Federal Evidence Review

In applying FRE 608(b) in a kidnapping and robbery trial, the trial court erred in precluding cross-examination of a prosecution witness regarding a state appellate division's finding that the witness had lied under oath in a suppression hearing in another case, unduly restricting the defendant's right to probe specific instances of the witness's misconduct affecting the witness's character for truthfulness under FRE 608(b); however, error was harmless based on other evidence, in United States v. Cedeño, _ F.3d _ (2d Cir. May 2, 2011) (Nos. 09–1857–cr(L), 09–1908–cr(con), 09–1909–cr(con), 09–2096–cr(con))

Long before the adoption of the Federal Rules of Evidence, the Ninth Circuit noted a question that continues to arise, even with the national codification of evidence law. The circuit asked in a case in which the witness was alleged to have used false names in the past:

The issue is whether the use of false names bears directly enough upon the witness' veracity as to outweigh the general prohibition against cross-examining about particular acts of misconduct other than convictions of a crime. We think it does. If a man lies about his own name, might he not tell other lies?

Lyda v. United States, 321 F.2d 788, 793 (9th Cir. 1963). The question underlies the principles reflected in FRE 608(b), which provides that a party may not attack a witness's creditability by examining the witness about specific instances of misconduct, unless that misconduct resulted in a conviction or is probative of truthfulness. Of concern both before and after the promulgation of the FRE was the issue of what type of incidents, short of conviction, had anything to do with the witness's character for truthfulness? The Second Circuit recently considered a case exploring the scope of FRE 608(b). In doing so, the circuit clarified circuit law about the factors to be used in applying the rule.

In the case, defendant Cedeño was prosecuted for kidnapping and robbery. Prior to trial, the government filed a motion in limine seeking a limit of defense cross-examination of a prosecution witness, Detective Goldrick. Specifically, the motion asked that a credibility finding about the witness reached by a state appellate division (Appellate Division of the Supreme Court of New York) not be questioned. Basically, the state court noted in an opinion regarding the witness's testimony in a state suppression hearing "that Goldrick had lied" in testifying about the "constitutionality of a search, the issue before the Appellate Division." In defendant Cedeño's trial, the judge granted the government's motion restricting cross-examination, reasoning that there was an "absence of any connection between the [lying] ... in the case before the Appellate Division" and his testimony against defendant Cedeño. Cedeño, __ F.3d at __. Following his confiction, the defendant challenged the limitations imposed on cross-examination.

The Second Circuit concluded that this restriction was an error, but that it was ultimately harmless. The circuit noted that the trial judge used a too narrow reading of circuit precedent on the application of FRE 608(b), citing specifically a misreading of the case of United States v. Cruz, 894 F.2d 41 (2d Cir. 1990) (In drug conspiracy trial, restricting defense counsel to cross-examining a government informant about his testimony during a sentencing of an unrelated case or to use a transcript of that sentencing in which the judge found the informant's testimony was not credible; because “[t]he transcript … reflects only a finding that [the informant] lacked credibility as to his testimony in that case, not that he was lacking in veracity generally.... [i]n the absence of any connection between the subject of [the informant's] testimony in [the earlier case] and his testimony in the case at bar, it cannot be said that [the trial judge's] finding as to the former is relevant in any way to a resolution of the issues in [this] case.”).

In Cedeño, the circuit found that the trial judge's reading and application of Cruz was much too restrictive. The circuit noted that the trial judge had construed Cruz to "set our a rigid two-part test" for the application of FRE 608(b). The circuit denied that it had done so, clarifying that in Cruz, "[w]e held that the trial court acted 'within its discretion' in refusing to admit the transcript of a prior proceeding in a different court where a different judge had found the witness not credible. We noted that the prior court found that the witness was lacking credibility only in the prior case and not in general, and that there was no connection between the testimonies in the two cases. We did not hold or suggest, however, that these were the only factors to be considered or that they were determinative factors" with regard to application of FRE 608(b). United States v. Cruz, 894 F.2d 41, 43 (2d Cir. 1990). Rather, Cruz served only to sate that two factors were "sufficient to avoid a finding of abuse of discretion on the particular facts of that case only; it did not hold that consideration of these two factors is sufficient to avoid such a finding in all cases. Indeed, it is not." The circuit warned that a too "rigid application of Cruz could unduly circumscribe both a trial court's discretion in a manner 'contrary to the plain meaning of Rule 608(b)(1),' and a defendant's right under the Confrontation Clause to an effective cross-examination" of the witness against him. Cedeño, __ F.3d at __ (quoting United States v. Brown, 69 F.Supp.2d 518, 519 n.1 (S.D.N.Y. 1999)).

The Second Circuit pointed to numerous instances when "this Court has previously upheld a district court's ruling that a witness could be cross-examined based on 'prior occasions when his testimony in other cases had been criticized by [a] court as unworthy of belief.'” Cedeño, __ F.3d at __ (quoting United States v. Terry, 702 F.2d 299, 316 (2d Cir. 1983)). Instead, the circuit held that the trial judge erred in defendant Cedeño's case when it limited its analysis of the motion in limine to only the two factors cited in Cruz:

We hold that the district court erred in limiting its analysis to the two factors discussed in Cruz without considering other factors affecting the probity and relevancy of a prior court's finding that a witness had lied. The district court could have also considered, for example: (1) whether the lie was under oath in a judicial proceeding or was made in a less formal context; (2) whether the lie was about a matter that was significant; (3) how much time had elapsed since the lie was told and whether there had been any intervening credibility determination regarding the witness; (4) the apparent motive for the lie and whether a similar motive existed in the current proceeding; and (5) whether the witness offered an explanation for the lie and, if so, whether the explanation was plausible. Here, for example, the Appellate Division found that Goldrick expressly contradicted an incident report he wrote on the day of the arrest and that his effort to explain the contradiction was “unconvinc[ing].” Miret–Gonzalez, 159 A.D.2d at 648–50. Indeed, the district court felt that the prior judicial finding was sufficiently relevant to permit cross-examination on this basis at the suppression hearing.

Cedeño, __ F.3d at __ (footnote omitted) (citing United States v. Dawson, 434 F.3d 956, 959 (7th Cir.2006), aff'g on reh'g, 425 F.3d 389 (7th Cir. 2005); United States v. Whitmore, 359 F.3d 609, 619 (D.C.Cir. 2004); Hynes v. Coughlin, 79 F.3d 285, 293–94 (2d Cir. 1996); United States v. Terry, 702 F.2d 299, 316 (2d Cir. 1983)).

However, in light of other properly admitted evidence, the exclusion of the cross-examination of the witness about the state credibility finding was harmless. Cedeño explains that FRE 608(b) is read much more broadly in the Second Circuit, reflecting in many ways an iteration suggested by McCormick's Evidence :

[T]he danger of victimizing witnesses and of undue prejudice to the parties has led most of our courts which permit the showing of acts of misconduct under the rules mentioned above, to recognize that cross-examination concerning acts of misconduct is subject to discretionary control by the trial judge. Some of the factors that may, it seems, sway discretion are (1) whether the testimony of the witness under attack is crucial or unimportant, (2) the relevancy of the act of misconduct to truthfulness, depending upon the rule followed in the jurisdiction in that respect, (3) the nearness or remoteness of the misconduct to the time of trial, (4) whether the matter inquired into is such as to lead to time-consuming and distracting explanations on cross-examination or re-examination, (5) whether there is undue humiliation of the witness and undue prejudice.

McCormick, Evidence § 41 at 139-40 (4th ed. 1992).