Impeaching A Witness Based On That Witness's “Unworthy Of Belief” Testimony In An Prior Unrelated Proceedings

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In felon in possession of a firearm case, the defendant's constitutional right to confront his accuser was violated by exclusion of defense impeachment evidence concerning a key government witness's lack of veracity; another court's finding that the witness's testimony in a similiar, but unrelated case involving different suspects had been found "unworthy of belief" should have been admitted, in United States v. White, __ F.3d __ (2d Cir. Aug. 30, 2012) (No. 11-772-cr)

On Monday the Federal Evidence Blog assessed a recent Second Circuit case concerning admissibility of evidence under the Sixth Amendment Confrontation Clause. See The Per Se Exclusion Of Evidence Regarding Criminal Charges (admitting evidence on the arrests and charging decisions state authorities made with regard to other suspects who had been apprehended in the same vehicle as the defendant because this evidence tended to discredit the arresting officer's testimony in defendant's case). In addition to its assessment of the per se exclusion of evidence about the prosecutor's charging decisions, the circuit addressed a second issue related to the admissibility of evidence regarding an arresting officer's lack of credibility.

In the case, the defendant was stopped with four other riding in a minivan and a search of the the riders and vehicle discovered several weapons. All five occupants of the vehicle, including the defendant, "were arrested and charged with possession of all three firearms recovered—the two firearms found in [defendant] Jennings’ purse and the one allegedly found in [defendant] White’s pocket. The state prosecutor initially charged that all five defendants constructively possessed the charged weapons. Under applicable state law, this would preclude a defendant from being convicted of having personally possessed the charged weapon. However, the prosecutor ultimately dropped the collective possession charges against the defendants. However, the defendant was prosecuted in federal court as a felon in possession of a firearm, based on the incident that had been the foundation of the state's collective possession charge. White, __ F.3d at __

Central to the government's case against the defendant was testimony provided by an arresting officer, Herrmann, who testified that he had found the charged weapon in defendant's personal possession – namely, in the defendant's pants pockets, when he conducted a search. This was the only direct evidence of the defendant's personal possession of the charged weapon and this was related to a critical element of the charged offense. In his defense, the defendant sought to discredit the officer's testimony. The 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. The defendant contended that this evidence that the witness had testified under oath, in open court, months before the trial of the defendant, and was found lacking in credibility should be admissible. Implicit in this evidence was the conclusion that the witness had lied, and would accordingly lie in the defendant's case. White, __ F.3d at __

The Second Circuit outlined seven factors that it had identified could be considered when "determining the probity and relevance of a prior incident in which a court has criticized a witness’s testimony as unworthy of belief." These seven factors included:

  1. Specificity: “[W]hether the prior judicial finding addressed the witness’s veracity in that specific case or generally”
  2. Similar Subject: “[W]hether the two sets of testimony involved similar subject matter”
  3. Formality: “[W]hether the lie was under oath in a judicial proceeding or was made in a less formal context”
  4. Materiality: “[W]hether the lie was about a matter that was significant”
  5. Elapsed Time: “[H]ow much time had elapsed since the lie was told and whether there had been any intervening credibility determination regarding the witness”
  6. Motive: “[T]he apparent motive for the lie and whether a similar motive existed in the current proceeding”
  7. Justification: “[W]hether the witness offered an explanation for the lie and, if so, whether the explanation was plausible.”

White, __ F.3d at __ (citing United States v. Cedeño, 644 F.3d 79, 82-83 (2d Cir. 2011) (sets out seven non-exhaustive factors for courts to consider in determining the probity and relevance of a prior incident in which a court has criticized a witness’s testimony as unworthy of belief.))

The circuit used these seven Cedeño factors to conclude that the defendant clearly had a right under the Confrontation Clause to introduce evidence of the witness's lack of veracity. It found that the first and second Cedeño factors when considered against the weight of the remaining five factors left the circuit with "little trouble concluding that ...[the] prior credibility finding against [witness] was relevant and highly probative" in the defendant's case. White, __ F.3d at __. In doing so, the circuit emphasized that these factors are not exclusive and that the trial judge had the responsibility to weigh the factors that would favor admission of the impeachment evidence against factors that would suggest exclusion -- and that any number of other factors in addition to the seven should be considered when considering the relevance of a prior incident in which a court has concluded that a witness’s testimony as not worthy of belief.

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