Crossing The Credibility Line

First Circuit highlights a fine line in asking the defendant (or a witness) whether another witness lied during trial, which is improper, and whether another witness was “wrong” or “mistaken,” which may be permitted; as circuit noted, "There is no error in simply asking a witness if he agreed with or disputed another witness's testimony," in United States v. DeSimone, 699 F.3d 113 (1st Cir. Nov. 9, 2012) (No. 11-1996)

As previously noted in the Federal Evidence Blog, most circuits have held that it is impermissible to ask one witness whether another is lying. See Circuit Consensus On Impropriety Of Cross-Examining Defendant As To Veracity Of Other Witnesses. The First Circuit has considered whether rephrasing the question slightly may be permitted.

Trial Court Proceedings: Cross-Examination About Whether Other Witness Was Truthful

In the case, defendant DeSimone was prosecuted for defrauding investors and in laundering money obtained in the scheme. At trial, the defendant testified. During cross-examination, the prosecutor asked:

whether other witnesses had offered testimony that was "untruthful," "not true," or "untrue." The government asked DeSimone whether witnesses were "giving false testimony" or testimony that was "inaccurate," and DeSimone's objections to these questions were overruled.

DeSimone, 699 F.3d at 127-28. No objection was made to this questioning. The jury convicted the defendant. On appeal for the first time, he claimed that the prosecutor "improperly asked DeSimone to comment on the credibility of other witnesses."

First Circuit Review: Noting Fine Distinctions

The First Circuit found that there was no plain error in the questioning. In doing so, the circuit noted a fine line about what was permissible and impermissible in this area.

The circuit that counsel cannot ask one witness whether another lied at trial. DeSimone, 699 F.3d at 127 (citing United States v. Thiongo, 344 F.3d 55, 61 (1st Cir. 2003) ("[I]t is improper for an attorney to ask a witness whether another witness lied on the stand.")). As the circuit explained:

This rule is not read broadly. It is not improper to ask one witness whether another was "wrong" or "mistaken," since such questions do not force a witness "to choose between conceding the point or branding another witness as a liar." United States v. Gaines, 170 F.3d 72, 81-82 (1st Cir. 1999). There is no error in simply asking a witness if he agreed with or disputed another witness's testimony. United States v. Wallace, 461 F.3d 15, 25 (1st Cir. 2006). In cross-examining DeSimone, the government asked him without objection whether other witnesses had offered testimony that was "untruthful," "not true," or "untrue." The government asked DeSimone whether witnesses were "giving false testimony" or testimony that was "inaccurate," and DeSimone's objections to these questions were overruled. The government correctly concedes that "[t]he instances of 'untruthful testimony' . . . and 'giving false testimony' . . . are somewhat closer to the line." Indeed, they went over the line. It also correctly argues that "not true" does not "necessarily imply deliberate falsity."

DeSimone, 699 F.3d at 127-28. The circuit concluded that there was no plain error in the case. Any error was harmless based on other evidence and "[t]here were obvious inconsistencies between DeSimone's testimony and that of other witnesses which were apparent to the jury." DeSimone, 699 F.3d at 128.

Conclusion

There are risks in questioning one witness about the credibility of another witness. The DeSimone case shows that the First Circuit recognizes some fine distinctions in which the question may be framed. Whether it is advisable to pursue this line of questioning is another matter.

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