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July 23, 2008
Just A Little Harmless Bolstering?: Ninth Circuit Finds Improper Bolstering To Be Harmless Error In Cop's Appeal
I strongly disagree with the reasoning applied by the Ninth Circuit in its recent opinion in United States v. Gonzalez, 2008 WL 2778926 (9th Cir. 2008). In Gonzalez, Gabriel Gonzalez was charged with acting under color of law to deprive three women of their bodily integrity in violation of 18 U.S.C. Section 242. One of those women was Cecilia Tirado, who claimed that during the early morning in summer 2002, she was pulled over by an officer, who performed sobriety tests on her and ordered her into his patrol car. She alleged that he then drove her by her home without letting her out and asked her whether she had a husband or boyfriend. She finally claimed that after a long drive, the officer drove into a desolate parking lot, commanded her to undress, and penetrated her vagina.
The principal issue at Gonzalez's trial was the identity of the perpetrator, with Tirado testifying through an interpreter that she responded to a telephone survey by the Southgate police asking about citizen satisfaction with police activities and told her story. While Tirado initially had identified the perpetrator as a Southgate police officer, when she was shown a photo-six-pack, she at once identified Gonzalez, a Los Angeles County sheriff's deputy, as the perpetrator. At trial, Gonzalez testified that she was "100 percent sure" that Gonzalez had raped her. However, despite this certainty, there were apparently "discrepancies in the dates to which she testified," which defense counsel probed on cross-examination (the Ninth Circuit's opinion doesn't make clear the nature of those discrepancies). The prosecution thereafter gave Tirado's testimony the "official stamp of acceptance" by calling Sergeant Enrique Garza, the police officer who interviewed her, and who at trial retold the story of the assault as she had told it to him.
After he was convicted, Tirado appealed, claiming, inter alia, that the trial court erred in admitting Garza's testimony. The Ninth Circuit agreed, finding that Tirado's prior statements were not admissible through Garza's testimony as prior consistent statements under Federal Rule of Evidence 801(d)(1)(B), which allows for the admission of a statement if:
"[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive."
The Ninth Circuit properly found that while defense counsel questioned Tirado about the date discrepancies in her testimony, he never expressly or impliedly charged that her allegations were recent fabrications or the product of an improper influence or motive; instead, the defense merely claimed that she was mistaken. That still left the issue, however, of whether this error necessitated a new trial or whether it was merely harmless error. The Ninth Circuit chose the latter option, finding that:
"A jury that believed that Tirado had had the awful experience-and no one doubted that she had-would very probably have believed that she could remember her assailant, even without the hearsay from Garza. Tirado stated at the time of her identification that she was “100 percent sure” that Gonzalez had raped her. Given this testimony, it is unlikely that any generalized vouching regarding Tirado's credibility altered the jury's verdict."
I see errors aplenty with this passage. First, was Garza's testimony really generalized vouching? I would say, "No." If the prosecution called someone to testify that they knew Tirado and found her to be a truthful person, I would label that testimony generalized vouching. Conversely, Garza retold the story of the assault as Tirado had told it to him. In my mind, it's difficult to conceive of more specific vouching.
Second, the Ninth Circuit relied at least partially on the fact that Tirado testified that she was "100 percent sure" that Gonzalez had raped her. I guess its point was that such certainty meant that Garza's testimony was unnecessary to make the jury believe her identification of Gonzalez. I'm not sure that I would buy this reasoning in a regular case, but this was not a regular case. Tirado initially thought that the person who raped her was a Southgate police officer, but she was wrong. There were apparently date discrepancies in her testimony. If I were a juror, these discrepancies would give me pause in believing her testimony, with Garza's bolstering testimony giving me a significant reason to press play and give her identification more weight.
Third, how could the Ninth Circuit possibly know that the jurors very probably believed that Tirado would have remembered her assailant based upon her indisputably awful experience? I'm not a big fan of appellate review by mind reading, and even if the Ninth Circuit is correct, there are reams of research indicating that a stressful event, such as being raped, actually decreases the accuracy of identifications. See, e.g., Edward J. Imwinkelried, A Comparativist Critique of the Interface Between Hearsay and Expert Opinion in American Evidence Law, 33 B.C. L. Rev. 1 (1991).
In conclusion, I strongly disagree with the reasoning applied by the Ninth Circuit. Its conclusion might very well still have been correct based upon other evidence and allegations in the case, but the reasons it proffered did not support a finding of harmless error.
July 23, 2008 | Permalink
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