Circuit Consensus On Sixth Amendment Limit To Cross-Examination

In drug possession with intent to distribute marijuan trial, Tenth Circuit identifies circuit consensus on conditions giving rise to a defendant's right, under the Sixth Amendment, to cross-examine a witness regarding prior judicial findings that the witness had a lack of credibility; conviction is reversed based on error in excluding cross-examination concerning adverse judicial credibility ruling in a prior case, in United States v. Woodard, __ F.3d __ (10th Cir. Nov. 9, 2012) (No. 11–2244)

The Federal Evidence Blog previously addressed cases concerning the admissibility of evidence regarding an arresting officer's lack of credibility. See Impeaching A Witness Based On That Witness's “Unworthy Of Belief” Testimony In An Prior Unrelated Proceedings ; Second Circuit Finds FRE 608(b) Was Applied Too Narrowly. Last week, the Tenth Circuit reached asimilar conclusion, when it joined with the Second Circuit on applying factors giving rise to the right to cross-examine a witness regarding prior findings on lack of credibility.

In the case, defendant Woodard, a retired trucker who occasionally freelanced for his former employer, was arrested for having over 100 kilograms of marijuana concealed in a shipment of packaging cartons that he carried for the employer. The arrest was made by state department of transportation agents upon inspecting his truck and its load at a port of entry in New Mexico. The defendant was tried for possession of marijuana with intent to distribute and was convicted. Upon his conviction, he appealed, raising as one ground for the appeal that the trial court erroneously precluded him from impeaching one of the prosecution witnesses involved in the search of the vehicle the defendant had been driving. Woodard, __ F.3d at __.

The trial court's restriction precluded the defendant from cross-examining one of the arresting agents. The court barred the defendant "from offering evidence concerning a prior determination made by a different federal district court judge that the [witness] MTD inspector was not credible," in another unrelated case. Woodard, __ F.3d at __. Specifically, the prior unrelated case involved a suppression hearing that involved the arrest of suspect who passed the port of entry. The judge concluded that it: "does not believe [the inspector] detected the odor of raw marijuana emanating from the back of the trailer because he did not follow up and that information was not communicated to any other law enforcement personnel involved or given as a basis for any subsequent stop."

The Tenth Circuit concluded that the defendant had raised a legitimate constitutional question of whether the trial judge violated his Sixth Amendment Confrontation Clause rights by excluding the impeachment evidence. Before assessing the specifics of the defendant's trial, the court took the opportunity to examine the matter generally, noting that it had "not addressed the issue of whether past judicial credibility determinations are admissible under Rule 608(b)," and compelled by the Confrontation Clause. But the circuit noted that "several of our sister circuits have done so and held that" judicial credibility determinations are admissible under the FRE as well as required by the Sixth Amendment under certain circumstances.

The Tenth Circuit identified three other circuits that had struggled with the issue and ended up allowing impeachment with evidence:

  • Second Circuit: United States v. Cedeño, 644 F.3d 79, 82–83 (2d Cir.)(defendant proffered evidence that the officer had given testimony in a prior gun possession case, involving a different defendant and incident, where the trial judge had struck the officer's testimony, finding that it was not credible.), cert denied, _ U.S. _, 132 S.Ct. 325 (2011)
  • Seventh Circuit: United States v. Dawson, 434 F.3d 956, 957–59 (7th Cir. 2006) (“[T]he decision whether to allow a witness to be cross-examined about a judicial determination finding him not to be credible is confided to the discretion of the trial judge; it is not barred by Rule 608(b), which, to repeat, is a rule about presenting extrinsic evidence, not about asking questions .”)
  • D.C. Circuit: United States v. Whitmore, 359 F.3d 609, 619–22 (D.C.Cir.2004) (holding district court erred in refusing to allow the defendant to cross-examine an officer about a judge's conclusion that “I think [the officer] lied”).

After noting these other circuits that had addressed the FRE 608(b)/Confrontation Clause issue, the Tenth Circuit identified factors for the trial court to use in making a determination as to whether to restrict impeachment evidence offered by a defendant with regard to a prosecution witness. These Secon Circuit factors included:

“(1) whether the prior judicial finding addressed the witness’s veracity in that specific case or generally; . . . (2) whether the two sets of testimony involved similar subject matter”; (3) “whether the lie was under oath in a judicial proceeding or was made in a less formal context”; (4) “whether the lie was about a matter that was significant”; (5) “how much time had elapsed since the lie was told and whether there had been any intervening credibility determination regarding the witness”; (6) “the apparent motive for the lie and whether a similar motive existed in the current proceeding”; and (7) “whether the witness offered an explanation for the lie and, if so, whether the explanation was plausible.”
Woodard, __ F.3d at __ (citing Cedeno, 644 F.3d at 82, 83).

In applying these factors, the cross-examination about the prior adverse judicial ruling on the inspector's credibility should have been permitted. The defendant's Sixth Amendment right of confrontation was denied. The evidence was not unfairly prejudicial under FRE 403 given its probative value. Because the error was not harmless beyond a reasonable doubt, the conviction was reversed and the case was remanded.

The Woodard case is part of an emerging consensus permitting cross-examination about a prior adverse judicial ruling on credibility of the testifying witness. The case highlights relevant factors to assess the admissibility of this evidence.

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