IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA *
* Criminal No. xxxxxxxxxxxx
xxxxxxxxx
* * * * * * * * *
MEMORANDUM OF LAW
FACTS
Mr. xxxxx is charged with being in possession of a firearm after having been convicted of a felony. According to the prosecution, Roderick xxxxx will testify that he saw Mr. xxxxx remove a gun from his person and attempt to hide it before the police arrested Mr. xxxxx. Roderick xxxxx is clearly the prosecution's key witness.
The defense theory is that the gun belongs to Mr. xxxxx and that he has implicated Mr. xxxxx because he cannot admit that the gun is his. This is so because Mr. xxxxx currently is on probation for a state felony conviction. If found to possess a firearm, Mr. xxxxx faces a fifteen year sentence of imprisonment. Second, Mr. xxxxx has the additional motive to lie because if he fails to tell the truth about possessing the gun he would likely lose his nursing license, and may lose his job and affluent lifestyle.
Mr. xxxxx' felony conviction involved an eight-month scheme to alter payroll records. Prior to being caught, Mr. xxxxx stole more than $7,000. As a result of his theft, Mr. xxxxx was fired and convicted. His plea bargain required that he testify against a co-defendant in exchange for a probationary sentence.
Since his conviction, Mr. xxxxx has demonstrated a repeated pattern of lies and deception to cover up his criminal record and other illegal activity. He has lied to the Nursing Board, employers, the grand jury and the police in this case. He has also committed tax fraud. These areas must be explored on cross-examination to establish xxxxx' motive to lie in this case. It is estimated that the cross-examination will be concluded in less than one hour.
ANALYSIS
The general rule is that cross examination of a witness on specific instances of conduct, for the purpose of attacking or supporting his credibility, other than conviction of a crime as provided in Rule 609, may not be provided by extrinsic evidence. Federal Rule of Evidence 608(b). However, The Supreme Court has held that when the extrinsic evidence goes to impeach the witness to expose biases, prejudices, or ulterior motives as they may relate to issues or personalities in the case at hand, that evidence will be allowed. United States v. Abel, 469 U.S. 45, 54 (1984).
In United States v. Abel, the trial court allowed evidence that a government witness was a member of the Aryan Brotherhood. The witness had disavowed membership in the organization on cross examination, and the defendant argued on appeal that under Rule 608(b) the questioner is limited to the witness' answer and is not allowed to introduce extrinsic evidence of the witness' past conduct. Id. at 55. The Court of Appeals disagreed and reversed the conviction.
The Supreme Court, reversed The Court of Appeals, reinstating the conviction. The Court held that while the Federal Rules of Evidence do not specifically deal with impeachment for bias they do expressly treat impeachment by character evidence and conduct and that this treatment combined with the constitutional right to confrontation requires a defendant have the opportunity to show bias.
Earlier, the Supreme Court, in Davis v. Alaska, 415 U.S. 308 (1974), held that the defense should have been able to cross examine the government's star witness as to his adjudication as a juvenile delinquent relating to a burglary and his probation status at the time of his trial. The reason this testimony should have been allowed, the Court held, is because the defense should have been able to show that the witness may have been biased because of his vulnerable status as a probationer and his concern that he might be a suspect in the burglary charged against petitioner. Id. at 318. Those reasons apply equally to this case.
The Court emphasized that "exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross examination." Id. at 316-317. The Court also noted that "[s]ubject always to the broad discretion of the trial judge to preclude repetitive and unduly harassing interrogation, cross-examiner is not only permitted to delve into witness' story to test witness' perceptions and memory, but is traditionally allowed to impeach, that is, discredit the witness." Id. at 316.
One commentator notes that "bias of a witness is always significant in assessing credibility, the trier must be sufficiently informed of the underlying relationships, circumstances and influences operating on the witness so that, in light of his experience, he can determine whether a mutation in testimony could reasonably be expected as a probable human reaction." J. Weinstein & M. Berger, Weinstein's Evidence, 607(03) at 23-24 (1982).
Where the witness being impeached is the government's star witness, as is true in the case at hand, the importance of cross examination is increased. United States v. Calle, 822 F.2d 1016 (11th Cir. 1987). In Calle, the Court wrote: "The importance of full cross-examination is necessarily increased when a witness the accused seeks to cross-examine is 'star' government witness, providing an essential link in prosecution's case." Id. at 1020. In Calle, the court held that a new trial was required because the trial judge should have allowed the defense to rebut the testimony of the government's star witness. The court held that "evidence relevant to a material issue is not rendered inadmissible because it happens to include references to specific bad acts of a witness." Id. at 1021.
The defense tried to introduce the testimony of a witness who would have testified that the government's witness, who had denied being a drug dealer, was in fact a big time dealer with a cash- oriented lifestyle consistent with that of a major drug trafficker. Such a characterization would have contradicted the government's theory that the witness was only an intermediary who needed the defendant to supply the large amounts of drugs in question in the case." Id.
In addition, the Court noted that the testimony was necessary to show the witness'
motive to testify falsely. That motive being that he lied about drug activity in order to
protect himself from further prosecution and to shift the blame to the defendant. When
such evidence is offered, "the self interest of a witness, as opposed to the general
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