EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, March 22, 2009

The Things We Do For Love: Tenth Circuit Refuses To Craft "Homosexual Exception" To Bias Questioning

The recent opinion of the Tenth Circuit in United States v. Baldridge, 2009 WL 692107 (10th Cir. 2009), reveals that lawyers are given wide latitude to inquire into potential biases that witnesses harbor against or in favor of the parties in a lawsuit.  And according to the court in Baldridge, that latitude extends to questions regarding a homosexual relationship between witness and party.

In BaldridgeRandy Lee Baldridge, a former elected county commissioner of Rogers County Oklahoma, appealed from his conviction on eight counts of conspiracy, fraud and misapplication of funds by a local government official, mail fraud, money laundering, and corrupt persuasion of a person to obstruct a federal investigation.  Specifically, the prosecution alleged at trial that "Baldridge abused his position as commissioner by engaging in a scheme to file false claims with the County for payment."  

One of the witnesses whom Baldridge called during his defense case was his fried, Brian Slover. During its cross-examination of Slover, however, the prosecution sought to establish that Baldridge and Slover were more than friends and that they were in fact involved in a homosexual relationship.  On appeal, Baldridge claimed that this line of questioning constituted prosecutorial misconduct because it was "treacherously calculated," but the government responded that its "cross-examination of Slover were proper and sought only to establish Slover's 'obvious potential bias in favor of [Baldridge].'"  

The Tenth Circuit sided with the State.  According to the court,

It is permissible impeachment to expose a witnesses' bias....At common law, bias describes the relationship between a witness and a party which might cause the witness to slant his testimony for or against the party....Certainly, if Baldridge and Slover had been having an intimate relationship, Slover's testimony might well have been slanted in favor of Baldridge. And Slover could have been biased in favor of Baldridge even if their relationship was not sexual, but merely close. Baldridge claims this situation is exceptional because an insinuation of homosexuality in rural Oklahoma is incendiary, not likely to be forgotten or forgiven by the jurors. Even if true, it is not a reason to craft a 'homosexual exception' to a hallowed rule of evidence allowing wide latitude for the jury to assess possible witness bias. At most it would be a factor for the trial judge to consider upon a proper Rule 403  objection, absent here. Viewed in the context of the entire trial, we perceive no error in the prosecutor's questioning of Bentz and Slover.  

I agree with the court.  Sure, an insinuation of homosexuality is extremely prejudicial, especially in certain parts of the country (although I don't have any personal knowledge about rural Oklahoma).  But evidence of a romantic relationship between witness and party is extremely probative of a potential bias tainting the witness' testimony.  Because evidence can only be excluded under Federal Rule of Evidence 403 when its probative value is substantially outweighed by its prejudicial effect, it is easy to see why the Tenth Circuit ruled against Baldridge.



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