Monday, October 8, 2007
(The Lack of) Appearances Can be Deceiving: Is the Failure to Appear for Court Dates Admissible under 608(b)?
In United States v. Williams, the Eighth Circuit Court of Appeals, inter alia, affirmed a District Court ruling precluding defense counsel from interrogating prosecution witness Levi Garcia about his alleged failure to appear for court dates. After the ruling, the defendant was convicted of various metamphetamine-related offenses.
The defendant claimed that defense counsel should have been allowed to interrogate Garcia pursuant to Federal Rule of Evidence 608(b)(1), which allows for attorneys to cross-examine witnesses about specific acts of conduct by the witness which are probative of the witness' truthfulness or untruthfulness. Without further analysis, the Eighth Circuit merely disagreed with defense cousnel and concluded that a failure to appear for a court date is not probative of truthfulness or untruthfulness.
Courts appear to be split about whether failure to appear for a court date is an act sufficiently probative of untruthfulness to allow cross-examination about it (Compare United State v. Colella, 1989 WL 89212 (E.D. Pa. 1989) with United States v. DiPaolo, 804 F.2d 225 (2nd Cir. 1986)).
I don't think that a per se rule is applicable in this context. Instead, I think that when a judge is faced with such a scenario, he/she should adduce facts such as why the witness failed to appear for the prior court date, whether and when the witness was subpoenaed, whether the witness promised to a person or people that he/she would appear, etc. This would allow the court to determine whether the failure to appear was a matter of untrustworthiness or based upon some other factor.