EvidenceProf Blog

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

Tuesday, August 4, 2009

Bad Cops, Bad Cops: Tenth Circuit Questionably Affirms District Court Decision Limiting Cross-Examination Of Undercover Officer

Federal Rule of Evidence 609(a)(1) provides that

evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.

As I have noted several times on this blog (such as here), courts have generally applied this Rule and state counterparts liberally and admitted evidence of convictions even when they (in my opinion) really should not have. Meanwhile, in relevant part, Federal Rule of Evidence 608(b) provides 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.

This begs the question: Have courts similarly been liberal in allowing cross-examination of witness regarding specific instances of (mis)conduct? I haven't read enough case law on the issue to reach a definitive conclusion, but if the recent opinion of the Tenth Circuit in United States v. Beltran-Garcia, 2009 WL 2231667 (10th Cir. 2009), is representative, the answer would be "no."

In Beltran-Garcia, Edgar Beltran-Garcia and Martin Mendoza-Castillo were convicted of aiding and abetting possession, with intent to distribute, Schedule II controlled substances (methamphetamine and cocaine). These convictions were secured in large part through the testimony of an undercover officer, Officer M.R., who purchased the drugs from another man in the defendants' presence and identified Beltran and Mendoza as participating in the transaction. At trial, the defendants sought to impeach Officer M.R.'s testimony by asking questions about his misconduct during a separate, unrelated incident four years earlier. In that incident, the police department had reprimanded the Officer M.R. for exchanging heated words with and threatening to fight a suspect, and for allowing a search to continue that violated the Fourth Amendment. The district court, however, precluded this impeachment, prompting Beltran-Garcia and Mendoza-Castillo to appeal.

On that appeal, the Tenth Circuit affirmed, concluding that while the impeachment was permissible under Federal Rule of Evidence 608(b), the district court implicitly but properly foreclosed it under Federal Rule of Evidence 403, which provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

According to the court,

Several times the district court mentioned its concern that the allegations were too old. The prior sustained allegations were approximately four years old at the time of the arrest, which is less than the amount of time for admission of prior convictions under Rule 609, as Mr. Beltran and Mr. Mendoza point out....Nonetheless, remoteness in time affected the probative nature of the evidence.

Really? As the opinion noted, a four year old conviction is not considered remote under Rule 609, and I have never seen a court deem a four year gap between prior conviction and present trial a factor against the conviction's admission. Also, according to the court, "the misconduct occurred under different circumstances, during an arrest at a residence that did not involve undercover work." Now, in the Rule 609 context, this would be a factor supporting admission because the more similar the prior conviction to the present charge(s), the more likely that the jury will misuse the prior conviction as propensity character evidence." But apparently the Tenth Circuit sees things diferently in the Rule 608(b) context.

Now, the court did find also find that Officer M.R.'s prior misconduct was not directly relevant on the issue of his (un)truthfulness and that the misconduct could be confusing to the jury. These concerns, however, are always at play with prior convictions under Federal Rule of Evidence 609(a)(1), and I see no reason why they substantially outweighed the probative value of Officer M.R.'s prior misconduct.




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