Federal Evidence Review

In drug prosecution cases, the Fourth and Eighth Circuits find no error in the excluding impeachment cross-examination by the defense of arresting officers about unrelated misconduct allegations, citing the FRE 608(b) limitation that the evidence be probative of a witness's veracity in the particular case on trial and FRE 403's requirement that the probative value of the evidence to the witness's credibility not be substantially outweighed by confusion of issues, undue delay and waste of time, in United States v. Robinson, __ F.3d __ (4th Cir. Dec. 1, 2010) (No. 09-4276) and United States v. Alston, __ F.3d __ (8th Cir. Dec. 6, 2010) (No. 10-1478)

During the first week of December 2010, two circuits weighed in on application of FRE 608(b) impeachment of a prosecution witness by cross-examination using specific acts probative of the witness's truthfulness or untruthfulness. Both circuit's discussion of the rule's application emphasized that the proffered impeachment evidence and examination not relate to the defendant's general veracity, but rather that it be narrowly confined to showing the likelihood of untruthful testimony given the nature and specifics of the case under trial. Both cases appear to require the proffered impeachment evidence be something not of a general nature, but that it be capable of undermining the witness's testimony in the case.

Eighth Circuit: United States v. Alston

In the case, Defendant Alston was convicted of possessing with intent to distribute cocaine base and cocaine, based in large part by testimony of arresting police officers, their seizure of evidence at the scene, as well as a confession the defendant made to an investigating detective after his arrest, in which the defendant "admitted that the drugs and paraphernalia in the hotel room [where the defendant was arrested] were his and that he had been distributing them." Alston, __ F.3d at __. The jury rendered a guilty verdict based on this evidence and the defendant appealed.

The defendant's appeal focused in part on his contention that the trial judge improperly limited the defense cross-examination of the officer who alleged that the defendant confessed to him to be distributing the seized drugs. The court refused to allow cross-examination of the officer [Detective Napier] regarding Napier being fired from the county police force. The offer of proof by the defendant on this was that several years before the trial, the witness was "fired because an interim chief thought that he lied about being reported by another officer that he took the cuffs off of a person and said, ‘I'm going to let you fight me,’ and I don't know how it got started, but he was dismissed where other officers were not. And I have had it related to me by other defense attorneys that this is a sign that he lied to his chain of command.” Alston, __ F.3d at __.

The Eighth Circuit found no error in exclusion of the proposed cross-examination, based on the following observations:

• Limits Of FRE 608(b)(1): The circuit noted that allowing the proposed cross-examination by the defendant of the officer violated the specific requirements of FRE 608(b) that impeachment by specific instances of misconduct of a witness be "inquired into on cross-examination ... concerning the witness' character for truthfulness or untruthfulness...." In applying this standard, the circuit concluded: "the proffered hearsay evidence is not all that probative of Detective Napier's character for truthfulness, even if it is true that Detective Napier lied to his superiors.... It is evidence of an isolated event of a different character from the one at issue here," as the alleged impeachment evidence went to whether the witness "allegedly lied to protect himself from punishment" rather than whether the witness was "essentially ... invent[ing] a complex confession to secure a drug conviction. The difference in motive is clear, and that difference lowers the probative value of the [proffered impeachment] evidence."Alston, __ F.3d at __(citing FRE 608(b)(1))
• Application Of FRE 403: The circuit noted that the limitation on cross-examination to matters concerning the witness's character for truthfulness or lack of it ensured that the court trial did not devolve into "'mini-trials on peripherally related or irrelevant matters’" and that the FRE "403 balancing of probative value versus prejudicial effect is an integral step toward a determination of admissibility" of FRE 608(b) impeachment evidence. Alston, __ F.3d at __ (quoting United States v. Martz, 964 F.2d 787, 789 (8th Cir. 1992). The circuit noted that exclusion of the proposed impeachment cross-examination would make little difference in light of the considerable "other evidence in this case [which] circumscribes the importance of Detective Napier's testimony" as it presented a strong showing of the defendant's guilt -- so that admission of the impeachment evidence would not eliminate the strong showing of the defendant's guilt.
• Inadequate Foundation: In distinguishing the defendant's case from a previous case in which the D.C. Circuit had found a court erred in limiting defense cross-examination of an officer, the circuit noted that there was a firmer basis for probative inquiry. In the D.C. Circuit's case, the proffer was that "a judge had opined on the record in a previous case that the judge believed the witness had lied under oath" and this was "a much firmer basis upon which defense counsel could justify cross-examination than the basis offered by Alston's counsel in his offer of proof." In addition, the circuit noted that a foundation for FRE 608(b) impeachment was that the proponent of impeachment "must be in possession of some facts which support a genuine belief that the witness committed" the impeachable conduct. In Alston's case, the Eighth Circuit concluded that no "document and no such facts" supporting impeachment existed other than speculation among defense attorneys, particularly in light of documentary evidence proffered by the prosecution that the witness had been reinstated with "no mention of ... having lied about the incident. A second documentary exhibit was a letter from the chief of the employing poilice department that noted a review of the detective's file disclosed "no incident concerning untruthfulness" as the defense attorney speculation postulated. Alston, __ F.3d at __ (citing United States v. Whitmore, 359 F.3d 609, 621-22 (D.C. Cir. 2004) (reversing conviction because of error in limiting defense counsel's cross-examination of a government witnesses)).

Fourth Circuit: United States v. Robinson

Coincidentally, the Fourth Circuit also addressed a question of FRE 608(b) impeachment evidence. In United States v. Robinson, __ F.3d __ (4th Cir. Dec. 1, 2010) (No. 09-4276), the circuit considered the appeal of a defendant convicted of drug trafficking and firearms offenses. After trial, the defendant learned that several of officers who had testified against him had been fired by the county's narcotics unit in which they worked because of misuse of county money for personal expenses - such as purchasing alcoholic drinks, paying dancers and taking home confiscated alcoholic beverages seized by the department. The alleged misconduct did not involve any action in the investigation of the defendant. But the defendant sought a new trial, so that this evidence could be considered as impeaching the officer's testimony. The circuit affirmed the district judge's eventual denial of a new trial. On certain counts that were not based on the evidence adduced by the accused officer's, the evidence was excluded as not having any relation to any misconduct in proceeding with the defendant's case. While the court ordered retrial of the remaining counts in which the charged officers testified, the "government successfully moved to withdraw them." Robinson, __ F.3d at __.

The Circuit found no error in this because "[t]he dismissed officers' testimony was amply corroborated by that of other law enforcement officials and [defendant] Robinson's associates. Moreover, the officers' misconduct, while serious, did not relate to Robinson's case or to the truth-finding function of the criminal proceeding." Robinson, __ F.3d at __. The proffered impeachment evidence failed to satisfy FRE 608(b) as it “involved ... unrelated [matters], with issues that had no bearing on those at [the defendant's] trial.” Robinson, __ F.3d at __ (citing United States v. Custis, 988 F.2d 1355, 1359-60 (4th Cir. 1993)).

The circuit concluded that the evidence proffered did not satisfy the requirements of FRE 608(b) and it:

"throws into stark relief the problems associated with unrelated misconduct evidence in general and retrials based on such evidence in particular. Misconduct evidence like this, which involved witnesses in Robinson's case but did not relate to those witnesses' investigation of that case, is likely to push the parties toward miniature credibility trials and to cut into the limits the Rules of Evidence place on information about diversionary and subsidiary issues."

Robinson, __ F.3d at __.

In addition, the circuit noted that even if it clearly impeached the witnesses, the evidence would not have resulted in a different result than a finding of the defendant's guilt. Other police units independent of the unit of the charged officers "did the lion's share of the work on the ... convictions." Indeed, the circuit cited an "impressive amount of evidence against [the defendant] from other sources," had been introduced at trial so that "[e]ven when one eliminates all traces of evidence from the dismissed officers, there remains overwhelming evidence of Robinson's guilt." In rejecting the defendant's appeal, the circuit concluded that "[i]t strains credulity to claim that evidence regarding the unrelated misconduct of a few of the officers who testified at Robinson's trial could have undermined Robinson's thoroughly demonstrated guilt." Robinson, __ F.3d at __.