UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA,
REPLY BRIEF FOR APPELLANT
As to matters not discussed herein, Mr. xxxx rests on his opening brief.
SUMMARY OF ARGUMENT
This Court should reject the Government's proposal that it ignore an apposite line of
cases decided by the District of Columbia Court of Appeals and instead follow a single,
unsoundly reasoned First Circuit case that purportedly would permit asking a defendant why
police witnesses were lying. The Court should also recognize that the Government is not
entitled to claim that its vouching was an "invited response," because Mr. xxxx
did not accuse the police of lying but merely contradicted their testimony.
THE COURT SHOULD NOT AUTHORIZE ATTORNEYS TO ASK WITNESSES ON CROSS-EXAMINATION WHETHER THEY KNOW "WHY" ADVERSE WITNESSES ARE LYING.
The Government concedes, as it must, that the District of Columbia Court of Appeals has repeatedly disapproved "the type of cross-examination utilized here" (Brief for Appellee ("GB") at 17). However, the Government argues that this Court should disregard that established line of cases, which arose from the improper trial tactics of prosecutors in the very same United States Attorney's office that prosecuted the instant case. The Government argues that instead the Court should be guided by a single First Circuit decision. The argument is transparently weak.
First, the Government points out that the District of Columbia Court of Appeals has never reversed a conviction due to violation of its ban on eliciting comments or opinions about other witnesses' credibility (GB at 17, n.7). True so far, but hardly grounds for this Court to ignore its neighboring tribunal's well-considered reasoning. In Scott v. United States, 619 A.2d 917, 923 n.12 (D.C. App. 1993), the court noted that it had expressed its hope seven years previously that such "misconduct" would not recur, but "[t]he hope we expressed, alas, turned out to be in vain." The court did not reverse in Scott because defense counsel's objections were sustained and the improper questions were not answered, so the defendant suffered no prejudice. But the court unequivocally restated its disapproval of such cross-examination. Id. at 917.
The Government suggests further that despite this Court's explicit policy of trying to maintain "as much commonality" with the District of Columbia's courts "as is possible" to avoid diverse litigation results (United States v. Thomas, 896 F.2d 589, 591 (D.C. Cir. 1990)), the inapplicability of the Federal Rules of Evidence in the local court system makes it "more appropriate" for the Court to "achieve consistency" with other federal courts than with the District of Columbia courts (GB at 17-18, n.7). This argument might carry some weight if there were any apparent conflict between federal and local rules of evidence, but the Government has pointed out no such conflict.
The one federal case the Government has found that conflicts with the broad prohibition of Scott and its precursors is United States v. Akitoye, 923 F.2d 221 (1st Cir. 1991). There, the court drew a distinction between the "was-the-witness-lying" question, which it agreed with the trial judge was improper, and the "was-there-reason-to-lie" question, which it agreed with the trial judge was proper. The distinction, also argued here by the Government, purports to be based on the general "liberality" among federal courts "in admitting evidence relevant to a witness' bias." Id. at 225. However, the distinction rests ultimately on the proposition that the "was-there-reason-to-lie" question is properly aimed at "bringing out the absence of bias-producing facts and circumstances," and "does not call for an opinion, but for articulable facts." Id. Where one witness is asked to come up with an explanation for another witness's testimony, this proposition is extremely dubious.
In this case, the prosecutor asked Mr. xxxx, referring to the officers' testimony that they had seen him exit the apartment, "Why are they making this up?" (Tr. 9/13 93). (1) After the objection was overruled, Mr. xxxx accommodated the prosecutor by answering that he did not know. This answer ostensibly agreed with the suggestion that he claimed the officers were lying, and it thus gave the prosecutor her desired pretext (though not a legitimate excuse) for vouching. (2) But answers to such questions, especially if they are judicially approved, will not always be in the negative. It is easy to imagine a defendant, asked why the police lied, answering, "Because they always come into my neighborhood and make up charges to get me and my friends off the streets." "Liberality" as to bias evidence notwithstanding, such a "reason" for police bias might not seem to the Government to be so appropriate for jury consideration. Obviously, however, in answer to such an open-ended question, one person's "articulable fact" may be another's "opinion."
Moreover, if the Federal Rules of Evidence provide a rationale for permitting this type of cross-examination, it should be permitted not only in criminal trials but in civil trials, where factual disputes are perhaps even more pervasive. To open the door to casual speculation about the motives for adversaries' allegations would tend to turn federal trials into name-calling free-for-alls.
In Freeman v. United States, 495 A.2d 1183, 1187 (D.C. App. 1985), the questioning of the defendant was much like what the Government claims occurred in the instant case--whether he knew of any reason the Government's witnesses would testify falsely against him and whether he had had any prior contact with them. In finding all the questions improper, the court implicitly held that they were not essentially different from the elicitation of the "lying" charge in Carter v. United States, 475 A.2d 1118, 1126 (D.C. App. 1984). And in a subsequent case, the court issued the following apt admonition:
. . . . We urge that litigants in this jurisdiction desist from attempting to find
"nice" distinctions between phrasings which we have already explicitly condemned
and those we have not yet explicitly condemned. What is prohibited is seeking to have one
witness comment or opine on the credibility of a prior witness, however phrased. . . .
McLeod v. United States, 568 A.2d 1094, 1097 (D.C. App. 1990). This Court should adopt the same unequivocal stance in opposition to the insidious practice the Government wants legitimized.
THE CONFLICT BETWEEN MR. xxxx'S VERSION OF THE EVENTS AND THE VERSION OFFERED BY THE POLICE WITNESSES DID NOT CONSTITUTE AN IMPROPER PROVOCATION OR "INVITATION" THAT JUSTIFIED THE PROSECUTOR'S VOUCHING.
The Government argues that it was proper for the prosecutor to assert to the jury that the police would risk their careers, their retirements, and perjury charges if they testified falsely (GB at 20). The claimed propriety of these assertions lies in the purported necessity to make them in response to "the import of appellant's own testimony . . . that the police had deliberately fabricated the case against him" (GB at 20). This appellate argument flouts the record and ignores the clear limits of the "invited response" rule, which were recognized in United States v. Young, 470 U.S. 1, 11-13 (1985).
It is not and it should not become the rule that a defendant who merely presents testimony contradicting Government witnesses opens the door to prosecutorial vouching for those witnesses. In Young, the Supreme Court addressed the problem where "the defense counsel argues improperly, provoking the prosecutor to respond in kind, and the trial judge takes no corrective action." Id. at 11. Its ensuing discussion of the "invited response" rule, which it found did not justify the extremity of the prosecutorial comments in issue, was explicitly premised on the impropriety of defense counsel's statements to the effect that the prosecution was instituted in bad faith and the Government's key witnesses were perjurers. Id. at 11-14. The Court did not suggest, and it is unreasonable of the Government to do so, that a defendant who only dares to contradict prosecution witnesses effectively waives the long-standing protection of the ban on prosecutorial vouching, which the Court reiterated. Id. at 18-19.
Quite simply, neither Mr. xxxx nor his attorney acted improperly below, and the Government's appellate tactic of suggesting that counsel "distanced himself" from Mr. xxxx's defense (GB at 20) does not transform that defense into an unfair provocation. Resolving factual disputes is the primary function of jury trials. The rules designed to keep trials fair may not be suspended wherever criminal defendants dispute e testimony of their accusers.
For the reasons stated above and in the opening brief for appellant, the judgment should be reversed and a new trial ordered.
A. J. KRAMER
FEDERAL PUBLIC DEFENDER
Allen E. Burns
Assistant Federal Public Defender
625 Indiana Avenue, N.W. Suite 550
Washington, D.C. 20004
CERTIFICATE AS TO LENGTH OF BRIEF
I HEREBY CERTIFY that the foregoing brief contains no more than the number of words
allowed by Circuit Rule 28(d).
Allen E. Burns
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 26, 1994, two copies of the foregoing reply brief for
defendant-appellant were served by United States Mail, first-class postage paid, upon the
United States Attorney's Office, Att'n: A.U.S.A. John R. Fisher, 555 Fourth Street, N.W.,
Room 10-435, Washington, D.C. 20001.
Allen E. Burns
1. Contrary to the Government's assertion (GB at 19), the question was not why the police "would" make their account up. Thus, it did call for an "opinion" as to why the police were lying, and it arguably was not permissible even under Akitoye.
2. Of course, this particular question, like "When did you stop beating your wife?", was designed as a trap, which Mr. xxxx was unlikely to answer without some kind of injury to his position.