Using Identification Evidence As Rebuttal Evidence

In trial of defendant for possessing marijuana with intent to distribute, admitting evidence that the defendant's could speak without a heavy Haitian accent because it was relevant in rebuttal to defendant's contention that apparent "inconsistencies between statements" he made to authorities upon his arrest with other physical evidence, documents and witness statements about his charged crime were a result of authorities simply misunderstanding what he was saying because of a heavy accent, in United States v. Jean-Guerrier, 666 F.3d 1087, __ (8th Cir. Feb. 2, 2012) (No. 11–1884)

After the truck in which he was riding with co-defendant Frazier was stopped trying to evade a drug check-point, the defendant and the co-defendant were arrested when agents discovered the truck carrying about 1000 pounds of marijuana. Frazier bargained for a plea of guilty and cooperated by testifying against the defendant at trial. The defendant's sole theory at trial was that he did not know of the marijuana in the co-defendant's truck and therefore lacked a necessary element for conviction of the charged crime.

While testifying at trial, the defendant, a native of Haiti, "spoke with a pronounced," "heavy" Haitian accent. His testimony was so difficult to understand that he:

was asked to repeat certain words due to counsel's difficulty in understanding him. During cross examination, the government asked Jean-Guerrier about his accent and whether he had told [arresting] Agent Chapman that he and Fraser had been transporting a load of noodles cross country. Jean-Guerrier denied making such a statement and indicated that Chapman may have misunderstood him due to his accent."
Jean-Guerrier, 666 F.3d at __.


The prosecution attempted to meet this defense by presenting testimony from witnesses that the defendant spoke without any accent at the time of his interrogation and arrest. This also included testimony from one of the court's security officers as a rebuttal witness. The officer testified that he had "heard Jean-Guerrier speaking without an accent on a cell phone during a trial recess" and that "he had been surprised hearing Jean-Guerrier speak with a foreign accent while testifying [at trial] because he had twice heard him speaking with no accent during trial recesses." This and other accounts of defendant's speech suggested that, while the defendant could speak with a heavy Hatian accent, he more often spoke in unaccented English that would pose no problems to understanding. The jury apparently took the evidence this way as well and it convicted the defendant.

The defendant appealed, contending in part, that the trial court erred by admitting the court security officer's testimony. In doing so, the court violated several of the Federal Rules of Evidence, including FRE 608(b) (which prohibits introducing extrinsic evidence of specific instances of a witness's conduct for the purpose of attacking his character for truthfulness," FRE 613(b) (limiting admission of extrinsic evidence of a prior inconsistent statement), and FRE 403 in that its "potential for unfair prejudice outweighed the probative value of the testimony."

The circuit rejected the defendant's arguments, noting that the evidence was properly considered as rebuttal evidence. As explaind by the circuit:

Rebuttal evidence "is offered to explain, repel, counteract, or disprove evidence of the adverse party." It is distinct from impeachment evidence which is "an attack on the credibility of a witness." Like all evidence, rebuttal evidence must be relevant to be admissible. On cross examination the prosecutor asked Jean-Guerrier "has your accent changed from [the night of Agent Chapman's interview] to today?" Jean-Guerrier responded "[h]ow am I going to change my accent?" When asked if his accent changed when he became excited, he answered "[o]nly you can tell me. I don't know." The prosecutor then asked Jean-Guerrier whether he had told Agent Chapman that he had been transporting a load of noodles, to which he responded "I did not . . . he probably misunderstood, you know, my accent."
Jean-Guerrier, 666 F.3d at __ (citing United States v. Harris, 557 F.3d 938, 942 (8th Cir. 2009) (citation omitted)).


This was relevant because of the defendant's testimony when cross-examined, in which he suggested "that he was incapable of changing his accent, ... implying that he always spoke with a heavy accent. The district court could have reasonably determined that Bates's testimony was offered to disprove or counteract this implication by providing evidence that Jean-Guerrier was capable of speaking without the heavy accent heard at trial." Jean-Guerrier, 666 F.3d at __.

But this was more than mere rebuttal evidence. It was evidence that went directly to whether the defendant "had knowledge that the truck contained marijuana. A key part of the government's case...." The circuit indicated that the defendant had, in essence, opened the door to this testimony:

By saying that Agent Chapman may have misunderstood him due to his accent, Jean-Guerrier attempted to cast doubt on the agent's testimony. [The security officer's] rebuttal testimony undermined any suggestion that the marked accent Jean-Guerrier spoke with at trial necessarily reflected his inability to be clearly understood during his earlier conversations with law enforcement."
Jean-Guerrier, 666 F.3d at __.


The circuit then rejected that FRE 608(b), FRE 613(b) and FRE 403 would have required exclusion of the evidence. Neither FRE 608 or FRE 613 applied because the security officer Bates's testimony was not extrinsic character evidence:

Rule 608(b)'s prohibition on the introduction of extrinsic evidence does not apply here because Bates's testimony was not offered to impugn Jean-Guerrier's veracity, but rather to witness how he had sounded while talking during trial breaks. Bates did not describe a situation in which Jean-Guerrier told a lie or engaged in conduct such as fraud that inherently involves untruthfulness. This testimony rather concerned Bates's own sense impression of Jean-Guerrier's manner of speaking. Rule 613(b), which governs extrinsic evidence of prior inconsistent statements, is also inapplicable because Bates testified about Jean-Guerrier's manner of speaking, not the contents of his speech."
Jean-Guerrier, 666 F.3d at __ (citations omitted).


The same went for defendant's objection to the evidence under FRE 403. The circuit rejected the defense suggestion that it was "extremely prejudicial because the jury could have developed a rapport with the security officer through possible interaction during the course of the trial. This theory is unsupported by evidence and also undermined by the fact that the district court took steps to ensure that the jury had no further contact with Bates following his rebuttal testimony." Jean-Guerrier, 666 F.3d at __.

Federal Rules of Evidence
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