Federal Evidence Review

In a 2008 cocaine conspiracy case, restricting cross-examination of cooperating witness so that it did not probe the sexual nature of the witness's prior conviction, which was admitted by the witness, incorporating by reference an earlier case that applied FRE 403 to allow the trial judge discretion to preclude such testimony, in United States v. Sturdivant, 513 F.3d 795 (8th Cir. Jan. 17, 2008) (Nos. 06-3831, 06-4063)

One of the finer points of reviewing evidence cases is that occasionally the court will not explicitly cite an evidence rule that is the foundation for its decision. The search for the court's application of a rule by its number occasionally may fail to display a relevant and helpful applications of a particular FRE. A case in point was a 2008 case of the Eighth Circuit, in which the court applied FRE 403 by implication.

In the case, defendant Sturdivant was arrested as a result of operations by the local Narcotics Task Force which was implementing a program of buying crack and powder cocaine from dealers. Sturdivant and his three co-defendants (Morrisette, Covington, and Armatis) were charged for drug-related offenses. At trial, several cooperating witnesses testified to seeing and participating in the defendant’s drug-related activities. Specifically, one cooperating witness, Brian Davis, testified to actions pertinent to the discovery and apprehension of the conspiracy. The defendant sought to cross-examine Davis about being “an accused sex offender,” which the trial court denied. Sturdivant 513 at 801. The jury convicted the defendant and he appealed, contending in part that the trial judge improperly restricted the scope of his cross-examination of Davis.

The Eighth Circuit affirmed the restrictions on the defendant's cross-examination of cooperating witness Davis. The circuit noted that it had previously “upheld an identical limitation of this same witness in nearly identical circumstances. The circuit disposed of the issue with the statement that "it was not a clear and prejudicial abuse of discretion for the district court to exclude evidence regarding the sexual nature of the Government’s primary witness’s conviction.’” Sturdivant 513 at 801-02 (citing United States v. Judon, 472 F.3d 575, 583 (8th Cir. 2007) (citing United States v. Ford, 17 F.3d 1100, 1103-04 (8th Cir. 1994))).

While it was not explicitly cited by the circuit in Sturdivant, it is clear that the ground for excluding the inquiry into the witness’s prior sex conviction was FRE 403. In citing United States v. Ford, 17 F.3d 1100, 1103-04 (8th Cir. 1994), the circuit referred to a case that excluded similar testimony on the grounds of undue prejudice.

In Ford, the Eighth Circuit explained:

“Ford contends that he should have been able to introduce evidence that [prosecution witness] McMullen had been convicted of a sex-offense against a minor. The jury was told that McMullen had a felony conviction but the court excluded the specific nature of the offense as overly prejudicial under Federal Rule of Evidence 403. ...

“We find that the exclusion in this case was not a clear abuse of discretion. It is true that a panel of this circuit has recently noted that ‘most jurors probably do not understand the range of offenses connoted by the term felony, and thus need to know the specific crime in order to evaluate its effect on credibility.’ Cummings v. Malone, 995 F.2d 817, 826 (8th Cir. 1993) (quotation omitted). However, the Cummings court also left open the possibility that ‘in an appropriate case [the trial judge] might exclude the names of specific crimes under Rule 403.’ Id. It is within the district court’s discretion to conclude that the nature of McMullen’s sexual offense might inflame the jury. The introduction of McMullen’s specific felony could easily have distracted the jury from its task without adding any real probative information to their deliberations.

“Ford was given an opportunity to vigorously crossexamine McMullen. He introduced the sex-offense conviction as an unspecified felony, and also introduced evidence of McMullen’s prior forgery conviction. Under the circumstances, we cannot say that excluding the specific nature of McMullen’s sex offense was an abuse of discretion. This is exactly the type of decision that Cummings left to the discretion of the trial judge under Rule 403. … Although McMullen was the primary prosecution witness, his testimony was corroborated by the law enforcement officers who monitored the transactions. Therefore we cannot conclude that the exclusion of the nature of McMullen’s felony conviction resulted in any prejudice to Ford.”

Each case in the string of cases cited with regard to FRE 403 discusses the rule. But in Sturdivant no direct reference to the rule was made. Yet it is clear from the circuit's discussion and from its citations that FRE 403 was the basis of its determination to affirm the exclusion of the contested cross-examination.