Eighth Circuit Explains Distinction Between Impeachment And Rebuttal Evidence

The parties were confused whether utility records were being offered as evidence to impeach a witness or as substantive evidence in trial for possession of cocaine base with the intent to distribute, in United States v. Harris, 557 F.3d 938 (8th Cir. March 12, 2009) (No. 08-2203)

The purpose for which evidence is offered often determines the admissibility of the evidence. In a recent drug prosecution, the Eight Circuit recently considered the purpose for which utility records were being introduced. In doing so, the circuit distinguished between evidence offered for impeachment or rebuttal. The parties disputed the admissibility of the records as impeachment evidence.

In the case, defendant Harris was prosecuted and convicted for possessing over fifty grams of cocaine base (crack) with intent to distribute it. One of the defense theories at trial involved the charge that the defendant was being harassed by police and that “Detective Liston had planted the drugs seized in his [defendant’s] apartment” and that the detective “had harassed him on three separate occasions.” Harris, 557 F.3d at 941. In an effort to prove that the police had set him up, the defendant offered the testimony of his mother (Ms. Broadway), who testified “that because of a power outage at her home she stayed at Mr. Harris's home during the period that Mr. Harris was under surveillance. Her further testimony that she did not see anything indicating drug activity during her stay was intended to bolster Mr. Harris's defense that Detective Liston planted the drugs seized at his home.” Harris, 557 F.3d at 942.

In disputing this contention, the government introduced the utility records of the defendant’s mother which “indicated that there was indeed a power outage at Ms. Broadway's address, but that it occurred after Mr. Harris was arrested.” If believed by the jury, this evidence would suggest that the defendant’s mother was not present at the time to observe a lack of drug activity. The defendant was convicted and as part of his appeal, he contended that the admission of the utility records was erroneous.

The Eighth Circuit found that both the government and the defendant misconstrued the utility records. As explained by the circuit:

“When the government offered the records, it stated that they were being introduced for purposes of impeachment. But impeachment of a witness involves evidence that calls into question the witness's veracity. It deals with ‘matters like the bias or interest of a witness, his or her capacity to observe an event in issue, or a prior statement of the witness inconsistent with his or her current testimony.’ Berry v. Oswalt, 143 F.3d 1127, 1132 (8th Cir. 1998). The evidence at issue here, on the other hand, is rebuttal evidence: ‘Impeachment is an attack on the credibility of a witness, whereas rebuttal testimony is offered to explain, repel, counteract, or disprove evidence of the adverse party.’ Sterkel v. Fruehauf Corp., 975 F.2d 528, 532 (8th Cir. 1992). The utility records were not offered to show that Ms. Broadway was not a credible person but to show that she was not living at Mr. Harris's apartment when it was under surveillance. It was therefore admissible as relevant substantive evidence.”
Harris, 557 F.3d at 942.

In affirming the trial court’s admission of the utility records, the circuit rejected examining the case as if it involved “a party attempt[ ] to introduce extrinsic evidence of a prior statement made by a witness which was inconsistent with that witness's trial testimony in an effort to attack the witness's credibility,” under FRE 613(b). The witness’s credibility was not at issue. The impeachment cases “simply have no application to the present case,” concluded the circuit, “because the evidence at issue here was not a prior inconsistent statement and was not even relevant for impeachment purposes: It was admissible as evidence to rebut the testimony of Ms. Broadway.” Harris, 557 F.3d at 942-43.

The Harris case highlights that the purpose for offering a particular type of evidence is often fundamental to whether the evidence can be admitted. The distinction between impeachment and rebuttal evidence was central to resolving the admissibility of the utility records.

Federal Rules of Evidence