Federal Evidence Review

In possession of a sawed-off shotgun trial, after the defendant's wife claimed the fiream was hers, admitting cross-examination testimony regarding why she previously told the police that the defendant was "aggressive"; the testimony was admissible under FRE 402 to show bias and a motive to lie based on her trial testimony, in United States v. Jamison, __ F.3d __ (7th Cir. March 18, 2011) (No. 10-1515)

It is a generally understood that a witness's bias is always relevant. Yet, the trial advocate cannot engage in a fishing expedition for possible bias. Instead, to make the question of bias relevant, the proponent of the evidence must lay a foundation as to relevance, particularly where it would not otherwise be clear. In a recent case the Seventh Circuit described a situation in which the government was allowed to probe a witness, who was the wife of the defendant, for the basis of her bias. In describing this situation, the court also isolated the significance of the foundation for probing possible bias.

In the case, defendant Jamison was charged with possession of a sawed-off shotgun after a disagreement with his wife. After he left the house, his wife "took the shotgun to the sheriff's department and turned it in, saying that it belonged to Jamison and that she did not want it in her home. Jamison came to the residence again on February 25 to pick up more of his things. Officer Travis Shively was called to the scene. Jamison concedes in briefing that Mrs. Jamison told Officer Shively that Jamison was there for the shotgun. At some point during Officer Shively's visit, Jamison indicated that the barrel may have been too short." Jamison, __ F.3d at __.

At trial, the defense called the defendant's wife to testify. Although she confirmed that she had turned in the shotgun to police, she now claimed that "she inherited the shotgun from her grandfather in the 1980s and that it belonged to her, not [to defendant] Jamison. The prosecution cross-examination of the witness established not only that they had separated before the incident, but that they had reunited at the time of the trial. The prosecution introduced the tape of the witness providing a "sworn, taped statement to law enforcement officers" when she turned in the weapon and that "she told police that the shotgun belonged to Jamison." She confirmed that she had reiterated this assertion up to the the trial. Jamison, __ F.3d at __.

According to the circuit, the root of the defendant's complaint about the trial centered around the prosecution's cross-examination of the witness on the following particulars:

The government asked whether Mrs. Jamison had previously told the police that Jamison 'raised his hand to you to intimidate you.' She admitted making the statement and said that her husband was 'an aggressive person,' but claimed that Jamison had never actually raised his hand to her and that her contrary statement to police was a lie. The government then asked the question that lead to this appeal: 'Could you tell us why you think that ... Jamison is aggressive?'... Mrs. Jamison answered by claiming that her belief was 'just based on a knowledge of a person's character,' not on any specific incidents.

Jamison, __ F.3d at __.

Upon his conviction, the defendant appealed contending that the trial judge "erred in permitting the government to ask Mrs. Jamison about her opinion that Jamison was aggressive." The circuit affirmed admission of the testimony as relevant to the witness's "bias and a motive to lie." Evidence of a witness's bias or motive to lie "is relevant and generally admissible" under FRE 402, concluded the circuit. Jamison, __ F.3d at __ (citing United States v. Abel, 469 U.S. 45, 52 (1984) (“Bias may be induced by a witness' like, dislike, or fear of a party, or by the witness' self-interest. Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony.”); United States v. Thompson, 359 F.3d 470, 475-480 (7th Cir. 2004)(“Questioning a witness' motives for testifying is precisely the type of inquiry permissible on cross-examination. The district court did not abuse its broad discretion in concluding that the evidence of threats and recent violence were probative of Shinnamon's credibility and bias. When admitted on cross-examination, this evidence of recent threats and violence was relevant and probative to demonstrate that Shinnamon, a witness who changed her pretrial testimony, was biased and therefore likely to slant or even fabricate her testimony in the defendant's favor.”); United States v. Manske, 186 F.3d 770, 777 (7th Cir. 1999))

The circuit also rejected challenges to the cross examination regarding whether the defendant was aggressive. Both the fact that the witness had told a different story about ownership of the gun before trial, "was relevant to her credibility and offered a potential explanation for her inconsistent statements" (i.e., as to ownership of the gun). The defendant's argument on appeal urged the circuit to vacate the defendant's conviction. This contention was based on the earlier Seventh Circuit case of Dudley v. Duckworth, 854 F.2d 967, 972 (7th Cir. 1988) (government's elicitation of threat evidence from a witness on direct examination was so prejudicial that its admission violated the defendant's constitutional right to a fair trial).

The circuit rejected this analogy. A more applicable case, that had more similarities with the defendant's case, was United States v. Thompson, 359 F.3d 470, 475-480 (7th Cir. 2004)(Permitting defendant's romantic partner to be questioned about inconsistent statements-one in an initial meeting with police before trial, the other at trial-about the defendant's ownership of ammunition). Dudley was not particularly applicable to the defendant because the earlier case involved "eliciting threat evidence on direct examination," rather than on cross-examination, as in defendant's trial. This distinction was crucial because evidence "of threats on direct examination, admitted even though the witness shows no indication of intimidation, is not only of extremely weak probative value, but it also could constitute a prejudicial attack on the opposing party. Such evidence can be highly prejudicial." Jamison, __ F.3d at __.

This differed from the defendant's trial in Jamison's case because the testimony from his wife under government cross-examination could "demonstrate bias" of the witness. In such a context, the probative value of such evidence was far more evident. Using bias or threat evidence "to challenge the credibility of a witness who has made an inconsistent statement simply does not raise the same concerns as evidence of a threat offered, in the absence of a testimonial inconsistency, simply to 'boost' a witness' testimony." Jamison, __ F.3d at __ (citing Thompson, 359 F.3d at 476-77)).Similarly, because the defendant's wife "made contradictory statements-one before trial, the other during trial-regarding whether she or Jamison owned the gun," the prosecution could pursue on its cross-examination why she "thought Jamison was aggressive."

The circuit also rejected the defendant's challenge to the foundation for the cross-examination questions to the witness: "We disagree. There was undoubtedly sufficient foundation: She voluntarily admitted that Jamison was 'an aggressive person' in response to an earlier question by the government, she acknowledged that she made a sworn statement to police that Jamison had raised his hand to her to intimidate her, and she explained that she and Jamison had been married for fifteen years at the time of the trial and that they dated for over three years before marrying." Jamison, __ F.3d at __ (footnote omitted). The circuit explained that no special foundational showing was necessary to introduce the prior threat evidence. According to the circuit:

"[W]e have 'explained that there is no special foundational requirement for bias evidence and the party attempting to demonstrate bias should be able to prove any fact logically relevant to bias.' A party eliciting bias evidence based on fear need not 'ask explicitly whether the witness was "presently afraid" or whether the witness felt "pressured to testify a certain way." We have mentioned that defendants seeking to elicit such evidence must inquire into the “who, what, why, where, and when of the specific incidents he claims give rise to bias.” But such questions were unnecessary in this situation. Here, the government asked merely why Mrs. Jamison thought Jamison was aggressive. It did not seek testimony about specific incidents and Mrs. Jamison did not discuss any. In response, Mrs. Jamison explained that her belief was 'based on a knowledge of a person's character' and that Jamison had not physically harmed her in any way. The district court did not err in permitting the government to elicit testimony regarding why Mrs. Jamison thought Jamison was aggressive.

Jamison, __ F.3d at __ (citations omitted).