Federal Evidence Review

In felon in possession of a firearm trial, the prosecution’s failure to disclose to the defendant the criminal history of a key witness violated the defendant’s due process rights under Brady v. Maryland, 373 U.S. 83 (1963); the criminal convictions were admissible under FRE 609 and the prior acts of theft or dishonesty were admissible under FRE 608(b), in United States v. Price, 566 F.3d 900 (9th Cir. May 21, 2009) (Nos. 05-30323, 06-30157)

A recent Ninth Circuit case highlights the importance of disclosing impeachment evidence and the consequences of failing to do so. The prosecutor requested a criminal history check on a key government witness. The prosecutor indicated he was unaware of the criminal history which was not disclosed to the defense. The defendant was convicted and subsequently the criminal history evidence came to light.

In the case, a car with four occupants was pulled over after officers noticed two men in the back seat who were known to have outstanding parole-violation warrants. As the car responded to the signal to stop, three officers saw defendant Price bend over and appear to put something under the front driver’s seat. During the stop, an officer found a gun under the front seat. Price was found to possess about seven grams of marijuana. Defendant Price was charged with being a felon in possession of a firearm, possession with intent to distribute marijuana, and carrying a firearm in relation to drug trafficking.

At trial, the government called witness Phillips who testified “that approximately fifteen minutes before Price was pulled over he was with her and some friends at her aunt’s home when she saw a gun tucked into the waistband of his pants.” Price, 566 F.3d at 902. The defense vigorously cross-examined Phillips concerning her observations and memory. The jury convicted the defendant of the felon in possession charge, and a lesser included offense of simple possession of marijuana, and acquitted on the remaining counts. The court sentenced him to 92 months in prison.

In a subsequent case, defendant Price’s brother was charged with witness intimidation after Phillips claimed he threatened her outside the courthouse. During this proceeding, Phillips’ criminal history was disclosed, including three arrests involving theft, a report concerning theft by deception, and three false-license tag violations for “[i]llegal alteration or display of plates”. Learning of this development, defendant Price moved for a new trial based based on the failure of the government to disclose the criminal history under Brady v. Maryland, 373 U.S. 83 (1963). The prosecutor ultimately testified that he could not recall whether the criminal history was provided by the investigator. The district court denied the motion for a new trial since the defendant had not established “that the prosecutor personally had evidence in his possession that would have revealed Phillips’ extensive history,” and alternatively no prejudice was shown.

The Ninth Circuit reversed the denial of the motion for a new trial. The circuit noted that:

“the prosecutor utterly failed in his ‘duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.’ Under longstanding principles of constitutional due process, information in the possession of the prosecutor and his investigating officers that is helpful to the defendant, including evidence that might tend to impeach a government witness, must be disclosed to the defense prior to trial. It is equally clear that a prosecutor cannot evade this duty simply by becoming or remaining ignorant of the fruits of his agents’ investigations. Because, here, the prosecutor failed to fulfill his duty to learn of and disclose favorable evidence that likely was in the possession of his lead investigating officer, and because the evidence of Phillips’ criminal history is material, we hold that the prosecutor violated Price’s rights under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny.”

Price, 566 F.3d at 903 (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)).

The undisclosed criminal history evidence was admissible as impeachment. The circuit agreed with the district court that the “[i]llegal alteration or display of plates,” under Or. Rev. Stat. § 803.550 (2007), “were admissible for purposes of impeachment. Cf. Fed. R. Evid. 609(a)(2).” The circuit then considered the admissibility of the arrests for theft and a report of theft by deception. The circuit rejected the government’s argument that this conduct could not be considered since it was inadmissible for impeachment based on prior convictions, under FRE 609. The admissibility of this evidence was measured under FRE 608(b), and was admissible. Price, 566 F.3d at 912 (citing United States v. Osazuwa, 564 F.3d 1169, 1175 (9th Cir. 2009) (“Rule 608(b) permits impeachment . . . by specific acts that have not resulted in a criminal conviction. Evidence relating to impeachment by way of criminal conviction is treated exclusively under Rule 609.”)); see also recent post covering Osazuwa.

While the evidence was admissible for assessing the Brady violation, the circuit added that prior acts of theft or dishonesty are not always admissible under FRE 608:

“We do not suggest that evidence of a witness’s prior thefts or other dishonest conduct will always be admissible under Rule 608(b) or even that it should ordinarily be admissible against a defendant in a criminal trial. Moreover, the district court’s decision to admit such evidence must not constitute an abuse of discretion. E.g., United States v. Scott, 74 F.3d 175, 177 (9th Cir. 1996). Specifically, where a defendant takes the stand in his own defense, courts must be especially careful to weigh the value of any evidence the prosecutor might adduce under Rule 608(b) against the strong possibility that evidence of prior crimes will improperly prejudice the jury by causing it to believe that, if the defendant committed other crimes, he is therefore more likely to be guilty of the crime for which he is on trial. See Fed. R. Evid. 403, 404(b). In such instances, courts must bear in mind that ‘Fed. R. Evid. 403 modifies . . . rule [608(b)] by providing that otherwise admissible and relevant evidence may be excluded if the court determines that its probative value is substantially outweighed by the danger of unfair prejudice.’ United States v. Geston, 299 F.3d 1130, 1137 n.2 (9th Cir. 2002).”

Price, 566 F.3d at 912 n.13.

Given the importance of the witness testimony to the case, the impeachment evidence would have allowed the jury to assess her credibility. The government also emphasized the witness testimony during closing argument. The circuit concluded that there was a reasonable probability the undisclosed evidence would have affected the outcome. Consequently, the defendant’s due process rights were violated by the non-disclosure of this admissible evidence.

Apart from disclosure issues and obligations noted by the circuit, the Price case raises some interesting questions about the admissibility of criminal history evidence for key witnesses for impeachment purposes. While the court notes that prior acts of theft or dishonesty are not always admissible, in this case they were.