Monday, July 20, 2009
No Collateral: Tenth Circuit Finds Extrinsic Evidence Of Child Abuse Was Properly Admitted In International Parental Kidnapping Appeal
Federal Rule of Evidence 608(b) provides in relevant part that
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The reason this Rule precludes the use of extrinsic evidence is that the (un)truthfulness of a witness is collateral to the substantive issues at trial. What this means, as is made clear by the Tenth Circuit's recent opinion in United States v. Rizvanovic, 2009 WL 2105231 (10th Cir. 2009), is that when extrinsic evidence of specific instances of conduct is relevant not only to a witness' (un)trustworthiness but also relevant to the substantive issues at trial, Rule 608(b)'s proscription does not apply.
In Rizvanovic, Vojko Rizvanovic was charged with, inter alia, one count of international parental kidnapping. The evidence adduced at trial indicated that
Defendant had two young daughters, one born in 2002 and the second born in 2005, and that he and their mother had lived together from the late 1990s until the fall of 2006. In October 2006, the children's mother left the apartment in which she had been living with Defendant and took the children with her to a shelter. In subsequent custody proceedings, a state court judge found that Defendant had committed emotional and domestic abuse against the children and their mother, and the court awarded sole custody of the children to their mother. Defendant was permitted to have his first unsupervised visit with his daughters in December 2006. In February 2007, he was permitted his first overnight visit with his children, but he did not return them as scheduled. In March 2007, law enforcement officers learned that Defendant and the girls had been in Australia for the past three weeks and would soon be flying to Macedonia. Defendant was arrested on a layover in the Vienna airport, and the girls were returned to their mother.
At trial, Rizvanovic conceded all of the elements of the kidnapping offense but asserted that his motivation fell within the statutory affirmative defense in 18 U.S.C. Section 1204(c)(2), which applies when a parental kidnapper "was fleeing an incidence or pattern of domestic violence." Specifically,
he testified that he had observed the children's mother abuse the children on several occasions when they were living together. He testified that her abuse became worse following her involuntary hospitalization for mental health reasons in the spring of 2005. He further testified that his main reason for taking the children was to protect them and prevent their mother from hurting them.
On cross-examination, the prosecution cross-examined Rizvanovic as to whether he had abused his children and their mother, and the court allowed extrinsic rebuttal evidence tending to disprove his answers. After the jury found Rizanovic guilty of international parental kidnapping, he appealed, claiming, inter alia, that the trial judge erred by allowing the prosecution to introduce extrinsic evidence tending to disprove his answers because Rule 608(b) deems such evidence inadmissible.
The Tenth Circuit disagreed, noting that Rule 608(b)'s proscription applies only when the extrinsic evidence is solely relevant to the collateral issue of the witness' (un)truthfulness. Conversely, the court found that Rule 608(b) "does not bar extrinsic evidence to the extent it goes to substantive issues, and here the rebuttal evidence tended to disprove Defendant's affirmative defense that he took the children to free them from domestic violence." The Tenth Circuit thus found that the trial judge did not err and affirmed Rizanovic's conviction.