In Ponzi scheme prosecution, admission of testimony by cooperating co-conspirator that he was a “moral, Christian man” on redirect after defendant had questioned the witness on why the jury should believe him did not violate FRE 610, in United States v. Dohan, 508 F.3d 989 (11th Cir. Nov. 28, 2007) (No. 06-14320) (per curiam), cert. denied, 553 U.S. 1032 (2008)
A little used Federal Rules of Evidence is FRE 610 concerning "[e]vidence of the beliefs or opinions of a witness on matters of religion" which are proffered to "show[ ] that by reason of their [the beliefs'] nature the witness' credibility is impaired or enhanced." A 2007 case in the Eleventh Circuit tends to suggest an "opening the door" approach to the propriety of testimony referring to religious belief.
In the case, Defendant Dohan was prosecuted for his role in a multi-defendant Ponzi scheme. During the trial, on redirect examination, one co-conspirator testified that the witness was a “moral, Christian man.” The defendant was convicted. He appealed and for the first time he claimed that the prosecutor sought religious expressions from the co-conspirator in order to vouch for that witness’s credibility and the witness’s reference to being a “moral, Christian man” violated FRE 610. Dohan, 508 F.3d at 992. The circuit disagreed. Because the issue was raised for the first time on appeal, the matter was reviewed for plain error and none was found. In reviewing the record, the circuit pointed out that the prosecution did not elicit this statement of belief on direct examination. Rather, the comment came unsolicited “upon the prosecution’s redirect examination, responding to defense counsel’s having questioned him on why the jury should believe him at trial when he had previously committed perjury and other bad acts.” Dohan, 508 F.3d at 992.
The circuit noted that the prosecutor in redirect did not try to show “that the witness’s credibility was enhanced by his religious beliefs,” as the defendant argued on appeal. Ironically, noted the circuit, the defendant not only failed to object to the questioning, but “attempted upon recross to ask his own impermissibly religious question” of the co-conspirator. In addition, the circuit found that the prosecution limited its closing argument so that it did not address the disputed statements. Dohan, 508 F.3d at 992-93.
While FRE 610 excludes evidence of a witness’ beliefs or opinions to show the credibility of the witness, such evidence may be admissible for other purposes. For example, the drafters noted that evidence of religious beliefs or opinions could be admitted to show interest or bias. See, e.g., ACN (1975) (“While the rule forecloses inquiry into the religious beliefs or opinions of a witness for the purpose of showing that his character for truthfulness is affected by their nature, an inquiry for the purpose of showing interest or bias because of them is not within the prohibition. Thus disclosure of affiliation with a church which is a party to the litigation would be allowable under the rule.”)