At Second Trial, Error In Admitting The Entirety Of The Defendant’s Testimony From The First Trial

Instead of admitting the prior testimony that had been given by the witness in his first trial, the Tenth Circuit “conclude[s] that the district court should have evaluated the testimony under the Federal Rules of Evidence before admitting it into evidence” in the retrial of the case; circuit notes few other cases addressing the issue, in United States v. Toombs, _ F.3d _ (10th Cir. April 26, 2013) (No. 11-3271)

It is not uncommon for testimony from a first trial to be admitted at a second trial. The Tenth Circuit recently considered the evidentiary implications of admitting the first trial testimony in its entirety where objections are raised.

In the case, the defendant’s first jury trial conviction on drug and firearm charges in 2008 was reversed on appeal after the Tenth Circuit reversed the district court’s denial of the motion to dismiss on Speedy Trial Act grounds. See United States v. Toombs, 574 F.3d 1262, 1273-74 (10th Cir. 2009). On remand, the district court dismissed the indictment without prejudice. A new indictment was returned. At the second trial, the defendant elected not to testify this time and the government introduced his testimony from the first trial in its entirety over defense objection. In particular,

the district court permitted the government to read into evidence the entire transcript of Toombs’ testimony from his 2008 trial. In this testimony, Toombs acknowledged having a sexual relationship with Osborn, knowing that she was a drug dealer, and having “spent the night with her maybe one day in October.” Toombs nonetheless testified that he did not live at 201 Topeka Avenue and when he visited Osborn there, he did not see any drugs. He denied knowing about or being involved in any drug activity at the home. Elsewhere in his testimony, Toombs admitted to illegal and unflattering past behavior. Toombs acknowledged that he had pled guilty to cocaine possession in 1999.

He also stated that he had learned to cook crack cocaine at age thirteen and that he “probably” continued to cook and sell drugs after his cocaine possession conviction, but insisted that the last time he sold or cooked drugs was in 2001. Finally, he described in detail his relationships with numerous women and his children from different women.

Toombs, _ F.3d at _. The defendant "objected to the wholesale admission of his prior testimony, arguing that certain portions describing his drug conviction, past drug use, and sexual relationships were irrelevant, prejudicial, or improper prior conviction evidence." The defendant was convicted by the second jury and appealed the introduction of his testimony from the first trial.

The Tenth Circuit concluded that the trial court erred in admitting the testimony in its entirety without ruling on the admissibility of the challenged testimony. The circuit noted that the introduction of the “prior testimony does not violate a defendant’s Fifth Amendment right against self-incrimination.” Toombs, _ F.3d at _ (citing United States v. Hanrahan, 508 F.3d 962, 967 (10th Cir. 2007) (“the jury could not naturally and necessarily construe the Government's introduction of Mr. Hanrahan's prior testimony as an impermissible comment by the prosecution on Mr. Hanrahan's decision not to testify in his second trial”)).

In support, the circuit cited to the “rare instances where courts have faced the question of how to treat a defendant’s prior testimony at a second trial where the defendant does not testify” and “have indicated that evidentiary rules do apply.” Toombs, _ F.3d at _. The circuit noted the following cases:

  • Edmonds v. United States, 273 F.2d 108, 113 (D.C. Cir. 1959) (“The fact that the defendant does not take the stand at the second trial does not prevent the use of his testimony given at the former trial, if it would otherwise be admissible.”)
  • United States v. Grunewald, 164 F. Supp. 644, 646 (S.D.N.Y. 1958) (holding that “prior trial testimony of [the defendant] is properly admissible, assuming it otherwise satisfied the standards of relevancy and materiality”)
  • United States v. Bohle, 475 F.2d 872, 875-76 (2d Cir. 1973) (considering the probative and prejudicial value of a defendant’s prior testimony)

While the trial court erred in admitting the entire transcript from the first trial without considering the rules of evidence, the circuit concluded the error was harmless based on substantial evidence of guilt. Consequently, reversal was not warranted.

The Toombs case highlights the importance of applying the rules of evidence to admit testimony from a prior proceeding. It may turn out that the entire testimony may be admitted at a second trial but the trial court must consider any evidentiary challenges in the context that it plays in the subsequent trial.

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Photo Description: The Byron White United States Courthouse Building, Tenth Circuit Court of Appeals, Denver, CO. Learn more about the history of the courthouse or former Justice Byron R. White, including in a speech by retired Justice John Paul Stevens.

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