Federal Evidence Review

Defense efforts to admit post-arrest videotape of the defendant at the police station failed where (1) impeachment by contradiction did not apply since no inconsistency was established, and (2) the rule of completeness was not intended to “allow otherwise inadmissible evidence to be used to create doubt as to whether the admitted statement was ever made,” in United States v. Verdugo, _ F.3d _ (1st Cir. Aug. 19, 2010) (Nos. 08-2175, 08-2217)

Normally, a party cannot introduce their own statements. See generally A Party Wishing To Offer Its Own Exculpatory Statements Must Testify. However, the statements may be admissible for another purpose, such as for impeachment, as long as other evidence requirements are satisfied. The First Circuit recently considered two avenues by a defendant to admit his videotaped statement, as impeachment by contradiction, and under the rule of completeness.

In the case, defendant Verdugo was prosecuted for conspiring to distribute and possess with intent to distribute cocaine. After an extensive investigation, which included intercepted telephone calls with defendant Verdugo with other co-conspirators concerning drug transactions, a warrant was issued for the defendant’s arrest. Initially, the defendant waived his Miranda rights at the patrol car and denied participating in a particular drug deal. When he was confronted with his intercepted statements to a co-conspirator, he admitted delivering 29 kilograms of cocaine but claimed he did not receive any money. In an interview room at the police station, the defendant signed a written waiver of his Miranda rights. A videotape of the eight minute meeting was made. The defendant asserted his right to counsel and declined to acknowledge his earlier admission at the patrol car. At trial, an officer testified about the initial admission that the defendant made at the patrol car. No reference was made to the videotaped statement on direct examination. On cross-examination, defense counsel for the first time asked:

Defense Counsel: He [Verdugo] didn’t admit to anything [during the videotaped statement], either, am I correct sir?
Officer: I don’t know – he didn’t admit to it. He said he wanted a lawyer. He said, the only thing I can talk about is against myself. I’m not sure if he admitted it. But I know I talked to him about what we talked about on the scene. So I don’t know exactly what was admitted to on tape again. I don’t really remember. But I remember speaking to him. He didn’t deny what I talked about on the street, if that’s what you mean[,] sir.

Defense counsel then asked the trial court to play the videotape for the jury, contending the tame contradicted the officer’s testimony. The trial court declined, noting “what [the officer] . . . said about [the] interview is not inconsistent with what the video shows.” After the jury convicted the defendant, on appeal he claimed the trial court erred in disallowing the playing of the videotape.

Impeachment Theory

The First Circuit affirmed the trial court’s decision. The circuit noted that extrinsic evidence may be admitted to impeach a witness “if the extrinsic evidence concerns a subject that is not collateral to the issues being tried.” Verdugo, _ F.3d at _ (citing United States v. Cruz-Rodriguez, 541 F.3d 19, 30 (1st Cir. 2008) (“On appeal, Cruz needed to argue both that the evidence was admissible for some purpose and that the evidence was useful to impeach the government witnesses on a non-collateral matter. His failure to develop the latter argument results in waiver of this claim.”), cert. denied, 129 S. Ct. 1017 (2008)). In this instance, the videotape was inadmissible since it did not contradict the officer’s testimony. The circuit reviewed the videotape transcript, which provided:

[Officer] Naylor: I know we spoke for a few minutes on the street. And you said that you never brought any money back . . . that time. And were talking like that. I just wanna, you know . . . so I understand we talked about that on the street. And we talked about um. . [.] the 29 kilos that you brought there. That’s the stuff we talked about on the street. We’re not going to talk about this now, do you understand. Cause you’re saying now you need a lawyer. But on the street when you were talking to me about that . . [.] um, um . . [.] that’s why you’re being brought up here. Do you understand? That’s why we’re here from Rhode Island. You understand that[,] correct?
Verdugo: I don’t know what you’re talking about.

When the defendant did not acknowledge the earlier admission at the patrol car, “he did not deny his alleged role in the conspiracy” and the videotape was “consistent with [] Naylor’s testimony that Verdugo ‘didn’t deny what [Naylor] talked about on the street.’” Verdugo, _ F.3d at _.

Rule Of Completeness Theory

For the first time, the defendant claimed that the videotape was also admissible under the rule of completeness under FRE 106. This issue was reviewed for plain error, under FRE 103(d), in the absence of a trial court objection on this ground, and none was found. At the circuit noted:

The short answer to this claim is that Rule 106 does not apply to testimony about unrecorded oral statements such as the one that Verdugo gave to [Officers] Naylor and Cardello when he was arrested. United States v. Lopez-Medina, 596 F.3d 716, 734 (10th Cir. 2010). In any event, while the district court retained substantial discretion under Fed. R. Evid. 611(a) to apply the rule of completeness to oral statements, id., [defendant Verdugo] cites no case law that supports the use of the rule under these circumstances. The rule of completeness ordinarily comes into play when a statement is offered to explain another statement that is being admitted into evidence. See Fed. R. Evid. 106 advisory committee’s note (“The rule is based on two considerations. The first is the misleading impression created by taking matters out of context. The second is the inadequacy of repair work when delayed to a point later in the trial.”). It does not ordinarily allow otherwise inadmissible evidence to be used to create doubt as to whether the admitted statement was ever made.

Verdugo, _ F.3d at _.

The Verdugo case highlights two different avenues that were considered for playing the videotape at trial, both which turned out to be unavailing. First, the defendant failed to satisfy the impeachment by contradiction basis. Extrinsic evidence may be admissible where impeachment is warranted. See, e.g., Third Circuit Notes “Textbook” Example Of Impeachment By Contradiction; see generally Seventh Circuit Highlights Five Forms Of Impeachment. Finally, the rule of completeness did not apply merely to cast doubt on whether the original statement had been made. In sum, the underlying rationale of the rule was not promoted. See also Lopez-Medina, 596 F.3d at 734 n.12 (“its purpose is to prevent a party from intentionally misleading the jury by introducing a written or recorded statement in an inaccurate or unfair manner”).