Sunday, May 3, 2009
Reefer Madness: Judge Precludes Impeachment Based Upon Witness' Assurance That Marijuana Did Not Impair His Observations
The recent opinion of the Court of Appeals of Texas in Woodard v. State, 2009 WL 1124385 (Tex.App.-Hous. 2009), reveals that, unlike Federal Rule of Evidence 608(b), Texas Rule of Evidence 608(b) does not permit an attorney to cross-examine a witness regarding specific instances of (mis)conduct probative of the credibility of the witness. However, the opinion also makes clear that this proscription does not apply when the (mis)conduct is contemporaneous with the crime at issue. But, what if the misconduct is pot smoking, and a witness tells the court that his pot smoking earlier in the day did not "in any way affect" what he saw that night? According to the judge in Woodard, you believe him.
In Woodard, a jury convicted Ray Davon Woodard of aggravated robbery based in part of the testimony of eyewitness Casey Parker. At trial, Woodard was precluded by the judge from impeaching Parker through evidence that Parker had consumed an alcoholic beverage and smoked a marijuana cigarette earlier in the day, before the robbery, which occurred at night. The judge's ruling, however, was not predicated on Texas Rule of Evidence 608(b), which states that
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of a crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.
Instead, the court noted that
an exception to [Rule 608(b) permits such impeachment if there is a showing that intoxication from alcohol or drug use impaired the witness's ability to perceive the events in question at the time they occurred.
The problem for Woodard was that, when he made his offer of proof that Parker had consumed an alcoholic beverage and smoked a marijuana cigarette, Parker responded that smoking a marijuana cigarette and drinking an alcoholic beverage earlier in the day did not “in any way affect” what he saw that night. The court thus prevented Woodard from impeaching Parker through this evidence, concluding that "the State produced uncontradicted evidence that [Parker]'s ability to perceive the offense was [not] impaired by drug or alcohol intoxication at the time of the offense."
Now, unfortunately, the Woodard opinion doesn't disclose when exactly the marijuana was smoked and when exactly the robbery was committed, but even if those times were 10:00 A.M.and 10:00 P.M., I would have a problem with the court's opinion. Of course Parker claimed that he was not impaired by marijuana. But anyone who has been to a party with alcohol knows that plenty of people think that they are "good to drive" when the reality is that they are not even good to walk. In other words, why should the judge take a witness at face value when he wouldn't do the same to a guest at a party?
The research seems consistent that the ingestion of marijuana has adverse effect on memory that lasts, not hours, but days or even weeks. It seems clear to me that a judge in a case such as Woodard should not rely upon the assurances of a witness and should instead rely upon such research to find that witnesses can always be impeached, at a minimum, through evidence that they smoked marijuana on the same day as the day that they observed crimes.