Impeachment By Contradiction - An Open Issue For The Sixth Circuit

In trial for robbery-related offenses, excluding testimony by the defendant's mother, proffered to contradict the arresting officer's contention that he heard the defendant admit to his mother that he had committed the charged crimes; declining to apply the doctrine of impeachment by contradiction , as an exception to FRE 608(b), because the doctrine's was an open issue in the circuit and because the appeal could be resolved without resort to that doctrine, in United States v. Scott, __ F.3d __ (6th Cir. Sept. 10, 2012) (No. 10-5811)

The Sixth Circuit recently examined the admissibility of evidence to contradict a witness's testimony on a key issue in a case. The circuit noted that some circuits recognize impeachment by contradiction as an exception to FRE 608(b)'s general bar on examining a witness about collateral matters that may contradict their testimony with extrinsic evidence of situation. At least in the Sixth Circuit, the applicability of the doctrine was unclear. However, in the end the circuit found it did not need to resolve the issue in the defendant's case, because even if the doctrine was recognized, it would not apply to permit admission of the witness's evidence which serves to contradict the defendant's factual contention regarding an issue otherwise extrinsic to the trial. The circuit's brief discussion of the impeachment by contradiction left the applicability of the doctrine open in the circuit, but the court helped clarify the scope of the doctrine if it were to apply.

In the case, defendant Scott was arrested near an area in which there had been a "string of robberies," all using the same modus operandi. The defendant was interrogated by police with minimal success. During his third day of detention, according to one detective, they overheard the defendant effectively admit to his participation in the charged crime. The officer indicated that the admission was to be made to the defendant's mother. The defendant sought the exclusion of this collateral evidence, but had no success. His trial ended in his conviction. He appealed contending that the trial court should have admitted testimony by his mother that the defendant had made no such confession to the charged criminal activities.

The Sixth Circuit affirmed the exclusion of the evidence, rejecting in part the defense argument that the trial court should have admitted defendant's mother's testimony to the effect that she did not, despite the investigating detective 's claim, receive any confession from the defendant regarding his role in the charged crimes. The trial court declined to admit the mother's proffered testimony which would directly contradict the testimony by the detective.

The Circuit explained that it was not clear that the doctrine of impeachment by contradiction was recognized in the circuit. But even had the doctrine been accepted, the circuit opined that the defendant's evidence would not be admissible under the disputed doctrine. “Impeachment by contradiction permits courts to admit extrinsic evidence that specific testimony is false, because contradicted by other evidence,” acknowledged the circuit. It also noted that the doctrine "is an exception to Federal Rule of Evidence 608(b)'s collateral fact rule, “which generally prohibits the introduction of extrinsic evidence to attack the credibility of a witness.”

The circuit reiterated that it has "not recognized the doctrine of impeachment by contradiction" Scott, __ F.3d at (quoting United States v. Kincaid–Chauncey, 556 F.3d 923, 932 (9th Cir. 2009) (internal quotation marks omitted); United States v. Todd, 431 F. App'x 412, 416 (6th Cir. 2011) (“Although other circuits have recognized the exception under limited circumstances ... this circuit never has.”)). But the defendant's case would not provide an opportunity to resolve the issue. Because even if the doctrine applied in the circuit, the doctrine would not admit the evidence the defendant sought to introduce, the circuit noted that the issue of the doctrine's application "need not" be resolved by the defendant's appeal. As explained by the circuit:

Even where impeachment by contradiction is recognized, its availability is limited: a witness may be impeached by contradiction only if “the statements in issue [have] been volunteered on direct examination.” Here, Scott sought to introduce his mother's testimony to contradict trial testimony by [detective] Hutchison “regarding whether her son ever admitted to [his mother] in front of detectives that he committed the robberies.” As the United States argues, and as Scott appears to concede, the only trial testimony relevant to this issue is Hutchison's statement on direct examination that Scott “wanted to call his mother on the phone and let her know what he had done.” But the United States never elicited testimony from Hutchison stating that Hutchison heard Scott admit to his mother that Scott committed the robberies; the quoted testimony regards Hutchison's recitation of the reason Scott gave for wanting to call his mother, and does not regard the content of Scott's call to his mother. Hutchison never testified to anything regarding the content of Scott's call with his mother, and thus, Hutchison did not testify to any fact that Scott's mother could contradict. Further, any testimony by Scott's mother as to Scott's statement to police concerning the reason he wanted to call her is not based upon her personal knowledge—she was not present when Scott made the statements to which Hutchison testified. We cannot conclude that the district court abused its discretion in excluding this testimony.
Scott, __ F.3d at __.

In its review of why the doctrine of impeachment by contradiction would not apply to the defendant's case, the circuit reflected some of the Advisory Committee on Evidence Rule's assessment of the doctrine. The Notes of Advisory Committee (2003 Amendment) on Amendment to FRE 608(b) indicated that FRE 608(b) "leaves the admissibility of extrinsic evidence offered for other grounds of impeachment (such as contradiction, prior inconsistent statement, bias and mental capacity) to Rules 402 and 403. e.g., United States v. Winchenbach, 197 F.3d 548 (1st Cir. 1999) (admissibility of a prior inconsistent statement offered for impeachment is governed by Rules 402 and 403, not Rule 608(b)); United States v. Tarantino, 846 F.2d 1384 (D.C. Cir. 1988) (admissibility of extrinsic evidence offered to contradict a witness is governed by Rules 402 and 403); United States v. Lindemann, 85 F.3d 1232 (7th Cir. 1996) (admissibility of extrinsic evidence of bias is governed by Rules 402 and 403)."


Federal Rules of Evidence