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

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Saturday, August 22, 2009

Avoiding A Confrontation: Court Of Appeals Of Texas Deals With Intersection Between Rules Of Evidence And Confrontation Clause In Assault Appeal

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.

Texas Rule of Evidence 608(b), however, provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.

That's not to say, however, that a criminal defendant is automatically precluded from impeaching a witness for the prosecution through inquiry into specific instances of (mis)conduct by the witness as is made clear by the recent opinion of the Court of Appeals of Texas in Aguilar v. State, 2009 WL 2476628 (Tex.App.-Austin 2009).

 In Aguilar

Jonathan Senovio Aguilar was drinking at a friend's apartment with some friends and acquaintances. Disputes arose over gang affiliation and, although each witness offered varying explanations as to how the disputes arose, they agree[d] that the disputes eventually escalated into physical violence, including Aguilar stabbing Mark Tovar multiple times.

Aguilar was later charged with aggravated assault. During the ensuing trial, Tovar testified that he had used drugs but that he did not, and never had dealt drugs. Aguilar thereafter sought to cross-examine him about whether, in 1998, during a search leading to a prior felony conviction for possession of marijuana, police recovered two ounces of marijuana pre-packaged for sale, weight scales, drug ledgers, and $274 in cash.

The trial court precluded this line of interrogation, and Aguilar was subsequently convicted. Aguilar thereafter appealed, and the Court of Appeals affirmed, first noting that the proposed interrogation was not permitted under Texas Rule of Evidence 608(b). It then noted, however, that "the Confrontation Clause of the Sixth Amendent  may require admission of evidence that Rule 608(b) would otherwise bar. According to the court, 

In weighing whether evidence must be admitted under the Confrontation Clause, the trial court maintains broad discretion and should balance the probative value of the evidence sought to be introduced against potential risks of its admission, including harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence.  

This was the problem for Aguilar. The court first noted that the evidence from 1998 merely implied, but did not prove that Aguilar had sold drugs. Second, despite Aguilar's claims to the contrary, the court found that this evidence of Aguilar's possible drug dealing was collateral to the main issues at trial and did not add much impeachment value beyond the already admitted evidence that he had a prior felony conviction for marijuana possession.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/08/tx-608b-confrontation-clauseaguilar-v-statenot-reported-in-sw3d-2009-wl-2476628texapp-austin2009.html

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