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June 14, 2008
Sunshine State Split: Recent Case Reveals Split Among Florida Courts Over "False Reporting Exception" To Impeachment Rule
The recent opinion of the District Court of Appeal of Florida, Fourth District, in Washington v. State, 2008 WL 2356672 (Fla.App. 4 Dist. 2008), reveals some interesting distinctions between impeachment under the Florida Rules of Evidence and the Federal Rules of Evidence. In Washington, Aaron Washington was convicted of carjacking with a firearm and aggravated battery with a deadly weapon. Testimony, including testimony by the alleged victim, revealed that the victim was a drug-dealer who entered into a drug deal with Washington. During that deal, Washington allegedly took the drugs without paying for them, struck the victim repeatedly with a firearm, and with the help of two accomplices extracted him from his automobile, and stole it. The alleged victim subsequently reported the crime, but omitted details about the drug deal. This wasn't the first time that the alleged victim had been less than forthcoming in dealing with the police. In an unrelated incident, the alleged victim lent his car to a friend, who became involved in a hit-and-run accident, prompting the alleged victim to file a false police report that the car had been stolen. The jury, however, never heard this evidence because the trial judge granted the prosecution's motion to exclude this evidence, and its exclusion prompted Washington's appeal.
The District Court of Appeal first noted a distinction between the Florida Rules of Evidence and the Federal Rules of Evidence. While Federal Rule of Evidence 608(b) allows a party to cross-examine a witness about specific acts of untruthfulness (although these acts can't be proven through extrinsic evidence), the Florida Rules of Evidence contain no similar provision. Instead, Florida merely has Section 90.610 of the Florida Statutes, which is a counterpart to Federal Rule of Evidence 609, and which allows for impeachment of witnesses through evidence of prior convictions (It should be noted, however, that these rules are quite different; for instance, Federal Rule of Evidence 609(d) allows for impeachment of witnesses through evidence of juvenile adjudications in some cases while Section 90.610(1)(b) per se prohibits such impeachment).
Because the alleged victim was not convicted of a crime in connection with the prior false police report, he thus could not be impeached under Section 90.610, which would have seemed to foreclose the appeal. But, as the District Court of Appeal noted, the District Court of Appeal of Florida, First District created a "false reporting exception" to Section 90.610, under which witnesses can be cross-examined about false reports notwithstanding the plain language of the Florida statutes based upon recognition of a long line of authority from Florida courts allowing for such impeachment. See, e.g., Jaggers v. State, 536 So.2d 321, 327 (Fla.App. 2 Dist. 1988). The Fourth Circuit in Washington, however, noted that the First Circuit rejected this exception and then indicated that it would join that court in "respectfully declining" to adopt the Second District's "false reporting exception."
My take on the situation is that the Florida courts are free to read their state's statutes as they see fit. However, I see a potential problem for the First and Fourth Districts based upon the United States Supreme Court's opinion in Chambers v. Mississippi, 410 U.S. 284 (1973), which held that a state cannot apply its evidence laws in a manner that denies a criminal defendant a fair trial in accord with traditional and fundamental standards of due process. In Chambers, one of the evidence laws applied in such a manner was, as in Washington, a law preventing the defendant from impeaching a witness. Because both the Federal Rules of Evidence and, as far as I know, most if not all state rules of evidence besides Florida's would have allowed Washington to impeach the alleged victim, I can see a solid argument under Chambers that Florida courts must adopt a "false reporting exception" in cases where a criminal defendant seeks to impeach a key prosecution witness through evidence of a false police report by that witness.
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Florida already has a "false reporting exception." It simply requires as a predicate for use of a false report that it be backed up by a conviction. This eliminates mere allegations and accusations from polluting criminal trials. These rules work both ways, and the Florida rules mean neither the defense nor the prosecution can use "iffy" matters as "evidence." This rule also eliminates "trials within trials" on extrinsic matters. It goes without saying that if the allegations were false, the person accused ought to be given the opportunity to refute the allegation.
This is not Chambers material. This is an evidentiary rule regulating when impeachment on an extrinsic matter is appropriate.
Chambers has been reserved (as it should be) for extraordinary circumstances. Given the Supreme Court's constricted view of hearsay demonstrated in Crawford, it's hard to imagine the doors to hearsay being kicked wide open.
Chambers involved the ability of a defendant to present a third-party culprit defense due to the convergence of two evidentiary rules. One prevented anyone -- state or defense -- from impeaching his own witness. Therefore, the defendant could not cross examine the person he called who he believed was the real killer. The state also did not recognize the hearsay exception (again, on behalf of either state or defense) for statements against penal interest. The real killer's incriminating statements therefore could not be admitted at trial. The defendant was wholly deprived of his entire substantive defense.
Florida cannot (and should not) be forced to adopt the federal rule. (I don't think you meant to say that). The Chambers court specifically declined to trench on states rights in that manner:
"We conclude that the exclusion of this critical evidence, coupled with the State's refusal to permit Chambers to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process. In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial."
Posted by: FLA Rule | Jun 15, 2008 10:52:53 AM
That's an interesting take on the situation. Here are some of my thoughts in response:
1. You say that Florida already has a "false reporting exception," which simply requires as a predicate for use of a false report that it be backed up by a conviction, eliminating mere allegations and accusations from polluting criminal trials. This is true, but should a conviction be required? It's not under Section 90.404(2)(a) of the Florida statutes (and its counterpart, Federal Rule of Evidence 404(b)). Should this situation be different?
2. You say that the Florida rule also eliminates "trials within trials" on extrinsic matters. I would say that Federal Rule of Evidence 608(b) does the same by precluding the admission of extrinsic evidence.
3. You say that if the allegations were false, the person accused ought to be given the opportunity to refute the allegation. Well, under Rule 608(b), the witness can indeed deny the allegation, which thereafter can't be proven through extrinsic evidence.
4. You say that Chambers has been reserved (as it should be) for extraordinary circumstances. Given the Supreme Court's constricted view of hearsay demonstrated in Crawford, it's hard to imagine the doors to hearsay being kicked wide open. Well, in my view, Chambers dealt more with the Confrontation Clause, not the hearsay rules. But even so, this is an impeachment issue, not a hearsy (or Confrontation Clause) issue.
5. You say that Chambers has been reserved (as it should be) for extraordinary circumstances and that Florida cannot (and should not) be forced to adopt the federal rule. (I don't think you meant to say that). With due respect, I don't think that I did say that. What I did (try to) say was that in cases where a key prosecution witness has made a false police report, courts might have to allow a criminal defendant to impeach the witness through the false report. Chambers can't be stretched beyond reason, but I think that it could apply in such scenarios.
Posted by: Colin Miller | Jun 15, 2008 11:51:44 AM