EvidenceProf Blog

Can You Search Me Now?: Court Upholds Search Of Cell Phone Incident To A Lawful Arrest

A man is arrested. Pursuant to the Supreme Court's opinion in United States v. Robinson, 414 U.S. 218 (1973), "[a] full search of the person, his effects, and the area within his immediate reach at the time of a lawful custodial arrest may be conducted without regard to any exigency or the seriousness of the offense, and regardless of any probability that the search will yield a weapon or evidence of the crime for which the person is arrested." As part of a valid search incident to a lawful arrest, however, can an arresting officer search the contents of the arrestee's cell phone, and if so, how thorough can that search be? Those were the questions posed to the United States District Court for the District of Massachusetts in United States v. Wurie, 2009 WL 1176946 (D.Mass. 2009).

In Wurie, Brima Wurie was arrested on September 5, 2007, on suspicion of selling a small quantity of drugs and transported to the Area C-6 station in South Boston. Thereafter,

Approximately 5 to 10 minutes after Wurie was brought to the station, Officers Kevin Jones and Robert England, members of the C-6 Drug Control Unit, examined one of the cell phones seized from Wurie. They observed numerous calls logged on the caller ID screen from “my house.” When the phone rang, the officers flipped it open, activating the backlight. They observed a “wallpaper” photo of a young black female holding a baby. They also saw that the “my house” calls originated from “617-315-7384.” Officer Jones, using a police computer, typed the number into the website “AnyWho” (www.anywho.com). The number was listed to “Manny Cristal” at 315 Silver Street in Boston. The officers did not answer the call or access any other information stored in the phone.

Eventually, after gathering other evidence, officers were able to secure a search warrant for the apartment at 315 Silver Street and, while executing it, recovered, inter alia, 215 grams of crack cocaine, a Smith & Wesson .9 millimeter firearm loaded with five rounds of ammunition, six loose rounds of .40 caliber hollow point ammunition, four plastic bags of marijuana, drug paraphernalia, and $250 in cash. Wurie was thereafter charged with  (i) felony possession of a firearm and ammunition; (ii) distribution of cocaine base within 1000 feet of a school; and (iii) possession of crack cocaine with intent to distribute. England thereafter moved to suppress the evidence obtained based upon the information retrieved from his cell phone.

In addressing that motion, the court first noted what type of search the officers did not conduct. According to the court, the search of the cell phone was not a "second evidentiary look" at an item taken during an arrest inventory, which would have made the search unquestionably constitutional. Instead, the search of the cell phone was a search incident to a lawful arrest when Wurie arrived at the place of detention under United States v. Edwards, 415 U.S. 800, 803 (1974), or a booking search incident to a lawful arrest under United States v. Lafayette, 414 U.S. 640, 648 (1983).

The court noted, however, that "[n]either the Supreme Court nor the First Circuit has directly considered the issue of whether a search incident to arrest may include a search of a cell phone's contents, and if it does, how thorough the search might be." The court did not really need to address this latter question because it found that the search of Wurie's cell phone was "limited and reasonable." Meanwhile, in support of its conclusion that searches of cell phones incident to lawful arrests are proper as a general proposition, the court put forth an impressive string cite of opinions from across the country upholding such searches or similar searches. According to the court, "[d]ecisions of district courts and Courts of Appeals (often analogizing cell phones to the earlier pager technology) trend heavily in favor of finding that the search incident to arrest or exigent circumstances exceptions apply to searches of the contents of cell phones":

See United States v. Mercado-Nava, 486 F.Supp.2d 1271, 1277 (D.Kan.2007) (the same exceptions apply to warrantless searches of cell phones under the Electronic Communications Privacy Act as any other warrantless search.); United States v. Deans, 549 F.Supp.2d 1085, 1094 (D.Minn.2008) (agreeing with the Fifth Circuit that, “if a cell phone is lawfully seized, officers may also search any data electronically stored in the device.”); United States v. Valdez, 2008 WL 360548, at *3 (E.D.Wis. Feb.8, 2008) (search of defendant's phone was contemporaneous with his arrest and the officer was reasonably concerned that if he delayed, the information on the phone would be lost); United States v. Lottie, 2008 WL 150046, at *3 (N.D.Ind. Jan.14, 2008) (warrantless search of a cell phone justified by exigent circumstances); United States v. Dennis, 2007 WL 3400500, at *7 (E.D.Ky. Nov.13, 2007) (search of a cell phone incident to valid arrest no different from the search of any other type of evidence seized incident to arrest); United States v. Parada, 289 F.Supp.2d 1291, 1304 (D.Kan.2003) (phone seized incident to valid arrest; exigent circumstances justified accessing cell phone's call records because continuing incoming calls would overwrite memory and destroy evidence); Cf. United States v. Morales-Ortiz, 376 F.Supp.2d 1131 (D.N.M.2004) (otherwise unlawful search of cell phone's memory for names and numbers was justified under the inevitable discovery doctrine); United States v. James, 2008 WL 1925032 (E.D.Mo. April 29, 2008) (“[T]he automobile exception allows the search of the cell phone just as it allows a search of other closed containers found in vehicles.”).^FN9 See also United States v. Reyes, 922 F.Supp. 818, 834 (S.D.N.Y.1996) (warrantless searches of the stored memory of two pagers justified (i) as incident to arrest and (ii) by general consent); United States v. Chan, 830 F.Supp. 531, 535-536 (N.D.Cal.1993) (warrantless search of pager memory comparable to a search of container contents; search was not so remote in time to invalidate it as a search incident to arrest); United States v. Diaz-Lizaraza, 981 F.2d 1216, 1223 (11th Cir.1993) (agents reasonably activated defendant's pager to confirm its number). Cf. United States v. Thomas, 114 F.3d 403, 404 n. 2 (3d Cir.1997) (noting in dicta that the retrieval of a phone number from a pager found on defendant was a valid search incident to arrest).

I agree with the United States District Court for the District of Massachusetts. As that court went on to note, courts have routinely allowed officers to search personal items found on arrestees such as wallets, purses, and luggage. Because there is "no principled basis for distinguishing a warrantless search of a cell phone from the search of [these] other types of personal containers found on a defendant's person," the court's conclusion was correct. The question of the proper scope of the search of a cell phone incident to a lawful arrest is a tougher question and one that I suspect will divide courts in the years to come.

-CM

In Treatment: Court Of Appeals Of Texas Finds Trial Court Properly Allowed For The Admission Of Child's Statements To Doctor Concerning Sexual Assault By His Father

Like its federal counterpart, Texas Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

The basis for this exception is that a patient would not lie to his doctor for fear of mistreatment and/or misdiagnosis. And the exception typically only allows for the admission of those portions of a patient's statements describing the "general character of the cause or external source" of his injury or illness and does not allow for the admissions of those portions describing the identity of the person causing the injury or illness, if applicable. But what if the patient is a child? Does the child understand the consequences of lying to a doctor, making his statements sufficiently reliable? And if the source of a child patient's injuries is his parent, is a statement of identification reasonably pertinent to diagnosis or treatment, making statements of identification admissible? These were the questions that the Court of Appeals of Texas recently addressed in Weeks v. State, 2009 WL 1325461 (Tex.App.-Hous. [14th Dist.] 2009).

In Weeks, James Richard Weeks appealed from his conviction on two counts of aggravated sexual assault of a child. Weeks was convicted in part based upon the testimony of Dr. Reena Isaac, who treated Weeks' six year-old  son, whom Weeks allegedly sexually assaulted. According to Dr. Isaac, when she asked the son why he was there, he replied “[b]ecause my dad did something bad to me." The trial court found that Dr. Isaac could render this testimony because the son's statements constituted statements made for purposes of medical treatment or diagnosis under Texas Rule of Evidence 803(4). After he was convicted, Weeks appealed, claiming that this ruling was erroneous.

Weeks' first argument on this front was that his son was too young to understand the consequences of lying to Dr. Isaac, making his statements unreliable and not qualified for admission under Texas Rule of Evidence 803(4). The court disagreed, noting that in Fleming v. State, 819 S.W.2d 237, 247 (Tex.App.-Austin 1991), the Court of Apeals of Texas found that a four year-old child appreciated the need for veracity when she made statements identifying her abuser to a pediatrician. Based upon this precedent, the court in Weeks concluded:  "We disagree with appellant's argument that the complainant, who was six years old at the time of evaluation, could not have appreciated the need to be truthful because of his youth."  

Weeks' second argument on this front was that his son's statement identifying him as his assailant was inadmissible because generally Texas Rule of Evidence 803(4) only allows for the admission those portions of a patient's statements describing the "general character of the cause or external source" of his injury or illness and does not allow for the admissions of those portions describing the identity of the person causing the injury or illness, if applicable. However, relying upon Fleming as well as its prior opinion in Bargas v. State, the court found that "[a] child sexual assault complainant's statement identifying his or her abuser is admissible under Rule 803(4) and pertinent to medical treatment because the treatment of child abuse includes removing the child from the abusive setting." The court thus affirmed Weeks conviction, and in my opinion, it did so correctly.

-CM 

Does Child Pornography=Child Molestation?: Military Court Finds Child Pornography Evidence Was Properly Admitted As Character Evidence

Similar to its counterpart in the Federal Rules of Evidence, Military Rule of Evidence 414 provides that 

[i]n a court-martial in which the accused is charged with an offense of child molestation, evidence of the accused's commission of one or more offenses of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.

So, what if the government has evidence that a defendant on trial for indecent acts with a child and related crimes was (apparently) in possession of child pornography? Is such possession an offense of child molestation, rendering it admissible under Rule 414? That was the conclusion reached by the U.S. Navy Marine Corps Court of Criminal Appeals in its recent opinion in United States v. Yammine, 2009 WL 1315352 (N.M.Ct.Crim.App. 2009).

In Yammine, Rob B. Yammine was convicted by a general court-martial, composed of officer and enlisted members, of larceny, sodomy with a child who had attained the age of 12 but was under the age of 16, and indecent acts with a child. A portion of the government's evidence at trial involved the contents of Yammine's laptop computer. An examination by an expert from the Defense Computer Forensics Laboratory revealed that Yammine's name was listed as the only user profile found on the computer, which contained three types of evidence: 

file names of purported images of child and adult pornography (“file name evidence”); a movie frame image associated with file name “boy.kiddy.pedo.DX17[1].mpeg” that purported to depict two subjects engaged in intercourse (“movie frame evidence”); and remnants of approximately 4,000 internet searches using the term “Lolita,” which the DCFL expert testified is a commonly known search term for pedophiliac subjects (“internet search evidence”). Id. at 280, 732; Prosecution Exhibit 5 at 10. The expert testified that the “file name evidence” was located in a folder connected to a program called “Kazaa,” which is used to share files over the internet. The images related to the file names had been downloaded in November 2004, but were subsequently deleted from the computer's hard drive and the hard drive was defragged. Id. at 276-80. The “file name evidence” discovered by the DCFL expert included the following:

(1) boy.kiddy.pedo.DX17[1].mpeg

(2) C:/Program Files/Kazaa/My Shared Folder/10 y teen boys sex (1).jpg

(3) C:/Program Files/Kazaa/My Shared Folder/pedo preteen boy little boy get (1).jpg

(4) C:/Program Files/Kazaa/My Shared Folder/gay teen-skinny boy sucked.jpg

(5) C:/Program Files/Kazaa/My Shared Folder/pedo preteen boy little boy gets sucked.jpg

(6) C:/Program Files/Kazaa/My Shared Folder/pedo preteen boy boner ... mal19-72.jpg

(7) C:/Program Files/Kazaa/My Shared Folder/2 Boys-Teen Boy Fucking Preteen-B 26W.jpg

(8) C:/Program Files/Kazaa/My Shared Folder/PEDO-Boy Fun Series 1.jpg

(9) C:*Documents and Settings*Rob Yammine*Incomplete*T-1202102-UNDERAGED BOY FUCKED BY JUDGES R@YGOLD (7) child porn sex underage illegal incest lolita preteen !Y! incest zYz young KIDDY DAD nude French illegal pee forced violated.wmv

(10) C:*Documents and Settings*Rob Yammine*Incomplete*T-51175444-11 yr yng Lolita riding dad (preteen incest kiddy rape)(1)(2)(1).mpeg

(11) C:*Documents and Settings*Rob Yammine*Incomplete*T-80618-2_fuck dicks young sex teen ass boy blondes preteen cum gay cock teens little bareback boys(1).jpg

(12) C:*Documents and Settings*Rob Yammine*Incomplete*T-5385287-sex pjk rbv maria kdv nudists.mov

(13) Fucking very fast in the ass by three (illegal_preteen_underage_lo lita_ kiddy_child_incest_xxx_porno_gay_fuck_ young_naked_nude_little_g .mpeg

In other words, these were pretty disturbing files and also, according to both the military judge and the U.S. Navy Marine Corps Court of Criminal Appeals, admissible under Military Rule of Evidence 414, for the most part. According to the Court of Criminal Appeals, there were two reasons why evidence of this apparent child pornography was admissible against Yammine. First, "the possession or attempted possession of child pornography...constitutes 'an offense of child molestation' as it involves 'deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain of a child' under MIL. R. EVID. 414(d)(5)." Indeed, the court noted that in United States v. Seymour, 468 F.3d 378, 385 (6th Cir. 2006), the Sixth Circuit reached the same conclusion under .Federal Rule of Evidence 414(d)(5).

Second, the court found "that possession, or attempted possession, of child pornography also qualifies as an 'offense of child molestation' under MIL. R. EVID. 414(d)(2) and (g)(5) as 'sexually explicit conduct with children...proscribed by...Federal law because it involves the 'lascivious exhibition of the genitals or pubic area of any person.'"

The court did find that file (10) should have been deemed inadmissible because Yammie's was charged with acts against a young male and that file (12) should have been deemed inadmissible because it did not clearly consist of child pornography, but it found that both of these errors were harmless. But, overall, the court found that possession of child pornography qualifies for admission under Rule 414, and I think that most courts would agree.

-CM

The Bloodhound Gang, Take 2: Supreme Court Of South Carolina Tweaks Test For Admissibility Of Bloodhound Tracking Evidence

Back in February, I wrote a post about how "courts generally admit evidence that bloodhounds tracked down a defendant if the prosecution can establish" certain elements. As support for this proposition, I cited to the opinion of the Court of Appeals of South Carolina in State v. White, 642 S.E.2d 607, 614 (S.C.App. 2007), in which the court found that evidence that bloodhounds tracked down a defendant is admissible if the prosecution can establish that the bloodhounds

(1)...are of pure blood, and of a stock characterized by acuteness of scent and power of discrimination; (2)...possess these qualities, and have been accustomed and trained to pursue the human track; (3)...have been found by experience reliable in such pursuit; [and] (4)...were put on the trail of the guilty party, which was pursued and followed under such circumstances and in such way as to afford substantial assurance, or permit a reasonable inference, of identification.

The Court of Appeals of South Carolina in White found the prosecution established these four elements and thus affirmed the defendant's conviction, prompting his appeal to the Supreme Court of South Carolina which affirmed but did so only after tweaking the above test in State v. White, 2009 WL 1108881 (S.C. 2009).

In White, Gary White and Anthony Morris allegedly robbed a convenience store, and its manager, Gwen Anthony, in Columbia South Carolina (with Roy Wiggins driving the getaway car). As White and Morris were exiting the convenience store, Officer Rouppasong of the Columbia Police Department coincedentally pulled into the store parking lot on a routine break.

Upon his arrival on the scene, Officer Rouppasong saw two people: Anthony, waving and flagging him down and another person running away from the store. Rouppasong described the man he saw running as a black male, wearing a white t-shirt and dark colored pants, holding or carrying something in one of his hands. Rouppasong remained in his vehicle and followed White. As he followed him around the corner of the store, Rouppasong saw a car parked on the street. Rouppasong saw a black male (later identified as White) exit the car on the passenger side and flee. Rouppasong did not give chase; instead, he stayed with the vehicle and Wiggins. Officer Gunter, with the K9 unit, was called to the scene to search for the suspect.

Officer Gunter arrived on the scene approximately thirty minutes after the robbery. Once there, Rouppasong relayed the necessary information that allowed Gunter to know where to initiate the track. Gunter and his tracking dog, Aurie, began tracking and soon found White nearby sleeping next to some bushes, gun in hand. Rouppasong testified that the man he saw lying by the bushes, asleep, was the same man he saw exiting the store and fleeing the crime scene. There were two other in-court eyewitness identifications of White. Wiggins testified that White left his car with a gun, returned to his car a short time later, and then fled when police arrived. The second identification came from Morris.

Based upon these identifications and evidence indicating that Aurie tracked down White, White was convicted of armed robbery, leading to his aforementioned unsuccessful appeal to the Court of Appeals of South Carolina. White then appealed to the Supreme Court of South Carolina, which agreed with the court below, but only after applying a six element test rather than a four element test. Specifically, according to the South Carolina Supremes, a sufficient foundation for the admission of dogtracking evidence is established if 

(1) the evidence shows the dog handler satisfies the qualifications of an expert under Rule 702; (2) the evidence shows the dog is of a breed characterized by an acute power of scent; (3) the dog has been trained to follow a trail by scent; (4) by experience the dog is found to be reliable; (5) the dog was placed on the trail where the suspect was known to have been within a reasonable time; and (6) the trail was not otherwise contaminated.

The court found that these six elements were satisfied and thus affirmed.

-CM

Plain Truth: Court Of Appeals Of Minnesota Fails To Conduct Plain Error Review Of Business Records Ruling

In relevant part, Federal Rule of Evidence 803(6) provides a exception to the rule against hearsay for 

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

Thus, before a business record/report may be admitted under Rule 803(6), the proponent must have a custodian or other qualified witness testify that the record/report satisfies all of the elements of the Rule. Ostensibly, the prosecution failed to present such a witness in State v. Forbes, 2009 WL 1181914 (Minn.App. 2009), but, based upon the defendant's failure to object, the Court of Appeals of Minnesota concluded that he had waived the issue on appeal. I disagree.

In Forbes, after allegedly throwing a rock through his neighbor's window, Derrick Lamont Forbes was charged with third-degree criminal damage to property. The charged offense was committed on September 2, 2007, and effective August 1, 2007, the legislature raised the damages range for third-degree criminal damage to property from $250-$500 to $500-$1,000. At trial, "the state offered only one piece of evidence, Exhibit 9, to prove the value of the damage to the window." Exhibit 9 was a written estimate that the neighbor's friend obtained from a glass service company; the report indicated that it would cost $843.75 to replace the window. The estimate, however, was introduced through the testimony of a police sergeant; neither the neighbor's friend nor anyone from the glass service company testified at trial.

Forbes was subsequently convicted and appealed, alleging, inter alia, that Exhibit 9 was improperly admitted and that the district court erred in instructing the jury. According to the Court of Appeals of Minnesota, the problem with Forbes' first argument was that he did not object to the admission of Exhibit 9 at trial. According to the court,

“Evidentiary rulings are committed to the trial court's discretion and will not be reversed absent a clear abuse of discretion....” But appellant did not object to the admission of the estimate at trial....While this court may review error not objected to at trial under a plain-error standard,...the rule that failure to object to the admissibility of evidence waives the right to an appeal has an important purpose:

The purpose is simply to require objection to evidence offered at the trial to be made at the time so clearly that the objection may be obviated or if not, then the testimony excluded, without the cumbersome necessity of a new trial. If a new trial is...granted because of the reception of...evidence it will mean that objection to evidence may be made for the first time in [a reviewing] court. The vice of this rule is apparent and far-reaching. The adoption of such a rule will mean that an attorney for the defendant may sit back and permit the reception of any evidence offered, assured that if incompetent evidence gets into the case, [a reviewing court] will set aside any adverse verdict. It will mean that if a verdict of guilty is to stand, the court and county attorney must try the defendant's case. Any such rule is wrong in principle....Objections which counsel do not see fit to urge should be deemed waived....

Accordingly, we decline to address on appeal whether Exhibit 9 was inadmissible hearsay.

Did I miss something? If Forbes objected, the court would have reviewed for abuse of discretion; because he did not, the court was supposed to review for plain error, but it didn't. Instead, it declined to address the admissibility of Exhibit 9 on appeal. And this was despite the fact that the exhibit was the only evidence of the value of the damage to the window and despite the fact that it was clear that it was not introduced through a qualified witness.

The only thing that I can think is that the Court of Appeals of Minnesota declined to address the issue because it found that Forbes' second argument was sufficient to reverse the verdict against him. As noted, the charged offense was committed on September 2, 2007, and effective August 1, 2007, the legislature raised the damages range for third-degree criminal damage to property from $250-$500 to $500-$1,000. The problem is that the district court did not update its jury instruction; instead, the jury was instructed to find only whether the damage appellant caused reduced the value of the window by more than $250.

Forbes didn't object to this jury instruction either, but the Court of Appeals of Minnesota did find plain error in this jury instruction and thus reversed. Therefore, it didn't matter what the court found with regard to Exhibit 9, but if the court found plain error with regard to the jury instruction, why didn't it find plain error with regard to Exhibit 9? 

-CM

The Text-Message Mistrial: Judge Declares Mistrial After Witness Receives Text-Messages While On The Witness Stand

Back in March, I did a post about jurors improperly exchanging e-mails during trial and deliberations and concluded: "I have to wonder whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point."  Later that month, I did a post about mistrials being declared after jurors improperly used Google and twitter to look up and communicate details about the cases they were hearing. A recent case from Miami presented a slightly different problem: A witness engaging in text-messaging while he was on the witness stand.

The trial at issue involved Sky Development accusing Vistaview Development of fraudulently misrepresenting the number of two-bedroom units in the 308-unit Vistaview apartment complex. While Sky Development's chief operating officer Gavin Sussman was on the witness stand, Judge Scott Silverman spoke with attorneys for both sides during a sidebar conference. This conference gave Sky Development chief executive Yizhak Toledano Sussman the opportunity to text Sussman:

One message from Toledano to Sussman said: "We never filed a lawsuit against seller. These people developed the site 40 years ago, in 40 years and know every corner." It wasn't clear from a transcript who sent the second text saying, "We maybe got this document after Sept. 7 when the bank discovered the problem."  

A courtroom spectator noticed the texting and alerted defense counsel. Judge Silverman thereafter questioned Sussman about the texting, and Sussman admitted what he had done. Then, upon defense counsel's motion, the judge declared a mistrial because "[a] basic trial rule prevents people on the witness stand from communicating with anyone about their testimony during recesses or other breaks."  

Before declaring that mistrial, however, the judge laid into Toledano in a heated exchange:

"Let me be really frank about this," the judge said. "I never had this happen before. This is completely outrageous, absolutely outrageous."

Toledano responded, "It was on a break."

Silverman shot back: "It doesn't matter. You are communicating about the case and the subject matter of the case with a witness who is currently under oath and before the jury,"

Toledano said, "I'm sorry, after we took the break, it's not in the middle."

The judge explained himself again.

"It's a problem on your communicating with the witness about his testimony whether it's before the break, after the break and during the break while he's testifying," he said. "This is outrageous."

Unfortunately, while this was the first time that Judge Silverman had seen such behavior, I'm sure that it won't be the last time he sees it. The question is what courts can do to prevent the Google mistrial, the twitter mistrial, and now the text-message mistrial. 

(Hat tip to Marilyn Thomas for the link)

-CM

Under Construction: Ninth Circuit Resolves Interplay Between Rules Of Evidence 608 And 609

Federal Rule of Evidence 609 allows for witnesses to be impeached through evidence of their prior convictions. Meanwhile, 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.

So, how do these two Rules work together? Does the above cited language from Rule 608(b) mean that evidence relating to a conviction is treated solely under Rule 609? Or does this language indicate that the defendant's actions which led to his conviction can be inquired into on cross-examination and that they can be proven by extrinsic evidence? This was the question presented to the Ninth Circuit in United States v. Osazuwa, 2009 WL 1232107 (9th Cir. 2009).

In Osazuwa, Daniel Osazuwa appealed fro his conviction for assaulting a federal prison guard while he was incarcerated for failing to pay restitution associated with a bank fraud conviction. At trial, Osazuwa had testified in his own defense, leading the prosecution to impeach him through his bank fraud conviction. The prosecution, however, did not stop at merely asking Osazuwa about his conviction, but instead questioned him at length about the dishonest conduct that led to his conviction.

The basis for Osazuwa's appeal was that, under Federal Rule of Evidence 609, "'absent exceptional circumstances, evidence of a prior conviction admitted for impeachment purposes may not include collateral details and circumstances attendant upon the conviction.'" The prosecution countered that it could delve into the dishonest conduct that led to Osazuwa's conviction under Federal Rule of Evidence 608(b). According to the prosecution, "Rule 608 provides only that, while specific instances of the conduct of a witness may not be proved by extrinsic evidence, extrinsic evidence is admissible to prove criminal convictions." Conversely, Osazuwa contended that Rule 608 exempts from its coverage a witness' prior criminal convictions and instead delegates to Rule 609 Rule 609 any questions relating to such convictions."  

And the Ninth Circuit found that "[b]oth Defendant's and the government's constructions [were] plausible." To resolve the dispute, the court thus went to the Advisory Committee's Note to Rule 608, which states that 

"[p]articular instances of conduct, though not the subject of criminal conviction, may be inquired into on cross-examination” and “[c]onviction of crime as a technique of impeachment is treated in detail in Rule 609, and here is merely recognized as an exception to the general rule excluding evidence of specific incidents for impeachment purposes."

The Ninth Circuit found that this language clearly supported Osazuwa's reading of the two Rules and noted that many courts across the country had reached a similar conclusion. The court thus found that the intensive interrogation of Osazuwa was erroneous and reversed his conviction.

-CM