Federal Evidence Review

Second Circuit notes that “[t]he fact that a witness customarily carries or displays a swastika, as a tattoo or otherwise, therefore would tend to suggest that he or she holds racial, religious or ethnic prejudices”; error was harmless beyond a reasonable doubt based on other evidence of guilt, in United States v. Figueroa, _ F.3d _ (2d Cir. Nov. 18, 2008) (No. 06-1595)

The Second Circuit recently considered whether evidence that a witness had swastika tattoos may be used to show bias where the defendant was a member of a minority group.

In the case, after parole officers discovered firearms near his apartment residence, defendant Figueroa was prosecuted on firearm charges, including for being a felon in possession of a firearm. At trial, the government called an acquaintance of the defendant who testified that he purchased a .22-caliber rifle while shopping with the defendant. About a week before the defendant’s arrest, the acquaintance sold the rifle to the defendant and it was not sawed-off. When officers found the rifle outside the defendant’s residence, it had been sawed-off.

Before trial, the defense alerted the trial court that it wanted to impeach the acquaintance about his swastikas tattoos to show his bias and possible connection to a gang and to allow the jury to consider his credibility. The trial court denied the defense request after concluding the cross-examination involved impermissible character evidence and was not probative of truthfulness under FRE 608. The defendant was convicted for being a felon in possession of a firearm and for possessing an unregistered firearm which had a barrel less than sixteen inches in length.

The Second Circuit concluded the exclusion of the swastika cross-examination violated the Confrontation Clause, yet the error was harmless beyond a reasonable doubt based on other evidence of guilt. The circuit explained the probative value of the swastika evidence:

“The record reflects that the defendant is a member of a racial or ethnic minority group. [Acquaintance] Wright, who testified against Figueroa, bore two tattoos depicting swastikas. Inasmuch as the tattoos suggested that Wright harbored animus against racial or ethnic minority groups and their members, they were relevant to and probative of Wright's credibility, bias, and motive to lie when testifying against Figueroa…. It was apparently, and understandably, assumed by the district court and the parties that the swastika is commonly associated with white supremacism and neo-Nazi groups harboring extreme forms of racial, religious and ethnic hatred and prejudice against minority groups, including that to which Figueroa assertedly belongs. The fact that a witness customarily carries or displays a swastika, as a tattoo or otherwise, therefore would tend to suggest that he or she holds racial, religious or ethnic prejudices. That in turn suggests a basis on which the jury could find the witness's testimony not credible…. In a criminal trial, a witness wearing or bearing a swastika should ordinarily be subject to cross-examination on credibility grounds where a jury might reasonably infer that the symbol indicated likely bias against the defendant.”

Figueroa, _ F.3d at _. The circuit noted that a trial court could determine outside the presence of the jury upon requests whether a witness bearing swastika tattoos was not motivated by racial or religious bias.

The circuit concluded the trial court erred as a matter of law by excluding the evidence under FRE 608. The impeachment evidence was independently admissible to show bias regardless of the application of FRE 608. The trial court also did not consider the probative value of the bias evidence against any substantial unfair prejudice under FRE 403. Nonetheless, the Confrontation Clause error was harmless beyond a reasonable doubt based on other evidence of guilt, including multiple witnesses who testified that they saw the defendant possess the sawed-off rifle and physical evidence consisting of a fired .22 caliber shell casing found on the living room floor which ballistics showed was fired by the rifle.