Federal Evidence Review

Sixth Circuit concludes that once the defense raised an “inference of misidentification,” the government could rebut the inference, in United States v. Caraway, 411 F.3d 679, 683 (6th Cir. 2005)

What triggers the opportunity to introduce rebuttal evidence? Some evidence offered by an opposing party is fairly straightforward in determining whether rebuttal evidence may be admitted. Other evidence, including evidence that raises an inference, presents a closer question. The Sixth Circuit considered a challenge to the introduction of rebuttal evidence.

In the case defendant Caraway was prosecuted for being a felon in possession of a firearm. In responding to a report of a stolen vehicle, one officer went to talk with an individual who was walking away and then ran. When the officer found the individual behind a shed, he saw a gun. After being ordered to drop the gun, the individual pointed it towards the officer, ran and then dropped the gun. The individual attempted to scale a fence, and shed his jacket and shirt in evading the officer. Eventually, he was observed under a SUV and was arrested. The gun and clothing were recovered.

Initially, state charges of evading arrest, unlawful possession of a weapon, aggravated assault, assault, and resisting official detention were filed. When the officer who pursued the defendant could not identify the defendant at a preliminary hearing, the state charges were dismissed. Subsequently, the officer refreshed his recollection after reviewing the defendant’s booking photo. A federal charge of being a felon in possession of a firearm was filed. The theory of the defense was misidentification. At trial:

“The defense called Ms. Tonya Rice, a property clerk on duty when Mr. Caraway was booked, who testified that he was wearing two black t-shirts and a gray pair of pants at the time he was booked. In rebuttal, the prosecutor recalled Officer Weddle to the stand. Weddle again testified that Mr. Caraway had been wearing a brown jacket and long-sleeved shirt, but that they were removed when the two men struggled the night of Mr. Caraway's arrest. Officer Weddle further testified that the jacket and shirt were taken to the evidence room of the Memphis police department that evening. The prosecutor also introduced the jacket and shirt into evidence. Defense counsel objected to the testimony and the introduction of the jacket and shirt, on the grounds that the rebuttal was improper. The district court overruled the objection.”

Caraway, 411 F.3d at 681. The jury convicted the defendant and he was sentenced to 302 months’ in prison. On appeal, he challenged the admission of the rebuttal evidence.

The circuit affirmed the admission of the rebuttal evidence. As the circuit explained:

“Generally, a district court must exercise reasonable control over the mode and order of presenting evidence with the goal that the presentation be effective for ascertaining the truth. Fed. R. Evid. 611(a). Evidence introduced on rebuttal serves to ‘rebut new evidence or new theories proffered in the defendant's case-in-chief,’ and is not limited by the fact that the plaintiff could have introduced the proffered evidence in his case-in-chief.

“The district court has broad discretion to determine the scope of rebuttal in admitting evidence, and in this case it was clearly within the district court's discretion to admit the evidence in question. When Mr. Caraway raised the inference of misidentification through the testimony of the property clerk who described the items Mr. Caraway was wearing when he was booked, the government was entitled to introduce the jacket and shirt to rebut that inference. The Government did not have to negate the testimony of the property clerk in its case-in-chief and the district court did not abuse its discretion by allowing the jacket and shirt into evidence to question the defense's theory of misidentification.”

Caraway, 411 F.3d at 683 (citations omitted).

For prior posts noting the role of rebuttal evidence, see Eighth Circuit Explains Distinction Between Impeachment And Rebuttal Evidence; “Rebuttal” Witness Cannot Be Used To Clarify Evidence Offered In Case In Chief.