper propensity evidence;144 its use to support the notion that the defendant is a “bad” person who must be punished;145 its use inappropriately to undermine the defense evidence or to *1998 strengthen that of the prosecution;146 and its use to assuage worry about the jury’s verdict or the burden of proof because it is not as if an innocent person will be imprisoned.147 The practice has been allowed to continue, however, on the basis of an assumption that the prejudice can be kept to acceptable levels through a judicial instruction.148 The instruction tells the jury to consider the evidence only on the issue of credibility,149 and--with the notable exception of a confession by one defendant that implicates another150--the Supreme Court has assumed that jurors will comply with judicial instructions to use evidence only for a particular purpose.151 Yet this assumption has been thoroughly undermined.152 There is no empirical support for the idea that jurors are more able to partition their brains in the case of convictions than in the case of confessions.153 Even if they understood such an instruction, and were able to follow it, they might not wish to.154 Rather, even when given this instruction, *1999 jurors tend to use the evidence to conclude that the defendant is a bad person and therefore more likely than not to be guilty as charged.155 Indeed, the instruction may heighten the level of prejudice.156Courts, rules drafters, and commentators also reason that impeachment by prior conviction is a necessary tool for the prosecution because if a defendant with a criminal record testifies in the absence of this form of impeachment, the jury will be misled into thinking that the defendant is blameless,157 blemish-free,158 or as trustworthy as a “Mother Superior.”159 This justification has done an enormous amount of work for the prosecution.160 It has been used to justify the admission of some convictions rather than none, on the theory that silence would suggest innocence.161 But sometimes the goalposts shift, so that the rule is used to justify the admission of not just a few, but more than a few convictions. Thus in cases where courts of appeal “approved the admission of 6 prior convictions (3 for the same offense as the one charged) and 5 prior convictions all for the same offense as that charged,”162 the courts conceded that these numbers hinted at “prosecutorial overkill” and violations of due process,163 but, as one brief explains, they “ultimately approved the admission of the large numbers in those cases in order to insure that the jury would not wrongly infer that the defendant had suffered only one or two momentary lapses into felonious behavior, and thereby profit from a ‘false aura of veracity.”’164
*2000 Support for the notion that defendants are accorded these heavenly attributes is absent; the science suggests that all relevant assumptions run in the opposite direction.165 Those who are poor, or people of color, or criminally accused are all the targets of assumptions of guilt166--heaven help those who are all three. In any event, the prosecution has at its disposal numerous methods for attacking a defendant’s credibility that do not involve the use of convictions:167 it can impeach based on the defendant’s interest in the case,168 it can argue that this interest makes him an untrustworthy witness,169 and, if defendants falsely deny having a prior record, it can impeach them through contradiction.170 More broadly, the prosecution has the power to cross-examine--a power described as “the greatest legal engine ever invented for the discovery of truth.”171 The prosecution also has the power to rebut defendant testimony,172 a power aided by its investigative resources.173 In addition, the judge may instruct jurors that a testifying defendant has a deep interest in the case that creates a motive for false testimony:174 such an instruction informs jurors that they should treat the *2001 defendant’s testimony differently, and with more skepticism, than other kinds of witnesses.175 Because a motive for false testimony suggests that the truth would condemn, this instruction may make conviction more likely by implying the defendant’s guilt.176
Also underlying this practice is an assumption that trial judges are equipped to make all the decisions necessary in order to administer the prior conviction impeachment rules: that, where necessary, they can apply a nonexclusive five-factor test in order to weigh probative value against prejudicial effect;177 and, where necessary, they can decide whether a conviction falls within the crimen falsi category; and they can decide whether a conviction was flawed in a way that makes its use for impeachment purposes unlawful.178 Each of these projects has been criticized as either per se unworkable, or unworkable within the time appropriately spent on this kind of “side trial.”179
3.4.3 Excerpt from Reclaiming the Importance of the Defendant's Testimony: Prior Conviction Impeachment and the Fight against Implicit Stereotyping 3.4.3 Excerpt from Reclaiming the Importance of the Defendant's Testimony: Prior Conviction Impeachment and the Fight against Implicit Stereotyping
by Anna Roberts, 83 U. Chi. L. Rev. 835 (2016)
This excerpt describes how courts (and lawyers) have been misinterpreting the fourth factor, and proposes an approach to the factor that could be used to fight implicit racial bias.
A recent study of DNA exonerees revealed that, despite their factual innocence, 91 percent of those with prior convictions waived their right to testify at trial.1 The most common reason given by their counsel was the fear of the impact of impeachment *837 by prior conviction.2 That fear was justified. First, in every case in which one of the exonerees with a criminal record did testify, the trial court permitted this type of impeachment;3 second, allowing the jury to learn of a defendant's criminal record increases the rate of conviction by as much as 27 percent.4 A regime in which stories of innocence are kept from the fact finder by a well-supported fear that they will be drowned out through prior conviction impeachment is one that needs scrutiny.
Comparing early opinions on whether impeachment should be permitted with opinions that postdate the Federal Rules of Evidence (FRE) reveals that in many instances an important opportunity for defendants -- and fact finders -- has been lost. The restoration of this opportunity offers the potential to combat one of the most significant threats to courtroom fairness: implicit racial stereotyping.
The early case law emphasized that a paramount consideration in determining whether to permit prior conviction impeachment was whether the defendant would be chilled from testifying.5 Even if prior conviction evidence was probative of the defendant's credibility, and even if the probative value outweighed the prejudice, the risk that defendants might be deterred from testifying weighed heavily against permitting impeachment.6
The case law that followed the enactment of the FRE ostensibly preserved these early themes. “The importance of the defendant's testimony” is one factor in the multifactor test that most circuits and many states use in conducting the probative/prejudicial balancing test that the relevant rule of evidence requires.7 Yet federal and state judges often ignore this factor or treat it as if it were of little worth.8 Most strikingly, in many instances, judges *838 invert its root sense: whereas originally the importance of the defendant's testimony militated against permitting impeachment -- under the theory that important testimony must be heard -- now it often justifies impeachment, under the theory that important testimony must not go unchallenged.9
The effect of this and other trends in impeachment law has been to make the granting of motions to impeach by prior conviction the default.10 As shown by the exoneree research, the implications are troubling. When defendants waive their right to testify because of the fear of impeachment, important information is kept from the fact finder -- information that may establish innocence and that may help build a richer factual context for the fact finder's decisionmaking.
Research into implicit stereotyping and its amelioration shows why the collapse of the “importance of the defendant's testimony” factor is particularly significant. Implicit racial stereotyping constitutes one of the most significant, and intractable, threats to courtroom fairness. Those accused of crimes are disproportionately people of color,11 and people of color are frequently targets of implicit racial stereotyping.12 Those put on trial have the right to the presumption of innocence;13 implicit racial stereotyping by fact finders threatens that presumption, because when defendants are African American, unconscious associations are invoked between their race and concepts such as violence, weaponry, hostility, aggression, immorality,14 and -- most damning of all -- criminal guilt.15 And yet, as research into implicit stereotyping expands from demonstrating the breadth of the phenomenon to exploring solutions,16 some hope emerges. Research in the area of social cognition indicates that when fact finders hear from a member of a stereotyped group, and particularly when they hear information that individuates -- or paints a unique picture of -- that person, they are more likely to be able to *839 form judgments about that individual that are based on the evidence rather than on stereotypes.17
Forging new connections between impeachment law and the science of implicit stereotyping, this Article proposes that attorneys reclaim the “importance of the defendant's testimony” factor as a vehicle for innovative defense arguments. When defendants are the targets of stereotypes that threaten the presumption of innocence or the right to a fair trial, those arguments could include the need to preclude prior conviction impeachment because it is vitally important for the fact finder to hear individuating testimony. This would serve not only to bring sense back into the multifactor test and to restore a key strand of case law underlying the rule but also to resist the trend toward the automatic admission of impeachment evidence and the resulting silencing of defendants.
. . .
The text of FRE 609 gives no guidance to courts with respect to how they should conduct the required balancing test when they assess whether felony convictions should be admitted as impeachment evidence; it gives no guidance, in other words, on how courts should decide whether “the probative value of the evidence outweighs its prejudicial effect to [the] defendant.”31 However, the great majority of federal appellate courts, as well as many states, have developed versions of a multifactor test.32
. . .
While the factor termed “the importance of the defendant's testimony” originated in the discussions in Luck and Gordon of how vital it was to ensure that the threat of impeachment not chill defendant testimony” . . . [but courts] . . . typically fail to acknowledge -- much less honor -- the roots of this factor as a protection for the defendant, and indeed as an opportunity for the defense to prevent this kind of impeachment, no matter the result of the balancing test. In many instances, the meaning of this factor has been inverted so that courts take the importance of the defendant's testimony as a reason to permit, rather than prohibit, impeachment. As this Section shows, not only courts -- federal and state -- but also defense attorneys and commentators have distorted or neglected the root meaning of this factor.
. . .
One of the dangers of silencing defendant testimony is that when defendants remain silent, implicit -- or unconscious159 -- stereotypes on the part of the fact finders may spring up to fill the silence. It does not appear to be the case, in other words, that when faced with a defendant who exercises his or her right not to testify, jurors reserve judgment and hold fast to the presumption of innocence while they await the remaining evidence. Rather, their minds seethe with premature assumptions that, in the absence of defendant testimony, the defense may have little chance to dispel.
. . .
The implicit stereotypes targeted at African Americans are particularly troubling because they threaten to compound existing racial disparities within the criminal-justice system. It is of course no coincidence that the population whose rate of criminalization is most grossly inflated -- African Americans192 -- is also the population against whom the implicit stereotypes most threatening to the presumption of innocence are directed. The same historical and contemporary disparities underlie both phenomena.193 But compounded injustices result: First, as commentators have noted, merely existing as an African American may mean being *866 deprived of the protection of the layperson's presumption of innocence and instead being viewed as if on some kind of probation.194 In other words, assumptions of guilt may well have led to the courtroom presence of a disproportionate number of people of color.195 Second, layered on that disparity is a phenomenon that occurs once inside the courtroom: the implicit stereotypes of the fact finders threaten the courtroom presumption of innocence.196 Third, while criminal defendants are disproportionately people of color,197 juries and judges are disproportionately white,198 and a great deal of implicit bias involves bias against “out-groups”199 -- that is, groups that are not one's own.200 Thus the common defendant-fact finder pairing of black-white creates particularly fertile ground *867 for the operation of implicit stereotypes201 and forms a third layer of unfairness.202
Implicit biases are not harmless mental quirks. Rather, they affect the key tasks that we rely on fact finders to perform: evaluation of evidence;203 recall of facts;204 and the forming of decisions and judgments,205 including judgments of guilt.206 In addition, stereotypes can affect whether one can envision an individual (such as a defendant) engaging in certain behavior.207 *868
. . .
III. THE IMPORTANCE OF THE DEFENDANT'S TESTIMONY AS A WAY TO COMBAT IMPLICIT STEREOTYPING
. . .
Individuation is a strategy that “relies on preventing stereotypic inferences by obtaining specific information about group members.”244 A variety of studies have suggested that individuating information, such as information about an individual's background,245 can reduce the influence of stereotypes on the formation of impressions.246
. . .
individuation research has included studies of individuals engaged in the same basic task that defendants perform on the stand: talking about themselves and their experiences.249 For example, in one study, researchers assessed the extent to which African American stereotypes held by one group of study participants had been brought to mind -- or “activated” -- after just fifteen seconds of exposure to an African American student.250 The other group of study participants listened to the African American student talk about her experiences for twelve minutes before their levels of stereotype activation were assessed.251 Stereotypes had been activated after just fifteen seconds, but after twelve minutes there was no evidence of stereotype activation.252 As the study's authors described their results, “[t]he initially activated stereotype had dissipated over time.”253 In another study, participants read a five-page transcript of a telephone conversation in which the stereotyped individual described his or her experiences and actions in three situations.254 Having read the conversation, the study participants relied on the details about the individual's behavior in evaluating his or her traits, rather than on stereotypes.255
. . .
This Article therefore proposes that the “importance of the defendant's testimony” factor be reclaimed by the defense, and be taken seriously by the judiciary, as a vehicle for arguments that have the potential to tackle one of our most pressing courthouse problems. Specifically, this Article proposes that defense attorneys make creative use of the opportunity to explain that implicit stereotyping threatens the presumption of innocence, as well as the accurate determination of the truth.274 It proposes that in determining . . . whether permitting impeachment might chill defendant testimony, courts should consider the possibility that defendant testimony would offer the kind of individuating information that has the potential to combat stereotyping, and courts should weigh this possibility as a factor militating against allowing impeachment.
Comprehension Questions Set 8 Comprehension Questions Set 8
3.4.4 OPTIONAL for Class 8 3.4.4 OPTIONAL for Class 8
3.4.4.1 OPTIONAL: Excerpts from Rule 609 Advisory Committee Notes 3.4.4.1 OPTIONAL: Excerpts from Rule 609 Advisory Committee Notes
These can be helpful, particularly for understanding Rule 609(a)(2).
Notes of Advisory Committee on Rules—1990 Amendment
. . . the rule recognizes that, in virtually every case in which prior convictions are used to impeach the testifying defendant, the defendant faces a unique risk of prejudice— i.e., the danger that convictions that would be excluded under Fed.R.Evid. 404 will be misused by a jury as propensity evidence despite their introduction solely for impeachment purposes. Although the rule does not forbid all use of convictions to impeach a defendant, it requires that the government show that the probative value of convictions as impeachment evidence outweighs their prejudicial effect.
. . .
The amendment also protects other litigants from unfair impeachment of their witnesses. The danger of prejudice from the use of prior convictions is not confined to criminal defendants. Although the danger that prior convictions will be misused as character evidence is particularly acute when the defendant is impeached, the danger exists in other situations as well. The amendment reflects the view that it is desirable to protect all litigants from the unfair use of prior convictions, and that the ordinary balancing test of Rule 403, which provides that evidence shall not be excluded unless its prejudicial effect substantially outweighs its probative value, is appropriate for assessing the admissibility of prior convictions for impeachment of any witness other than a criminal defendant.
. . .
Committee Notes on Rules—2006 Amendment
The amendment provides that Rule 609(a)(2) mandates the admission of evidence of a conviction only when the conviction required the proof of (or in the case of a guilty plea, the admission of) an act of dishonesty or false statement. Evidence of all other convictions is inadmissible under this subsection, irrespective of whether the witness exhibited dishonesty or made a false statement in the process of the commission of the crime of conviction. Thus, evidence that a witness was convicted for a crime of violence, such as murder, is not admissible under Rule 609(a)(2), even if the witness acted deceitfully in the course of committing the crime.
The amendment is meant to give effect to the legislative intent to limit the convictions that are to be automatically admitted under subdivision (a)(2). The Conference Committee provided that by “dishonesty and false statement” it meant “crimes such as perjury, subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the [witness's] propensity to testify truthfully.” Historically, offenses classified as crimina falsi have included only those crimes in which the ultimate criminal act was itself an act of deceit. See Green, Deceit and the Classification of Crimes: Federal Rule of Evidence 609 (a)(2) and the Origins of Crimen Falsi, 90 J. Crim. L. & Criminology 1087 (2000).
Evidence of crimes in the nature of crimina falsi must be admitted under Rule 609(a)(2), regardless of how such crimes are specifically charged. For example, evidence that a witness was convicted of making a false claim to a federal agent is admissible under this subdivision regardless of whether the crime was charged under a section that expressly references deceit (e.g., 18 U.S.C. §1001, Material Misrepresentation to the Federal Government) or a section that does not (e.g., 18 U.S.C. §1503, Obstruction of Justice).
The amendment requires that the proponent have ready proof that the conviction required the factfinder to find, or the defendant to admit, an act of dishonesty or false statement. Ordinarily, the statutory elements of the crime will indicate whether it is one of dishonesty or false statement. Where the deceitful nature of the crime is not apparent from the statute and the face of the judgment—as, for example, where the conviction simply records a finding of guilt for a statutory offense that does not reference deceit expressly—a proponent may offer information such as an indictment, a statement of admitted facts, or jury instructions to show that the factfinder had to find, or the defendant had to admit, an act of dishonesty or false statement in order for the witness to have been convicted. Cf. Taylor v. United States, 495 U.S. 575, 602 (1990) (providing that a trial court may look to a charging instrument or jury instructions to ascertain the nature of a prior offense where the statute is insufficiently clear on its face); Shepard v. United States, 125 S.Ct. 1254 (2005) (the inquiry to determine whether a guilty plea to a crime defined by a nongeneric statute necessarily admitted elements of the generic offense was limited to the charging document's terms, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or a comparable judicial record). But the amendment does not contemplate a “mini-trial” in which the court plumbs the record of the previous proceeding to determine whether the crime was in the nature of crimen falsi.
The amendment also substitutes the term “character for truthfulness” for the term “credibility” in the first sentence of the Rule. The limitations of Rule 609 are not applicable if a conviction is admitted for a purpose other than to prove the witness's character for untruthfulness. See, e.g., United States v. Lopez, 979 F.2d 1024 (5th Cir. 1992) (Rule 609 was not applicable where the conviction was offered for purposes of contradiction). The use of the term “credibility” in subdivision (d) is retained, however, as that subdivision is intended to govern the use of a juvenile adjudication for any type of impeachment.
3.4.4.2. OPTIONAL: Ex-SAC Trader Was Expelled From Harvard Law School - The New York Times
This article describes the question of whether a prior bad act (falsifying your law school transcript!!!) can be used to impeach you at trial.
3.4.4.3 OPTIONAL : TAKING A STAND ON TAKING THE STAND: THE EFFECT OF A PRIOR CRIMINAL RECORD ON THE DECISION TO TESTIFY AND ON TRIAL OUTCOMES 3.4.4.3 OPTIONAL : TAKING A STAND ON TAKING THE STAND: THE EFFECT OF A PRIOR CRIMINAL RECORD ON THE DECISION TO TESTIFY AND ON TRIAL OUTCOMES
Theodore Eisenberg & Valerie P. Hans, 94 Cornell L. Rev. 1353 (2009)
. . .
To summarize *1357 our findings, 60% of defendants without criminal records testified, compared to 45% with criminal records. For testifying defendants with criminal records, juries learned of those records in about half the cases. Juries rarely learned about criminal records unless defendants testified.
Statistically significant associations exist (1) between the existence of a criminal record and the decision to testify at trial, (2) between the defendant's testifying at trial and the jury's learning about the defendant's prior record, and (3), in cases with weak evidence, between the jury's learning of a criminal record and conviction.
For cases with strong evidence against defendants, learning of criminal records is not associated with conviction rates. Juries appear to rely on criminal records to convict when other evidence in the case normally would not support conviction. The effect in otherwise weak cases is substantial and can increase the probability of conviction to over 50% when the probability of conviction in similar cases without criminal records is less than 20%. We find no evidence that prior-record evidence influences credibility. Given growing concern about the risk of erroneous convictions, judges, prosecutors, and police should consider this information in making decisions relating to prior criminal records.
. . .
| Jury did not learn of record | Jury did learn of record | |
| Evidence stength: Low | 18% convicted | 42.9% convicted |
| Evidence stength: High | 90.8% convicted | 93.2% convicted |
3.4.4.4 OPTIONAL: Discussion of Rule 609 from: THE DISPARATE IMPACT OF THE MARYLAND RULES ON BLACK AND BROWN INDIVIDUALS 3.4.4.4 OPTIONAL: Discussion of Rule 609 from: THE DISPARATE IMPACT OF THE MARYLAND RULES ON BLACK AND BROWN INDIVIDUALS
April 20, 2021
This Report was prepared in 2021 at the request of the Rules Review Subcommittee of the Maryland Judiciary’s Committee on Equal Justice. What's exciting is that the authors of this report are law students from two clinics at the Univ. of Maryland School of Law!
This excerpt includes the portion of the report dedicated to Rule 609. I made this optional beacuse the key points are included in the required reading. Also, I've included the relevant footnotes for this section but you don't need to read them.
University of Maryland Francis King Carey School of Law Criminal Defense Clinic
Summer Akhtar, Rose Cowan, Meghan Howie, Kathryn Meader, Veronica Mina, Daniel Mooney, Avery Potts, Kelsey Robinson, and Maneka Sinha, Esq.
University of Maryland Francis King Carey School of Law Youth, Education, and Justice Clinic Sarah Abutaleb, Alex Greenspan, Maya Jackson, and Michael Pinard, Esq.
[omitted]
Rule 5-609 Impeachment by Evidence of Conviction of Crime
Rule 5-609 sets forth two categories of prior convictions admissible for impeachment: (1) infamous crimes or (2) other crime relevant to the witness’s credibility.235 Infamous crimes include “treason, common law felonies, and other offenses classified generally as crimen falsi.”236 The court determines as a matter of law which crimes are relevant to the witness’s credibility.237 Rule 5-609 further mandates a balancing test between the probative value and unfair prejudice presented by the prior conviction.238
“Prior convictions for the same or similar offenses as the charged offense are not automatically excluded.” This is one of several factors the court considers in determining whether to admit the conviction. 239 Upon admission, “only the name of the conviction, the date of the conviction, and the sentence imposed may be introduced.”240 These limitations are designed to prevent a jury from convicting a defendant based solely on a past criminal record.241
The Problems
Rule 5-609 permits a questionable chain of inferences: the witness committed a prior crime; therefore, it is more likely that the witness is generally dishonest; therefore, it is more likely that the witness testified untruthfully at the instant trial.242 There are several issues with Rule 5-609 and this permissible chain of inferences.
First, there is little limit to which prior convictions are relevant to impeach.243 Further, the balancing test on the admissibility of prior convictions is subject to judicial discretion; courts must consider several factors when determining admissibility of a prior conviction, and they need not be considered “mechanically or exclusively.”244 The lack of clear guidance creates an expansive field of admissibility that allows courts to inconsistently admit crimes under Rule 5- 609.245 For example, in Jones v. State, the court precluded the defendant from presenting evidence of a victim’s prior attempted murder conviction because the conviction was neither infamous nor relevant to credibility.246 However, in Hairston v. State, the court concluded that manslaughter, on the other hand, was an infamous crime.247
Second, Black and Brown individuals are significantly more likely to be charged and convicted of eligible Rule 5-609 crimes than their white counterparts.248 But, as mentioned throughout this Report, convictions do not always convey culpability because Black and Brown people are selectively arrested, charged, and convicted. 249 Thus, disproportionate law enforcement increases the likelihood that Black and Brown will have impeachable convictions. 250
Moreover, the use of impeachment by prior conviction by prosecutors presents an additional concern for criminal defendants who wish to take the stand in their own defense. Because Black and Brown people are over-represented in the population of criminal defendants and in the population of people who have impeachable convictions, this is another way in which Black and Brown people are harmed by Rule 5-609.
Third, justifications for admission under this rule are based on false assumptions. For a prior conviction to be probative, a factfinder must assume that a conviction reflects commission and culpability of a crime.251 However, we know that this assumption may be unfounded. For example, people plead guilty to crimes they are innocent of to avoid enhanced charges or penalties, such as mandatory minimum sentences.252 On top of that, the rule assumes a relationship between convictions and credibility that may not be well-supported. No empirical data supports the argument that someone with a criminal conviction is more likely to lie on the witness stand than someone with no prior convictions.253
Fourth, it is impossible to separate convictions admitted as relevant to credibility from propensity. As an initial matter, the Rule assumes that factfinders will not use evidence prior convictions as propensity evidence.254 However, despite limiting instructions admonishing juries to consider “infamous crimes”255 to evaluate credibility only, numerous studies reveal that jurors use prior convictions to infer criminal proclivity and frequently ignore or fail to understand limiting instructions.256 Additionally, the Rule itself may require propensity reasoning.257 For example, a party may introduce evidence of a past conviction of perjury precisely to show that the defendant witness lied in the past and is therefore more likely lying now.258 Again, empirical data does not support the assumption that a witness with a prior conviction is more likely to lie than a witness without a prior conviction.259
Fifth, this Rule disproportionately impacts criminal defendants. Defendants without convictions testify more frequently than do those with prior convictions.260 Research reveals that a significant reason defendants, even innocent ones, do not take the stand in their own defense is the allowance of impeachment by prior convictions.261 This is all the more problematic given that, due to racially disparate policing and prosecution, Black and Brown individuals make up a disproportionate percentage of criminal defendants.
Recommendations
The Maryland judiciary needs to recognize the inherent flaws in the impeachment by prior conviction rule and its application. Other states have recognized these flaws and taken steps to correct them. For example, Kansas and Hawaii only allow prosecutors to impeach defendant witnesses by prior conviction if the defendant introduces evidence bolstering his or her credibility.262 Montana has gone as far as to prohibit the use of impeachment by prior conviction.263
Kansas’s Rule 5-609 counterpart states that no criminal defendant can be impeached with a prior conviction unless the defendant first introduces evidence admissible solely for the purpose of supporting his or her credibility.264 Hawaii has a similar rule based on a case law.265 However, both states have run into issues in three areas with the restructuring of the prior conviction rule.266
First, the reformulation created uncertainty about when a defendant has introduced evidence solely for the purpose of credibility.267 For example, a court found that a defendant introduced evidence of his credibility when he mentioned he was an ordained minister and donated money to charity, whereas another defendant who testified that he was honorably discharged from the military was not found to have introduced credibility evidence.268 Second, defense attorneys, prosecutors, and judges either misapply or do not know the rule.269 In one Kansas case, the prosecution, defense counsel, and judiciary all misapplied the rule.270 Third, despite the errors in application, the systems provides no accountability for those errors, because mistrials are rarely granted when prosecutors erroneously use prior convictions for impeachment and courts often find defense counsel and judicial error harmless.271
Montana, on the other hand, went as far as to do away with the use of impeachment by prior convictions for all witnesses.272 Montana decided to ban impeachment by prior conviction because of its low probative value.273 However, the reformulation created new litigation around the legal question of whether the ban violates a criminal defendant’s Sixth amendment right to confront witnesses.274
Even though each of these solutions has created new uncertainties, 275 what remains certain is that this Rule needs to be adjusted to account for the enhanced prejudice it causes criminal defendants. At a minimum, the Rules Committee should change Maryland’s Rule to reflect its federal counterpart, which is significantly more limited. Federal Rule of Evidence 609 does not admit per se any crime that bears on a witness’s credibility.276 Further, the Rules Committee should explicitly mention race as a consideration that judges need to account for when conducting the balancing test between the evidence’s probative value and its prejudicial effect.277
A completely fail-proof reformulation of the Rule of impeachment by prior conviction may not be possible. Thus, in reformulating the Rule or in giving guidance to judges on how to apply it, the judiciary must recognize the detrimental impact the Rule has on Black and Brown people generally, as well as on criminal defendants specifically
Footnotes:
- 235 MD. R. EVID. 5-609(a) (“For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness, but only if (1) the crime was an infamous crime or other crime relevant to the witness's credibility and (2) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party.”).
- 236 State v. Westpoint, 404 Md. 455, 477–78 (2008) (quoting State v. Giddens, 335 Md. 205, 213–14 (1994)).
- 237 Id.
- 238 MD. R. EVID. 5-609(a). 2
- 39 Jackson v. State, 340 Md. 705, 711 (1995).
- 240 Giddens, 335 Md. at 222.
- 241 Jackson, 340 Md. at 715.
- 242 Sampsell-Jones, supra note 224, at 177.
- 243 State v. Giddens, 335 Md. 205, (1994) (in Maryland, impeachable convictions include “infamous crimes” and crimes relevant to credibility).
- 244 Jackson, 340 Md. at 717.
- 245 See John Karpinski, Rosales v. State: Time for a Change, Witness Impeachment by Use of a Prior Conviction, 79 MD. L. REV. ONLINE 101, 108 (2020) (“Maryland Courts have struggled to identify if a crime’s elements specifically identify conduct that bears on the witness’s credibility, and thus, is admissible under rule 5-609.”).
- 246 217 Md. App. 676, 705–6 (2014).
- 247 68 Md. App. 230, 235 (1986).
- 248 See Weihua Li, The Growing Racial Disparity in Prison Time, THE MARSHALL PROJECT (Dec. 3, 2019, 6:00 a.m.), https://www.themarshallproject.org/2019/12/03/the-growing-racialdisparity-in-prison-time.
- 249 See Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 FORDHAM L. REV. 13, 37 (1998) (concluding that because of disparities in policing, “the existence or nonexistence of an arrest or conviction record may or may not reflect relative criminality in [B]lack and white defendants”); see also supra notes 44, 173–74 and accompanying text.
- 250 Criminal Justice Fact Sheet, supra note 25.
- 251 Anna Roberts, Conviction by Prior Impeachment, 96 B.U. L. REV. 1977, 1992 (2016).
- 252 Jed Rakoff, Why Innocent People Plead Guilty, N.Y. REV. (Nov. 24, 2014), https://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/.
- 253 James E. Beaver & Steven L. Marques, A Proposal to Modify the Rule on Criminal Conviction Impeachment, 58 TEMP. L.Q. 585, 613 (1985)
- 254 Id. at 1992.
- 255 Cure v. State, 421 Md. 300, 324 (2011) (finding arson can be admissible as an “infamous crime”).
- 256 Robert Dodson, What Went Wrong with Federal Rule of Evidence 609: Look at How Jurors Really Misuse Prior Conviction Evidence, 48 DRAKE L. REV. 1, 31 (1999).
- 257 Roberts, supra note 251, at 1984.
- 258 Id. at 1985.
- 259 Beaver & Marques, supra note 253, at 613.
- 260 John H. Blume, The Dilemma of the Criminal Defendant with a Prior Record - Lessons from the Wrongfully Convicted, 5 J. OF EMPIRICAL LEGAL STUDIES 477, 479 (2008).
- 261 Id. at 491.
- 262 KAN. STAT. ANN. § 60-421; State v. Santiago, 492 P.2d 657, 661 (Haw. 1971).
- 263 MONT. R. EVID. 609.
- 264 KAN. STAT. ANN. § 60-421.
- 265 Santiago, 492 P.2d at 661.
- 266 Roberts, supra note 251, at 2034.
- 267 Id.
- 268 Id. at 2020.
- 269 Id. at 2021.’
- 270 In State v. King, the court granted the State’s motion to admit evidence of the defendant’s prior theft convictions and the defense attorney advised the defendant the State could use her prior conviction during cross-examination to which the judge reiterated was a proper advisement by defense counsel. No. 109,443, 2014 Kan. App. Unpub. LEXIS 494, at *1 (Kan. Ct. App. Jun. 27, 2014).
- 271 Roberts, supra note 251, at 2023.
- 272 MONT. R. EVID. 609 (“For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is not admissible”).
- 273 MONT. R. EVID. 609, Commission's Comment ([T]he Commission [on the Rules of Evidence] rejects the rule allowing impeachment by evidence of conviction of a crime … most importantly because of its low probative value in relation to credibility. The Commission does not accept as valid the theory that a person’s willingness to break the law can automatically be translated into willingness to give false testimony”)
- 274 Victor Gold, Impeachment by Conviction Evidence: Judicial Discretion and the Politics of Rule 609, 15 CARDOZO L. REV. 2295, 2310–11 (1994) (“[W]here an accused offers conviction evidence to impeach a prosecution witness, exclusion of the evidence raises issues under the Confrontation Clause.”); see Davis v. Alaska, 415 U.S. 308, 318 (1974) (holding that refusal to allow the defendant to cross-examine a key prosecution witness to show his probation status following adjudication of juvenile delinquency denied the defendant his constitutional right to confront witnesses).
- 275 See Roberts, supra note 251, at 2034.
- 276 FED. R. EVID. 609.
- 277 Jackson v. State, 340 Md. 705, 717 (1995) (The current factors courts must consider in the balancing test are: “(1) the impeachment value of the prior crime; (2) the point in time of the conviction and the defendant's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the defendant's credibility.”).
3.5 Class 9 3.5 Class 9
Merritt & Simmons Textbook Assignment Merritt & Simmons Textbook Assignment
In the Merritt & Simmons textbook, please read Chapters 21 & 22.
For Chapter 21, there are no meaningful distinctions between the Third and Fourth editions.
For Chapter 22, if you are using the Third Edition, please replace the shaded box on page 279 with the following:
That evidence takes three primary forms:
• Explanation of any extenuating circumstances related to specific incidents of untruthfulness raised by the opponent during cross-examination. The party usually elicits these details from the fact witness on redirect examination.
• Explanation of any extenuating circumstances related to prior convictions. Once again, the party usually elicits these details from the fact witness on redirect examination.
• Introduction of reputation or opinion evidence suggesting a character for truthfulness. The party offers this testimony through a rebuttal character witness.
Rule 608(a) Rule 608(a)
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.
Excerpt from Advisory Committee Notes:
In Rule 404(a) the general position is taken that character evidence is not admissible for the purpose of proving that the person acted in conformity therewith, subject, however, to several exceptions, one of which is character evidence of a witness as bearing upon his credibility. The present rule develops that exception.
In accordance with the bulk of judicial authority, the inquiry is strictly limited to character for veracity, rather than allowing evidence as to character generally. The result is to sharpen relevancy, to reduce surprise, waste of time, and confusion, and to make the lot of the witness somewhat less unattractive. McCormick §44.
The use of opinion and reputation evidence as means of proving the character of witnesses is consistent with Rule 405(a). . . .
Character evidence in support of credibility is admissible under the rule only after the witness’ character has first been attacked, as has been the case at common law. Maguire, Weinstein, et al., Cases on Evidence 295 (5th ed. 1965); McCormick §49, p. 105; 4 Wigmore §1104. The enormous needless consumption of time which a contrary practice would entail justifies the limitation. Opinion or reputation that the witness is untruthful specifically qualifies as an attack under the rule, and evidence or misconduct, including conviction of crime, and of corruption also fall within this category. Evidence of bias or interest does not. McCormick §49; 4 Wigmore §§1106, 1107. Whether evidence in the form of contradiction is an attack upon the character of the witness must depend §§1108, 1109.
United States v. Turning Bear United States v. Turning Bear
This excerpt discusses the basis for opinion evidence under Rule 608(a) and illustrates the relationship between impeachment and Rule 403 (“there’s always me!”)
UNITED STATES of America, Appellee, v. Nicholas TURNING BEAR, III, also known as Nicholas Turning Bear, Jr., III, Appellant.
No. 03-2280.
United States Court of Appeals, Eighth Circuit.
Submitted: Dec. 16, 2003.
Filed: Feb. 2, 2004.
*732Counsel who presented argument on behalf of the appellant was Timothy J. Langley, Sioux Falls, SD.
Counsel who presented argument on behalf of the appellee was Randolph J. Seiler, Pierre, SD.
Before MORRIS SHEPPARD ARNOLD, HEANEY, and FAGG, Circuit Judges.
Nicholas Turning Bear, III, was convicted by a jury of five counts of aggravated sexual abuse of his son and daughter, in violation of 18 U.S.C. §§ 1153, 2241(c), and 2246(2). Mr. Turning Bear’s son, N.T.B., was between the ages of four and six during the period over which the offenses were alleged to have occurred, and his daughter, M.T.B., was between the ages of one and three during this time. The government’s case rested largely on statements that the two children made during the course of the investigation and at trial. *733Mr. Turning Bear made no incriminating admissions, and there was no eyewitness testimony from third parties. A physical examination of M.T.B. revealed some evidence that was consistent with, but did not necessarily indicate, sexual abuse. Much of the government’s case thus hinged on the credibility of the two alleged victims.
Mr. Turning Bear appeals, contending that three separate constitutional errors were made during his trial. He first asserts that the district court erred in ruling inadmissible the opinion testimony of a witness regarding the untruthfulness of N.T.B., thereby violating his fifth and sixth amendment rights to present witnesses in his defense. He also maintains that the district court violated his sixth amendment right of confrontation by ruling that M.T.B. could testify by closed-circuit television. Finally, he urges us to hold that the court again denied him his right of confrontation by admitting a videotape of M.T.B.’s out-of-court statements to a forensic interviewer. In addition to his constitutional arguments, he argues that the district court committed two sentencing errors. After reviewing the district court’s conclusions of law de novo and its findings of fact for clear error, see United States v. Yousif, 308 F.3d 820, 827 (8th Cir.2002), we reverse and remand this case to the district court for further proceedings.
I.
Mr. Turning Bear subpoenaed Gloria Odens, the foster care parent with whom both children had lived following the initial report and investigation of abuse. Ms. Odens testified that she saw N.T.B. on a daily basis during the four to six months that he resided with her, and that she believed that she was in a position to give an opinion as to his truthfulness or untruthfulness. She offered to testify that, based on her daily contact with N.T.B. over these several months, she had formed an opinion that he “was untruthful” and “didn’t always tell the truth.” The district court ruled the proffered opinion testimony inadmissible because it was “strictly her personal opinion and that would be a slippery slope.” The district court also agreed with the government’s argument that the opinion testimony would be “illegal vouchering” and concluded that the testimony would be “outside the rules of evidence.”
Criminal defendants have a fundamental right to present the testimony of witnesses in their defense, a right grounded in the fifth and sixth amendments. See Taylor v. Illinois, 484 U.S. 400, 408-09, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988); Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). A defendant cannot establish a violation of this right to offer testimony merely by showing that the court deprived him of that testimony; rather, he must “at least make some plausible showing of how [the] testimony would have been both material and favorable to his defense.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). Arbitrarily excluding proffered testimony can violate the right to present a defense where there is no claim of a discovery violation against a defendant proffering a witness’s testimony and that testimony is otherwise admissible under the rules of evidence. While “state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials,” United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998); see also Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), Mr. Turning Bear contends here that the district court did not properly rely on any cognizable evidentiary rule in excluding his proffered evidence.
*734Mr. Turning Bear’s defense focused largely on the lack of believability and reliability of the alleged victims, and he attempted to offer the opinion testimony of Ms. Odens to help establish this defense by attacking the credibility of N.T.B. Federal Rule of Evidence 608(a) provides that the “credibility of a witness may be attacked ... by evidence in the form of opinion” subject to the limitation that “the evidence may refer only to character for ... untruthfulness.” Admissibility of opinion testimony by lay witnesses is further limited by Rule 701, which requires that the testimony be “rationally based on the perception of the witness” and “helpful to a clear understanding of the witness’ [sic] testimony or the determination of a fact in issue.”
We have stated that opinion testimony about the truthfulness or untruthfulness of a witness may be excluded “ ‘if it amounts to no more than a conclusory observation,’ ” United States v. Cortez, 935 F.2d 135, 139 (8th Cir.1991), cert. denied, 502 U.S. 1062, 112 S.Ct. 945, 117 L.Ed.2d 114 (1992) (quoting United States v. Dotson, 799 F.2d 189, 193 (5th Cir.1986)), or if the opinions were not “ ‘more than bare assertions,’ ” United States v. McMurray, 20 F.3d 831, 834 (8th Cir.1994) (quoting Dotson, 799 F.2d at 193). An adequate foundation must be laid in order for opinion testimony concerning another witness’s character for untruthfulness to be admissible. Such a foundation is laid by demonstrating that the opinion witness knows the relevant witness well enough to have formed an opinion. See, e.g., McMurray, 20 F.3d at 834; Cortez, 935 F.2d at 139-40; cf. United States v. Oliver, 492 F.2d 943, 946 (8th Cir.1974).
Whether there has been an adequate showing that proffered opinion testimony regarding a witness’s truthfulness amounts to “more than bare assertions” is generally a question committed to the trial court’s discretion, McMurray, 20 F.3d at 834, but here the district court did not conclude that the foundation was inadequate or that Mr. Turning Bear otherwise failed to meet the requirements of Rules 608 and 701. We think that Mr. Turning Bear laid a sufficient foundation for Ms. Odens’s testimony. Because Ms. Odens had had daily contact with N.T.B. over the four-to-six-month period that he lived in her home, she knew him well enough to have formed an opinion about his character for untruthfulness that was more than a “bare assertion” or “conclusory observation.” We believe that the proffered testimony quite clearly complied with the requirements of Rules 608 and 701.
The government argues, however, that the district court acted within its discretion under Federal Rule of Evidence 403 in excluding the opinion testimony, even though it was otherwise admissible under Rules 608 and 701. Rule 403 allows the exclusion of relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” And Rule 608(a) does not state that evidence meeting its requirements must be admitted; it states that the “credibility of a witness may be attacked” by opinion evidence that meets certain requirements.
While the Eighth Circuit has not directly addressed the issue, the Fifth Circuit has concluded that evidence admissible under Rule 608(a) may be excluded under Rule 403 “if its probative value is substantially outweighed by its needlessly cumulative nature,” subject to the caveat that such an exclusion of testimony sought to be presented by a criminal defendant must not be used in a way that violates the defendant’s sixth amendment rights. *735United States v. Davis, 639 F.2d 239, 244 (5th Cir.1981). We agree, but the proffered opinion testimony here was clearly not needlessly cumulative. The credibility of N.T.B.’s testimony was one of the central issues in the case, and it was thus critical that material evidence relating to its veracity be admitted for the jury’s consideration. In this case, the district court did not identify, nor can we independently discern, sufficient harm from unfair prejudice or any other proper Rule 403 consideration that would “substantially outweigh” the probative value of the highly relevant and otherwise admissible opinion testimony proffered by Mr. Turning Bear. The district court’s decision to exclude Ms. Odens’s testimony because “[tjhat’s strictly her personal opinion and that would be a slippery slope” was not an appropriate application of Rule 403.
Because the district court’s exclusion of Ms. Odens’s testimony was not proper under Rule 403 or any other evidentiary rule or principle that we can identify, and the testimony was clearly relevant to one of the central issues of the case, we hold that the exclusion violated Mr. Turning Bear’s constitutional right to put on witnesses in his defense. While a defendant’s “right to present relevant testimony ... ‘may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process,’ ” Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (quoting Chambers, 410 U.S. at 295, 93 S.Ct. 1038), the district court’s exclusion of Ms. Odens’s testimony, which would have been material and favorable to Mr. Turning Bear’s defense, served no such legitimate interest.
II.
The district court ruled that M.T.B.’s examination could be conducted by closed-circuit television after she cried and exhibited distress at the beginning of her testimony in the presence of the jury. Before commencing the closed-circuit testimony, the court held a hearing in chambers. At the hearing, when the court asked M.T.B. the open-ended question, “Why didn’t you want to talk, honey?”, she replied, “Because I was scared to talk in front of them people.” When the court then asked, “Honey, is there any person that you are scared of?”, M.T.B. said that she was scared of the prosecuting attorney. Only in response to leading questions by the prosecuting attorney did M.T.B. eventually indicate (by nodding her head) that she was also frightened by the presence of her father in the courtroom. Following additional questioning of M.T.B. by the prosecuting attorney, Mr. Turning Bear’s counsel, and a foster parent, the district court made the following findings: “I find that the child would be unable to testify in the courtroom because of fear. It’s clear to me that she is afraid of her father, and that she is afraid of the jury as well, and [the prosecuting attorney], apparently. And that’s a combination.... I find that the child is unable to testify because of fear of the defendant, the jury, and [the Assistant United States Attorney]. And it is intimidating to be in that very large courtroom for anyone.”
Mr. Turning Bear maintains that the use of the closed-circuit television at his trial violated his sixth amendment right of confrontation. We agree, because the district court failed to make an adequate case-specific finding of necessity in conformance with the requirements outlined in Maryland v. Craig, 497 U.S. 836, 855-60, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).
The district court was required to make certain findings in order to permit M.T.B. to testify by closed-circuit television. Whether the district court’s relevant factual findings were supported by evidence in the record is reviewable under the “clearly *736erroneous” standard, but whether those findings were sufficient to permit the use of closed-circuit television testimony consistent with Mr. Turning Bear’s constitutional right of confrontation is a legal issue that we review de novo.
The confrontation clause provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” As a general matter, “the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). “That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult.” Id. at 1020, 108 S.Ct. 2798.
The right to face-to-face confrontation, however, is not absolute. The Supreme Court has recognized a narrow exception to this right for certain child witnesses, reasoning that an “interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court.” Craig, 497 U.S. at 853, 110 S.Ct. 3157. Craig held that the use of a closed-circuit television procedure that permits a child witness in a child abuse case to testify at trial against a defendant in the absence of face-to-face confrontation is permissible if the trial court makes an adequate “case-specific” finding of “necessity.” Id. at 855, 110 S.Ct. 3157.
This finding of necessity has three mandatory components: first, the “trial court must hear evidence and determine whether use of the one-way closed-circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify”; second, the “trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant”; and third, “the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify.” Id. at 856, 110 S.Ct. 3157 (internal quotations omitted).
In explaining the reason for the requirement that the child witness must be traumatized by the presence of the defendant particularly, the Supreme Court noted that if the “interest were merely ... in protecting child witnesses from courtroom trauma generally, denial of face-to-face confrontation would be unnecessary because the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present.” Id. Any trauma or fear created by elements present in the courtroom other than the defendant is irrelevant to the inquiry whether the closed-circuit television testimony is constitutionally permissible. The proper inquiry is whether the presence of the defendant, standing alone, would trigger the requisite level of trauma in the witness.
The district court found that M.T.B. was “unable to testify in the big courtroom” because of fear of a “combination” of the presence of her father, the jury, and the prosecutor, as well as intimidation from being in the “very large courtroom.” We conclude that these findings were legally insufficient to justify the use of the closed-circuit television testimony because they failed to satisfy the requirement that M.T.B. “be traumatized, not by the courtroom generally, but by the presence of the defendant.”
The district court’s finding of fear seemed to be dependent upon the testimony occurring in a particular physical location, as it specifically found that M.T.B. *737would be unable to testily “in the big courtroom” because of fear arising from the various sources. The physical location of the testimony, however, is irrelevant to the face-to-face confrontation inquiry, as “the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present.” Id.
The district court, moreover, did not make particularized findings as to the existence or magnitude of any trauma specifically caused by the presence of Mr. Turning Bear, without regard to the size of the courtroom or the presence of the prosecutor and jury. Indeed, the court was aware that M.T.B. had successfully testified on the previous day during a motion hearing outside the presence of the jury when her father had been present, and that during the hearing on the propriety of closed-circuit testimony M.T.B. had indicated that the “people in the jury scare [her] more than [her] dad being in the courtroom,” considerations that likely led it to attribute her disabling fear at trial to a “combination” of conditions rather than the presence of her father alone. We think that this situation is similar in relevant respects to Hoversten v. Iowa, 998 F.2d 614, 616-17 (8th Cir.1993), in which we upheld an order granting a defendant a writ of habeas corpus because the “trial court’s finding of necessity was based upon the ‘traumatic experience of testifying in open court,’ a consideration expressly held in Craig to be insufficient,” id. at 616. Because the district court failed to separate out the effect on M.T.B. of her father’s presence, this case is distinguishable from United States v. Rouse, 111 F.3d 561, 568-69 (8th Cir.1997), cert. denied, 522 U.S. 905, 118 S.Ct. 261, 139 L.Ed.2d 188 (1997), in which we upheld the use of closed-circuit testimony where the district court had found that the alleged abusers’ presence in the courtroom would “more than anything else prevent [the child witness] from testifying,” id. at 568.
III.
Mr. Turning Bear- next argues that the admission at trial of a twelve-minute videotape of M.T.B.’s previous out-of-court statements to a forensic interviewer violated the confrontation clause of the sixth amendment. The videotaped interview at issue took place after the children had been taken into custody by the South Dakota Department of Social Services following a referral alleging that M.T.B. had been sexually abused and after a preliminary investigation into those allegations. Colleen Brazil, a forensic interviewer, conducted the interview at a center for child evaluation before a physical examination by a doctor.
The confrontation clause “does not necessarily prohibit the admission of hearsay statements against a criminal defendant.” Idaho v. Wright, 497 U.S. 805, 813, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). It does, however, bar “the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.” Id. at 814, 110 S.Ct. 3139. Out-of-court statements incriminating a defendant may not be admitted without violating the confrontation clause unless two requirements are met. First, “the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Second, “if the witness is shown to be unavailable ... his statement is admissible only if it bears adequate ‘indicia of reliability’ ” either because it “falls within a firmly rooted hearsay exception” or it is supported by “a showing of particularized guarantees of trustworthiness.” Id. at 65-66, 100 S.Ct. 2531 (footnote omitted); see also Wright, 497 U.S. at 814, 110 S.Ct. 3139.
*738We have recognized that the admission of hearsay evidence against a criminal defendant generally does not violate the confrontation clause, regardless of whether the evidence bears adequate indicia of reliability, where “the hearsay declarants ... actually appear in court and testify in person.” United States v. Spotted War Bonnet, 933 F.2d 1471, 1473 (8th Cir.1991), cert. denied, 502 U.S. 1101, 112 S.Ct. 1187, 117 L.Ed.2d 429 (1992). We have also held that a victim’s testimony by closed-circuit television counts as actually appearing in court and testifying in person for confrontation clause purposes. Rouse, 111 F.3d at 569-70. M.T.B. testified by closed-circuit television at Mr. Turning Bear’s trial. As explained above, however, M.T.B.’s closed-circuit television testimony violated Mr. Turning Bear’s sixth amendment right of confrontation and should not have been considered by the jury. We thus cannot consider that testimony when determining whether admission of the hearsay videotape satisfied the confrontation clause. Because M.T.B. did not testify “in person” at trial in a legally permissible manner, the issue presented is whether the government, as the proponent of the videotape evidence presumptively barred by the hearsay rule and the confrontation clause, has carried its burden of proving that M.T.B.’s incriminating statements to Ms. Brazil bore sufficient indicia of reliability to withstand scrutiny under the clause.
The district court evidently admitted the videotape evidence under both the residual hearsay exception, see Fed R. Evid. 807, and the hearsay exception allowing admission of statements made for the purposes of obtaining medical diagnosis and treatment, see Fed.R.Evid. 803(4). While the court cited only Rule 807 at the time that it admitted the evidence, it later mentioned Rule 803(4) as an alternative basis for admission of the hearsay.
The residual hearsay exception “accommodates ad hoc instances in which statements not otherwise falling within a recognized hearsay exception might nevertheless be sufficiently reliable to be admissible at trial.” Wright, 497 U.S. at 817, 110 S.Ct. 3139. The residual exception is not firmly rooted for confrontation clause purposes because hearsay statements admitted under it “do not share the same tradition of reliability that supports the admissibility of statements under a firmly rooted hearsay exception.” Id. Thus, even if the videotape were admissible under Rule 807, that would not be enough to establish that the evidence had adequate “indicia of reliability” for confrontation clause purposes.
The rule allowing admission of statements made for the purposes of medical diagnosis or treatment “is widely accepted as a firmly rooted hearsay exception.” United States v. Sumner, 204 F.3d 1182, 1185 (8th Cir.2000). This hearsay exception is based on the rationale that “the patient’s selfish interest in receiving proper treatment guarantees the trustworthiness of the statements,” and consequently, hearsay statements disclosing the identity of a sexual abuser are admissible under Rule 803(4) only “where the physician makes clear to the victim that the inquiry into the identity of the abuser is important to diagnosis and treatment, and the victim manifests such an understanding.” United States v. Renville, 779 F.2d 430, 438 (8th Cir.1985). We have asked two questions in determining whether a statement meets the standards for admission under Rule 803(4): “first, the declar-ant’s motive in making the statement must be consistent with the purposes of promoting treatment; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.” Id. at 436. We conclude *739that M.T.B.’s disclosure in the forensic interview of the identity of her abuser and descriptive details of the abuse might be reasonably relied on by a physician in treating and diagnosing any trauma resulting from that abuse, but that there was insufficient evidence in the record that M.T.B. had the requisite motive in making the statements.
Even though Ms. Brazil’s interview was tangentially related to a doctor’s physical examination, we think that the government has failed to establish that M.T.B.’s frame of mind at the time of Ms. Brazil’s interview was that of a patient seeking medical treatment. There is simply no evidence that M.T.B., who was three years and ten months old at the time of the interview, understood the medical significance of being truthful in discussing the details of the alleged abuse with Ms. Brazil, and that she thus had the selfish subjective motive of receiving proper treatment. See Stimner, 204 F.3d at 1185-86.
Ms. Brazil testified that the doctor informed M.T.B. before the interview that she was “there for a checkup” and that Ms. Brazil’s job was to “take a history” for her or to “kind of find out how things are” for her before she had her checkup. There is, however, no evidence that M.T.B. was aware that she had an injury or that she understood that telling the truth was important to the treatment for that injury. Ms. Brazil did not discuss why the questions she asked were important to the diagnosis and treatment and why it was important for M.T.B. to tell the truth regarding the details of any abuse or the identity of any abuser. See id. To the contrary, Ms. Brazil testified that when she spoke to M.T.B., she did not delve into the distinction between telling the truth and lying because of M.T.B.’s young age. We recognize that in situations involving very young declarants, it may be exceedingly difficult to establish the existence of a selfish motive for receiving proper treatment, but that is what the applicable principles require.
Because we conclude that M.T.B.’s out-of-court videotaped statements do not fall within a firmly rooted hearsay exception, we must determine whether they nevertheless exhibit “particularized guarantees of trustworthiness” to overcome a confrontation clause objection to their admission. The relevant circumstances with regard to a showing of particularized guarantees of trustworthiness “include only those that surround the making of the statement and that render the declarant particularly worthy of belief.” Wright, 497 U.S. at 819, 110 S.Ct. 3139. The evidence must be “at least as reliable as evidence admitted under a firmly rooted hearsay exception” and “so trustworthy that adversarial testing would add little to its reliability.” Id. at 821, 110 S.Ct. 3139. “[U]nless an affirmative reason, arising from the circumstances in which the statement was made, provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion of the out-of-court statement.” Id. Evidence corroborating the truth of a hearsay statement may not be used to support a finding that the statement bears particularized guarantees of trustworthiness. Id. at 822, 110 S.Ct. 3139. “To be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.” Id.
In admitting the hearsay videotape, the district court relied, in part, on the fact that other evidence conflicted with the videotape, stating that “[t]he testimony [at trial] of the two children was not consistent with statements previously made by the children in the videotaped interviews.” *740But surely a finding that hearsay evidence is inconsistent with evidence admitted at trial does not help bolster the case that the hearsay was inherently trustworthy. The district court did find that the videotaped interviews “apparently, were conducted under the appropriate safeguards as established by various professional bodies,” though it did not elaborate on what these safeguards were. Other than this, however, the district court made no findings relating to circumstantial guarantees of trustworthiness before it admitted the videotape and played it for the jury. The district court did make supplemental findings relating to the reliability of the statements on the videotape after the jury had watched it. Specifically, the court stated that it believed that M.T.B. understood that it was important that she tell the truth, that the interview had been conducted soon after the alleged abuse had been reported, that the questions posed “were open-ended for the most part” with no indication of coaching or suggestive procedures used to obtain the statements, that M.T.B. appeared to be spontaneous and relaxed during the course of the interviews, and that M.T.B. used “somewhat age appropriate language.”
Our independent review of the record leads us to conclude that the circumstances rehearsed by the district court are insufficient to justify its conclusion that the hearsay was sufficiently trustworthy. While the district court based its conclusion that the videotaped interview was reliable in part on the fact that the interview occurred “almost immediately after the alleged sexual abuse had been reported,” the interview actually occurred over two months after the alleged abuse had been reported and over two years after the date that the indictment alleged that the abuse began. The district court’s observation that M.T.B. appeared to be “spontaneous and relaxed” is tempered by the facts shown on the videotape that M.T.B. was initially crying and reluctant to enter the interview room, and that, before responding to questions put to her by Ms. Brazil, M.T.B. looked back to caseworker JoAnn Yankton, who was present throughout the course of the interview. The district court’s finding that M.T.B. used “somewhat age appropriate language” does not, we think, count for much, as the language was found to be only “somewhat” age appropriate, and we have noted in the past that “the fact that [a child] used terminology typical of a child her age is not particularly helpful” in conducting the Wright trustworthiness inquiry, Ring v. Erickson, 983 F.2d 818, 821 (8th Cir.1992). Finally, as noted above, nothing unique about the circumstances of the interview indicates that M.T.B. had a particularly strong motivation to tell the truth, since there is no evidence that she understood the medical significance of being truthful in the interview, and Ms. Brazil testified at trial that when she interviewed M.T.B., she “didn’t cover the difference between a truth and lie because with children under four often I won’t do that just because they’re so young.”
While we can discern nothing about the interview indicating that it is particularly unreliable or untrustworthy, we see no “affirmative reason” suggesting that the hearsay is “so trustworthy that adversarial testing would add little to its reliability.” There is a longstanding presumption in the law that hearsay statements are not worthy of reliance at trial. The district court’s findings are insufficient to rebut this presumption, and because Mr. Turning Bear never had a constitutionally adequate opportunity to confront his accuser at trial, the confrontation clause required exclusion of the hearsay videotape.
IV.
We have concluded that the district court violated Mr. Turning Bear’s *741right to present witnesses in his defense by excluding Ms. Odens’s opinion testimony for improper reasons, and that it violated his right of confrontation by allowing M.T.B. to testify by closed-circuit television and by admitting the videotape of M.T.B.’s out-of-court statements to a forensic interviewer. Mr. Turning Bear is not entitled to relief, however, if these errors were “so unimportant and insignificant that they may ... be deemed harmless.” Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Under Chapman, the district court’s errors were harmless only if it is clear beyond a reasonable doubt that they did not contribute to the jury’s guilty verdict. Id. at 24, 87 S.Ct. 824. “ ‘The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ ” Id. at 23, 87 S.Ct. 824 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963)). The proper inquiry “is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).
The jury convicted Mr. Turning Bear on five separate offenses: two counts of unlawful sexual contact with N.T.B. and three counts of unlawful sexual contact with M.T.B. We must determine whether it is clear beyond a reasonable doubt that the three evidentiary errors did not contribute to the jury’s guilty verdict on any of these five counts. In analyzing the evidence for harmless error, M.T.B.’s closed-circuit television testimony “must be entirely excluded because it would be ‘pure speculation’ to consider whether the child’s testimony, or the jury’s assessment of that testimony, would have changed had there been proper confrontation.” Hoversten, 998 F.2d at 617 (quoting Coy, 487 U.S. at 1022, 108 S.Ct. 2798). Similarly, in analyzing the evidence, we must entirely exclude the videotaped interview and include Ms. Odens’s proffered opinion testimony.
We thus must determine whether inclusion of M.T.B.’s closed-circuit television testimony and hearsay videotape and exclusion of Ms. Odens’s opinion testimony about N.T.B.’s untruthfulness contributed nothing to the jury’s guilty verdict on any of the five counts beyond a reasonable doubt. If the evidence of guilt actually presented to the jury, not including M.T.B.’s closed-circuit television testimony or her videotaped statements to the forensic interviewer, was “overwhelming” as to any of the counts, then it is likely that the evidentiary errors were harmless with regard to those counts. See, e.g. United States v. Oliver, 492 F.2d 943, 947 (8th Cir.1974) (quoting Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969)).
Excluding M.T.B.’s closed-circuit television testimony and videotaped interview, the government’s remaining evidence was scant with regard to the counts involving the alleged abuse of M.T.B. There was some evidence discovered in a medical examination of M.T.B. that was consistent with physical abuse, but it did not conclusively establish that M.T.B. had been physically abused or provide any information about the identity of the abuser, if any. As the district court found, the medical evidence did “somewhat backup the alleged abuse” of M.T.B. During N.T.B.’s videotaped forensic interview, which was introduced into evidence, he described sexual contact by Mr. Turning Bear against M.T.B. At trial, however, N.T.B. denied seeing Mr. Turning Bear abusing his sister, but testified that he himself had sexu*742ally touched M.T.B., and that other minors had sexually touched M.T.B.
The doctor who physically examined M.T.B. and N.T.B., considering a range of behaviors attributed by others to the two children, expressed the opinion “[t]hat those behaviors could be consistent with child sexual abuse,” but that they also might be explained by other trauma. M.T.B. and N.T.B. had earlier been in an automobile accident in which their mother and grandmother had been killed in the children’s presence, and the doctor testified that trauma from such an event was of the sort that might cause the kind of abnormal behavior exhibited by the children.
M.T.B.’s statements to the forensic interviewer and during the closed-circuit testimony were clearly important evidence in the government’s case against Mr. Turning Bear in the three counts relating to the alleged abuse of M.T.B., and we believe that the statements very likely contributed to his conviction on these three counts. We certainly cannot conclude beyond a reasonable doubt that the jury did not give any weight to M.T.B.’s closed-circuit television testimony or her videotaped interview in returning guilty verdicts on these counts.
The harmless error inquiry with regard to the two counts involving N.T.B. is not as clear-cut. There was no physical evidence relating to the counts involving the alleged abuse of N.T.B. In his videotaped interview that was played for the jury, N.T.B. described sexual contact by his father against himself, saying at first that it happened just “once,” and then reversing himself to say that it happened “lots of times.” N.T.B. testified at trial, at first denying sexual contact by his father, but eventually indicating that he had been abused between twenty and thirty times. He also testified at trial that his father had punched him in the back “[p]robably every day.” Mr. Turning Bear was allowed broad inquiry on cross-examination of N.T.B. Considering the record as a whole, testimony by a foster parent in whose custody N.T.B. was placed for a period of several months that she held an opinion that he was untruthful would likely not have been the most significant or probative evidence presented. N.T.B. was, however, the key government witness with regard to the counts relating to his alleged abuse, and his credibility was a very important issue. Because the evidence presented against Mr. Turning Bear on the two counts relating to N.T.B. was not “overwhelming,” we cannot say that the opinion evidence itself, had it been admitted, would have counted for nothing in the jury’s verdict beyond a reasonable doubt. We thus conclude that there is a reasonable possibility that the three evidentiary errors complained of contributed to the jury’s conviction on each of the five counts.
V.
Mr. Turning Bear also argues that the district court misapplied the United States Sentencing Guidelines in calculating his sentence. Because we have concluded that constitutional errors were committed during the course of Mr. Turning Bear’s trial, and that those errors were not harmless, the challenge to the computation of his sentence is moot.
Reversed and remanded.
Excerpt from United States v. Crowley, 318 F.3d 401 (2d Cir. 2003) Excerpt from United States v. Crowley, 318 F.3d 401 (2d Cir. 2003)
This brief excerpt from the Merchant Marine Academy case mention in your text provides an example of Rule 608(a) impeachment.
. . .
The criminal charges against Crowley . . . arose from an incident at the Kings Point Merchant Marine Academy in the early morning hours of September 28, 1997. . . . [the evidence] would have permitted the jury to find the following facts. . . . [sexual assault of a fellow midshipman, Stephanie Vincent]
. . .
A. Alleged False Accusations
Vincent's credibility was obviously a critical issue at trial, and the defense duly attacked it, not only by cross-examination but also by offering testimony from Shannon Pender, who had attended the Academy at the same time as Vincent. Pender testified that she knew and disliked Vincent, that before the incident at issue in this case she had discussed Vincent's reputation with a number of male and female fellow students, as well as with officers who were commanders and administrators of the Academy, and that Vincent had a reputation for untruthfulness. She also testified that Vincent had made various other “accusations” against fellow-midshipmen that had been “proven” false. Tr. at 723-37.
. . .
Rule 608(b)(2) Rule 608(b)(2)
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.
Comprehension Questions Set 9 Comprehension Questions Set 9
3.5.1 OPTIONAL for Class 9 3.5.1 OPTIONAL for Class 9
3.5.1.1 OPTIONAL: New York pattern jury instructions on credibility of witnesses 3.5.1.1 OPTIONAL: New York pattern jury instructions on credibility of witnesses
You may wish to look over these instructions because they provide a “plain language” description of many of the impeachment tools you have studied.
Credibility of Witnesses
As judges of the facts, you alone determine the truthfulness and accuracy of the testimony of each witness. You must decide whether a witness told the truth and was accurate, or instead, testified falsely or was mistaken. You must also decide what importance to give to the testimony you accept as truthful and accurate. It is the quality of the testimony that is controlling, not the number of witnesses who testify.
Accept in Whole or in Part (Falsus in Uno)
If you find that any witness has intentionally testified falsely as to any material fact, you may disregard that witness's entire testimony. Or, you may disregard so much of it as you find was untruthful, and accept so much of it as you find to have been truthful and accurate.
Credibility factors
There is no particular formula for evaluating the truthfulness and accuracy of another person's statements or testimony. You bring to this process all of your varied experiences. In life, you frequently decide the truthfulness and accuracy of statements made to you by other people. The same factors used to make those decisions, should be used in this case when evaluating the testimony.
In General
Some of the factors that you may wish to consider in evaluating the testimony of a witness are as follows:
Did the witness have an opportunity to see or hear the events about which he or she testified?
Did the witness have the ability to recall those events accurately?
Was the testimony of the witness plausible and likely to be true, or was it implausible and not likely to be true?
Was the testimony of the witness consistent or inconsistent with other testimony or evidence in the case?
Did the manner in which the witness testified reflect upon the truthfulness of that witness's testimony?
To what extent, if any, did the witness's background, training, education, or experience affect the believability of that witness's testimony?
Did the witness have a bias, hostility or some other attitude that affected the truthfulness of the witness's testimony?
Motive
You may consider whether a witness had, or did not have, a motive to lie.
If a witness had a motive to lie, you may consider whether and to what extent, if any, that motive affected the truthfulness of that witness's testimony.
If a witness did not have a motive to lie, you may consider that as well in evaluating the witness's truthfulness.
Benefit
You may consider whether a witness hopes for or expects to receive a benefit for testifying. If so, you may consider whether and to what extent it affected the truthfulness of the witness's testimony.]
Interest/Lack of Interest
You may consider whether a witness has any interest in the outcome of the case, or instead, whether the witness has no such interest.
[Note: Add if appropriate:
A defendant who testifies is a person who has an interest in the outcome of the case.]
You are not required to reject the testimony of an interested witness, or to accept the testimony of a witness who has no interest in the outcome of the case.
You may, however, consider whether an interest in the outcome, or the lack of such interest, affected the truthfulness of the witness's testimony.
Previous Criminal Conduct
You may consider whether a witness has been convicted of a crime or has engaged in criminal conduct, and if so, whether and to what extent it affects the truthfulness of that witness's testimony.
You are not required to reject the testimony of a witness who has been convicted of a crime or has engaged in criminal conduct, or to accept the testimony of a witness who has not.
You may, however, consider whether a witness's criminal conviction or conduct has affected the truthfulness of the witness's testimony.
[Note: Add if appropriate: With respect to the defendant, such prior convictions or criminal conduct are not evidence of defendant's guilt in this case, or evidence that defendant is a person who is disposed to commit crimes. You are permitted to consider such convictions or conduct only to evaluate the defendant's truthfulness.]
Inconsistent Statements
You may consider whether a witness made statements at this trial that are inconsistent with each other.
You may also consider whether a witness made previous statements that are inconsistent with his or her testimony at trial.
[Add if appropriate:
You may consider whether a witness testified to a fact here at trial that the witness omitted to state, at a prior time, when it would have been reasonable and logical for the witness to have stated the fact. In determining whether it would have been reasonable and logical for the witness to have stated the omitted fact, you may consider whether the witness' attention was called to the matter and whether the witness was specifically asked about it.]
If a witness has made such inconsistent statements [or omissions], you may consider whether and to what extent they affect the truthfulness or accuracy of that witness's testimony here at this trial.
The contents of a prior inconsistent statement are not proof of what happened. You may use evidence of a prior inconsistent statement only to evaluate the truthfulness or accuracy of the witness's testimony here at trial.
Consistency
You may consider whether a witness's testimony is consistent with the testimony of other witnesses or with other evidence in the case.
If there were inconsistencies by or among witnesses, you may consider whether they were significant inconsistencies related to important facts, or instead were the kind of minor inconsistencies that one might expect from multiple witnesses to the same event?
Police Testimony
In this case you have heard the testimony of (a) police officer(s). The testimony of a witness should not be believed solely and simply because the witness is a police officer. At the same time, a witness's testimony should not be disbelieved solely and simply because the witness is a police officer. You must evaluate a police officer's testimony in the same way you would evaluate the testimony of any other witness.
[Add if appropriate:
Witness Pre-trial Preparation
You have heard testimony about the prosecutor [or a lawyer] [or an investigator] speaking to a witness about the case before the witness testified at this trial. The law does not prohibit a prosecutor [or a lawyer] [or an investigator] from speaking to a witness about the case before the witness testifies, nor does it prohibit the prosecutor [or a lawyer] [or an investigator] from reviewing with the witness the questions that will be asked at trial.
You have also heard testimony that a witness read certain materials pertaining to this case before the witness testified at trial. The law does not prohibit a witness from doing so.]