Circuit Consensus On Impropriety Of Cross-Examining Defendant As To Veracity Of Other Witnesses

In trial for mail fraud and theft from a program receiving federal funds, trial court error in permitting the prosecutor to cross-examine the defendant state legislator as to her opinion of whether other witnesses were lying and lacked veracity, however error did not rise to plain error; joining six other circuits on the impropriety of requiring a defendant to testify as to the veracity of other witnesses, in United States v. Schmitz, 634 F.3d 1247 (11th Cir. March 4, 2011) (No. 09-14452)

The Eleventh Circuit joined the First, Second, Third, Fifth, Seventh, and Ninth Circuits in finding that a prosecutor's questions on cross-examinaton of the defendant as to whether other witnesses -- specifically those telling a different story than the defendant -- are lying. The reasons for this limit on cross-examination are diverse, but carefully explained in a recent case by the Eleventh Circuit.

During defendant's trial for mail fraud and theft from a program receiving federal funds, the government presented various witnesses who testified as to the fictitious nature of entries on the defendant's account. After her conviction, the defendant appealed alleging, among other things, that the prosecutor had misconducted the trial by asking her while being cross-examined about her account, whether witnesses whose testimony differed from her account were lying. For example, in cross-examining the defendant, the following exchange occurred:

Excerpt Of Cross-Examination Of Defendant

Q (By the prosecutor):
[L]et's get a list going of everybody you say is lying, okay? Seth Hammett. He's a liar?
A:
I said I-what I answered was my answer is different from his. I never called him a liar.
Q:
Did he tell the truth when he said that you came to him and asked him to put money in the budget to fund your job?
A:
No, he did not.
Q:
He lied?
A:
. I never used the word “lie.”
Q:
Why not?
A:
I just don't like the word.
Q:
So he didn't tell the truth. Does that make you feel better?

Schmitz, 634 F.3d at 1267. After this exchange, the circuit noted that the "prosecutor then called out the names of twelve witnesses who had testified in the case and asked Schmitz if they should be added to the 'list' of purported liars. Each time Schmitz attempted to explain the discrepancy in testimony, the prosecutor repeatedly questioned her until he was able to force her to say whether a previous witness was telling the truth or whether the witness should be added to the 'liar list.'” Schmitz, 634 F.3d at 1267.

Because the defense did not object to this questioning, the circuit considered the issue under the plain error standard, concluding "there was error in the district court's decision to allow the prosecutor to require Schmitz to say whether other witnesses were lying." Schmitz, 634 F.3d at 1268. However, the error was not plain error.

In reaching this conclusion, the circuit specifically noted the following circuits as having "examined the propriety of questions posed to a criminal defendant about the credibility of government witnesses" and that "have found that such questions are improper:

  • First Circuit: United States v. Sullivan, 85 F.3d 743, 749-50 (1st Cir. 1996) (“counsel should not ask one witness to comment on the veracity of the testimony of another witness”)
  • Second Circuit: United States v. Richter, 826 F.2d 206, 208 (2d Cir. 1987) (“[T]he prosecutor asked Richter in a series of questions to testify that Lazzara was either mistaken or lying. This was improper cross-examination. Determinations of credibility are for the jury.”)
  • Third Circuit: United States v. Harris, 471 F.3d 507, 511 (3d Cir. 2006) (“Today, we follow our sister circuits and hold that asking one witness whether another is lying is inappropriate. Such questions invade the province of the jury and force a witness to testify as to something he cannot know, i.e., whether another is intentionally seeking to mislead the tribunal. In addition, as Harris' counsel explained during oral argument, such questions force defendants into choosing to either undermine their own testimony or essentially accuse another witness of being a liar.”)
  • Fifth Circuit: United States v. Williams, 343 F.3d 423, 437 (5th Cir. 2003) (“The government concedes that the prosecutor acted improperly by asking Williams about the other witnesses' veracity.”)/li>
  • Seventh Circuit: United States v. Thomas, 453 F.3d 838, 846 (7th Cir. 2006) (“Because the evaluation of witness credibility is the province of the jury, it is improper to ask one witness to comment on the veracity of the testimony of another witness.”) (quotation marks and citation omitted)
  • Ninth Circuit: United States v. Sanchez, 176 F.3d 1214, 1219-20 (9th Cir. 1999) (“the prosecutor's questions compelled Sanchez to give his opinion regarding the credibility of a deputy marshal, which was error”)
  • D.C. Circuit: United States v. Boyd, 54 F.3d 868, 871 (D.C. Cir. 1995) (“It is therefore error for a prosecutor to induce a witness to testify that another witness, and in particular a government agent, has lied on the stand.”)
  • Tenth Circuit: But see United States v. Williamson, 53 F.3d 1500, 1523 (10th Cir. 1995) (noting the reasoning in Richter was unpersuasive)

The Eleventh Circuit then explained why it joined the other circuits in concluding "it is improper to ask a testifying defendant whether another witness is lying." Four reasons were enumerated:

Requirements Of The FRE

The circuit noted various provisions indicating that:

the Federal Rules of Evidence do not permit such questions. While Rule 608(a) permits a witness to testify, in the form of opinion or reputation evidence, that another witness has a general character for truthfulness or untruthfulness, that rule does not permit a witness to testify that another witness was truthful or not on a specific occasion. Moreover, the were-they-lying questions have little or no probative value because they seek an answer beyond the personal knowledge of the witness. Fed. R. Evid. 602 (“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”).

Schmitz, 634 F.3d at 1268 (citations omitted).

In addition, the rules regarding relevance of evidence were implicated:

The were-they-lying questions are also not relevant because one witness's opinion that another person has or has not lied does not make it more or less likely that the person actually lied. Fed. R. Evid. 401. And, the were-they-lying questions distract the jury from the central task of determining what version of events is accurate in order to determine a defendant's guilt or innocence.

Schmitz, 634 F.3d at 1269 (citing United States v. Henderson, 409 F.3d 1293, 1299 (11th Cir. 2005) (“The Federal Rules of Evidence preclude a witness from testifying as to the credibility of another witness.”); Harris, 471 F.3d at 511 (stating that such questions “force a witness to testify as to something he cannot know, i.e., whether another is intentionally seeking to mislead the tribunal”)).

Invade Responsibilities Of The Jury

A second reason was that the "were-they-lying questions invade the province of the jury, as credibility determinations are to be made by the jury, not the testifying witness." Schmitz, 634 F.3d at 1269 (citing Snowden v. Singletary, 135 F.3d 732, 739 (11th Cir. 1998) (“Witness credibility is the sole province of the jury.”); United States v. Thomas, 453 F.3d 838, 846 (7th Cir. 2006) (“Because the evaluation of witness credibility is the province of the jury, it is improper to ask one witness to comment on the veracity of the testimony of another witness.”) (internal quotation marks and citation omitted)).

Innocent Conflicts In the Of Testimony

The third reason ventured by the circuit was that:

"the were-they-lying questions ignore other possible explanations for inconsistent testimony. Testimony can conflict for many reasons that do not involve a deliberate intent to deceive. There may be lapses in memory, differences in perception, or a genuine misunderstanding. The were-they-lying questions ignore all of these innocent explanations, and put the testifying defendant in a “no-win” situation: The defendant must either accuse another witness of lying or undermine his or her own version of events.

Schmitz, 634 F.3d at 1269 (citing Harris, 471 F.3d at 511 (stating that such questions unfairly “force defendants into choosing to either undermine their own testimony or essentially accuse another witness of being a liar”)).

Argumentative Questions

The Eleventh Circuit also disapproved of the questions because they were "argumentative, and often their primary purpose is to make the defendant appear accusatory." As the circuit noted:

The very structure of the question is designed to pit the testifying witness against every other adverse witness, suggesting to the jury that someone is deliberately deceiving the court and the jury must choose the culprit. While the jury must make credibility assessments in determining guilt or innocence, the were-they-lying questions do not serve this function but prejudicially force the testifying defendant to accuse or not.

Schmitz, 634 F.3d at 1269.

The circuit also rejected several prudential reasons against the bar on having defendants venture on the veracity of other witnesses. One could still examine a defendant as to the "differences and similarities between his testimony and that of another witness. This is permissible provided he is not asked to testify as to the veracity of the other witness.” We also recognize that were-they-lying questions might be proper “if a defendant opened the door by testifying on direct that another witness was lying.” Schmitz, 634 F.3d at 1270 (citing Harris, 471 F.3d at 512).

In conclusion, the circuit noted that the rule is not unyielding, as it was "essential ... to the proper functioning of the adversary system that when a defendant takes the stand, the government be permitted proper and effective cross-examination in an attempt to elicit the truth,” but this does not occur often. However, the bottom line was that "while we hold today that asking a criminal defendant whether another witness is lying is improper, we do not foreclose the possibility that, in the circumstances of a particular case, a question about the truthfulness of another witness may in some cases be appropriate." Schmitz, 634 F.3d at 1270. On the record before the court, the trial court erred in permitting the questions. Nonetheless, reversal was not warranted, since the error did not rise to the level of plain error.

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