Federal Evidence Review

In trial for use of an unauthorized access device, and aggravated identity theft, involving the victim's Bank America Credit Card, after the defendant testified that the victim consented to his use of her credit card, the prosecution cross-examined the defendant regarding the defendant's use of a different credit card of the victim; this was appropriate impeachment evidence under FRE 608(b), not FRE 404(b) evidence in conformity with character, in United States v. Bayard, __ F.3d __ (1st Cir. April 15, 2011) (No. 10-1112)

FRE 608 provides that the district court with the discretion to exclude evidence that is not probative of truthfulness or untruthfulness of a witness. The admission of this type of evidence is also restrained through FRE 403. But while a witness's credibility is always at issue, this does open the door to unlimited exploration of the matter. FRE 608 constitutes a limit on the range of inquiry the court may allow. While FRE 404 excludes character evidence generally, FRE 608 operates as an exception to FRE 404, focusing on evidence of a witness's character or conduct. In a case decided last week, the First Circuit examined the relation of FRE 404(b) and FRE 608(b), explaining some of the similarities and differences between the two rules in their nature and operation.

In the case, defendant Bayard was charged with use of an unauthorized access device and aggravated identity theft. The basis of these charges were grounded in an arrangement worked out between the defendant and his victim, a widow thirty years senior to the defendant. Apparently, the defendant acted as the victim's keeper -- her "driver, repairman, grocery shopper and, as her health waned, full-time caretaker. Some of these tasks required monetary outlays and, although the precise nature of their financial arrangement is unclear, it appears that Bayard used her credit cards. One of those credit cards—a Bank of America Visa card (the “BofA Card”)—is at the center of this case." Bayard, __ F.3d at __.

After manifesting symptoms of "severe dementia," the victim was hospitalized for "several months" and died. However, after her death the Bank, unaware of the death, sent to her address where the defendant was still living a re-issued BofA Card. The defendant then used the card for a variety of expenses, including a "a three-month trip to a resort in New Zealand." Upon his return to the United States the defendant was indicted with use of an unauthorized access device and with aggravated of the victim's identity. Apparently, "the focal point" fo the defendant's trial was his sue of the BofA Card after the victim's death. According to the paperwork, the victim was the only authorized user of the account and he "had no power of attorney over" the victim's financial affairs. In his defense, the defendant took the stand and testified that the victim had "specifically authorized him to use the BofA Card as well as her other credit cards, not only for her benefit but also for his, that the victim had bequeathed $20,000 to the defendant and that the expense of the trip to New Zealand were akin to "advances on money owed" to him by the victim. The jury was unimpressed with his contention and convicted the defendant.

The defendant appealed, citing as error the trial judge's decision not to exclude the cross-examination of the defendant regarding the use of the credit cards, as violating FRE 404(b). The government pointed to FRE 608(b) as a justification for the cross-examination of the defendant -- the "limited line of questioning on cross-examination [by the prosecution] was permissible under Federal Rule of Evidence 608(b), because it sought only to impeach [defendant]'s credibility. The court agreed, "adding that in this context the value of the government's proposed inquiry outweighed any possible prejudice that might result. [The defendant] declined a limiting instruction." As a result the government was able to cross-examine the defendant about the credit card authorizations, including use of one card that was not charged (Chase Bank Card).

One focus of the defendant appeal was whether the government's cross-examination regarding the authorization of the credit cards. Specifically, he objected to the prosecution's questions on whether the defendant was also authorized to use other credit cards, such as the victim's Chase Card. The defendant argued that this questioning "about the Chase Card violated Rule 404(b)." The circuit disagreed, noting that "[b]y its very terms, Rule 404(b) prohibits the admission of a prior bad act to prove the character of a person "in order to show conformity therewith.”

But the government's cross-examination of the defendant was "for the limited purpose of attacking [defendant's] character for truthfulness" and was guided by FRE 608(b), not FRE 404(b); this was "a different purpose that invokes a different rule." Bayard, __ F.3d at __ (citing United States v. Simonelli, 237 F.3d 19, 22–24 (1st Cir. 2001) (discussing interplay between Rules 404 and 608; explaining that the latter “‘is centrally concerned with character for veracity, a mode of accrediting or discrediting the witness that is based on the same ‘propensity’ reasoning of Rule 404 but is subject to quite different rules.'“ ))

But while the questioning about the use of the BofA card was possible under FRE 608(b), the matter was not as certain for the questioning about the defendant's use of the Chase Card. The circuit concluded that the defendant waved this issue because his papers on appeal failed to address it. Accordingly, the permissibility of the questioning turned to the FRE 403 balancing test, which the court quickly examined. According to the circuit: "Rule 403 states that relevant evidence 'may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury.' We have characterized Rule 403 judgments as 'battlefield determinations' subject to 'great deference,' and '[o]nly rarely—and in extraordinarily compelling circumstances—will we, from the vista of a cold appellate record, reverse a district court's on-the-spot judgment concerning the relative weighing of probative value and unfair effect.” Bayard, __ F.3d at __ (citing United States v. Shinderman, 515 F.3d 5, 17 (1st Cir. 2008)).

As explained by the circuit, there was:

"no abuse of discretion here. [Defendant] does not adequately explain why his conduct surrounding the Chase Card was not probative of his credibility, so we assume without deciding that it was. He does argue that the risk of unfair prejudice was high, but we disagree. Our review of the government's cross-examination reveals that it was far from inflammatory. It was also quite short and limited in scope to what the government had proposed at the sidebar. And, as noted, Bayard declined the district court's offer to give a limiting instruction. See Shinderman, 515 F.3d at 17 (“Furthermore, the court offered to give a limiting instruction; that the defendant eschewed this course does not minimize the value of the court's offer.”). Given these circumstances, we are reluctant to second-guess the district court's judgment in allowing cross-examination to proceed.