EvidenceProf Blog

I'll Be The Judge Of That: New Jersey Court Finds No Problem With Lengthy Judicial Interrogation Of Pro Se Defendant

Under New Jersey Rule of Evidence 614, "The judge, in accordance with law and subject to the right of a party to make timely objection, may call a witness and may interrogate any witness." In exercising this authority to interrogate witnesses, however, the judge must be sure to maintain his judicial neutrality and not assume the role of an advocate for either party. In its recent opinion in K.C. v. J.K., 2010 WL 4007554 (N.J.Super.A.D. 2010), the New Jersey Superior Court, Appellate Division, found that a trial judge properly exercised his authority under Rule 614 during his interrogation of a pro se defendant. If the defendant's allegations are true, I disagree.

In J.K., J.K. appealed from a final restraining order barring him from the residence and places of employment of plaintiff K.C. and prohibiting him from having any contact and communication with plaintiff and her two daughters, K.G. and B.G. One of the grounds for J.K.'s appeal was that

the judge only allowed [him] to utter one sentence on his presentation of his direct testimony before beginning a cross-examination. [J.K.] contend[ed] that the court's cross-examination covers eleven pages of testimony. He contends the judge's examination was replete with admonitions and skillful, adversarial questioning. [J.K.] urge[d] that the judge's questioning was "good lawyering," but improper from the bench.

In turning this argument aside, the court initially noted that "One of the natural parts of the judicial function, in its orthodox and sound recognition, is the judge's power and duty to put to the witnesses such additional questions as seem to him desirable to elicit the truth more fully." It then concluded,

We have carefully reviewed the transcript of the hearing and are satisfied that the judge did not exceed the bounds of the discretion accorded him with respect to questioning witnesses. This was, after all, a bench trial, and the judge, as finder of the facts, had a duty to search out the truth. There was no impermissible tilting of a trial in favor of plaintiff. Where a litigant appears pro se, the judge may often have "to focus the testimony and take over the questioning of the parties and witnesses." That is all that was done here.

Maybe it was, but not if K.C. was being accurate. As the court, noted, after a witness testifies, a judge may ask questions to elicit the truth more fully. And when a litigant is pro se, the judge may very well have to take over the questioning of witnesses to focus testimony after the litigant's interrogation has gone astray. But according to K.C., he got to utter merely one sentence of his self-interrogation/testimony before the judge interjected with an interrogation that covered eleven pages of testimony. To me, that seems wholly improper under Rule 614.

Now, maybe K.C. was exaggerating and he in fact went on for well more than a sentence, with the judge having to interject because it was clear that his self-interrogation/testimony was not focused. If that were the case, though, the appellate court should have said so.

-CM

The Accident Experiment: Court Refuses To Grant New Trial Despite Juror Performing Accident Scene "Experiment" In Car Crash Case

Federal Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

So, let's say that that there is a civil action and a trial based upon a car accident at a certain intersection. And let's say that a juror goes to the scene of the car accident and conducts an "experiment" related to the accident. The jury, however, does not discuss the experiment during deliberations. After the verdict is granted, if this experiment is exposed, should a new trial be granted? According to the recent opinion of the United States District Court for the Eastern District of Texas in Swanson v. Roehl Transport, Inc., 2010 WL 3702589 (E.D. Tex. 2010), the answer is "no." I disagree. 

Swanson arose

out of a collision between Plaintiff Arthur Swanson, Jr. ("Plaintiff" or "Swanson") and Defendant Paul Connell ("Defendant" or "Connell") at the intersection of Highway 59 and Highway 49 in Jefferson, Texas. A jury trial was held in this case on June 16 and 17, 2010. The jury reached a verdict finding Defendants liable and awarding Plaintiff $96,449.89 in damages. The Court subsequently reduced Plaintiff's recovery to $49,189.00 per the jury's apportionment of Plaintiff's responsibility in the amount of 49%.

Unfortunately, that's all we get in the way of facts from the opinion, but we are also told that, after the verdict was entered, Swanson moved for a new trial based upon the written statement and testimony of one juror, Ms. Guthrie, that another juror "practiced a test run toward an intersection" during the trial and concluded that she could easily stop her car going 40 m.p.h. without interfering with the intersection. (Based upon this statement and testimony, I think that we can assume that Swanson claimed that he was only driving 40 m.p.h. and yet could not avoid the subject collision).

In addressing this argument, the United States District Court for the Eastern District of Texas noted the dichotomy in Federal Rule of Evidence 606(b): While jurors can testify about the fact of extraneous prejudicial information, they cannot testify about the effect of such information on deliberations. Instead,

Because the Court cannot investigate the subjective effects of any allegedly prejudicial extraneous influences on the jury, the question of whether prejudice resulted from the juror's experiment must be resolved by the Court drawing reasonable inferences as to the probable effect of the juror's misconduct. "Though a judge lacks even the insight of a psychiatrist, he must reach a judgment concerning the subjective effects of objective facts without benefit of couch-interview introspections."

The court then attempted to draw such reasonable inferences, concluding that based upon

Ms. Guthrie testimony that the jury did not discuss [the] "experiment" at all during the deliberations and that no other jurors relayed their driving experiences, the Court finds that even if the juror's description of her driving "experiment" was improper and introduced extraneous information into the jury deliberations, it did not influence the jury's decision making process and, thus, did not create a reasonable probably of prejudice. Accordingly, the Court denies Plaintiff's request for a new trial based on juror misconduct on these grounds.

I think that these were unreasonable inferences. First, regardless of whether the juror mentioned the experiment to other jurors, he conducted the experiment himself, and this obviously prejudiced him in deciding that the Plaintiff was partially responsible. Second, from the above analysis, it is clear that the juror did indeed mention his experiment to the other jurors; the jury simply didn't discuss the experiment during deliberations. Frankly, I don't see how this fact makes the experiment less prejudicial. At least if the experiment were discussed, the jurors could have seen the likely flaws with the experiment. For example, was there precipitation on the ground at the time of the accident but not the experiment or vice versa? What was Swanson's car and what was the juror's car? Did the cars have the same braking systems?

These are exactly the types of possible differences that make such jury experiments improper, and the fact that the jury didn't discuss the experiment during deliberations makes it likely that at least some jurors took the experiment as strong evidence of the Plaintiff's fault. Therefore, I think that the court easily should have granted Swanson's motion for a new trial.

-CM

Not Accounting For Externalities: Court Of Appeals Of North Carolina Finds Dictionary Definitions Are Not External Information Under Rule 606(b)

Like its federal counterpart, North Carolina Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

And, as I have previously noted,

Some courts have held that jurors' use of a dictionary to define the elements of a crime or words in jury instruction does not constitute the use of extraneous prejudicial information because their use of the dictionary is for the purpose of defining a legal term rather and does not relate to "facts under deliberation." See, e.g., United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir. 1988).  Other courts have held that jurors' use of a dictionary is not inherently prejudicial but have noted that in rare cases such use can require a new trial.  See, e.g., United States v. Henley, 28 F.3d 1111, 1115-16 (9th Cir. 2001).  Finally, some courts have found that it's quite possible that jurors' use of a dictionary can require a new trial, especially when jurors use the dictionary to define legal terms. See, e.g., Sharrief v. Gerlach, 798 So.2d 646, 652 (Ala. 2001).

As the recent opinion of the Court of Appeals of North Carolina in State v. Patino, 2010 WL 3860847 (N.C.App. 2010), makes clear, North Carolina courts (kind of) fall under the first category of courts.

In Patino, Jonathan Patino was convicted of sexual battery. Thereafter,

the day after the verdict was delivered, at the start of the sentencing hearing, defendant's trial counsel moved for a new trial and told the trial court that several jurors had spoken with defense counsel and admitted looking up various legal terms (sexual gratification, reasonable doubt, intent, etc.), as well as the sexual battery statute, on the Internet during the trial. Defense counsel contended that the jury committed misconduct by consulting outside sources of information and disobeying the trial court's instruction not to do so. The trial court did not conduct any further inquiry and denied defendant's motion.

After he was sentenced, Patino appealed this and other rulings, and the Court of Appeals of North Carolina affirmed, finding that

Because definitions of legal terms are not extraneous information under Rule 606 and did not implicate defendant's constitutional right to confront witnesses against him, the allegations raised by defendant's trial counsel were not proper matters for an inquiry by the trial court. Thus, the trial court did not abuse its discretion in failing to conduct further inquiry into the allegations or in denying defendant's motion for a new trial.

I don't see the logic of the Court of Appeals of North Carolina. Extraneous prejudicial information is generally thought to be "information that was not admitted into evidence but nevertheless bears on a fact at issue in the case." Robinson v. Polk, 438 F.3d 350, 363 (4^th Cir. 2006). Now, dictionary definitions might not be prejudicial because they might not bear upon facts at issue in cases. But I don't see how they could be defined as anything but external in that they are information not presented at trial. I also think that they are prejudicial because they can compete with the legal definitions involved in a trial (e.g., the legal definition of "sexual gratification" could be quite different from the dictionary definition of "sexual gratification"). But I can at least see the logic of courts reaching the opposite conclusion. BuI don't see the logic of defining dictionary definitions as anything but external information.

-CM

My Memory Is Failing Me: California Court Finds Right To Confrontation Preserved Despite "Forgetful" Witness

California Evidence Code Section 240(a)(3) states that

Except as otherwise provided in subdivision (b), "unavailable as a witness" means that the declarant is any of the following:

(3) Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.

And the consequence of a declarant being unavailable as a witness is that certain hearsay statements are admissible under certain exceptions to the rule against hearsay. So, let's say that a declarant takes the witness stand at a criminal defendant's trial and testifies to memory loss. That declarant will be deemed "unavailable" under Section 240(a)(3), potentially allowing for the admission of some of his prior hearsay statements. But does the admission of such statements violate the defendant's rights under the Confrontation Clause? According to the recent opinion of the Court of Appeal, First District, Division 1, California, in In re T.G., 2010 WL 3898052 (Cal.App. 1 Dist. 2010), the answer is "no." As a general proposition, I agree, but I disagree with the court's conclusion in the case before it. 

In In re T.G., T.G. appealed from a jurisdictional order sustaining charges that he participated in the commission of an armed robbery and attempted to dissuade the victim from testifying against him. That victim was Miguel G., and at trial, he identified one of his robbers, but, when the prosecutor asked him to identify the second robber, he claimed he no longer remembered who the second person was. Thereafter,

The prosecutor got Miguel to admit that when questioned by police on the night of the robbery, he had (1) identified T.G. as the second robber, (2) provided a physical description of the second robber and description of his clothes that matched T.G. when he was apprehended a short time later, (3) pointed out T.G. as the second robber to police when he spotted him walking in the neighborhood that night, and (4) had been truthful with police when he described the incident and identified the second robber.

Then,

Pressed by an openly skeptical prosecutor to explain his inability to identify T.G. as the robber at the hearing, Miguel testified, "I don't know. I just don't remember. I got hit by a car and was in a coma for three days." Miguel could not remember when the accident happened except that it was after he was robbed. The prosecution sought to develop a different theory to explain Miguel's lapse of memory-his fear of T.G. taking retribution against him or his family for testifying against him. Miguel admitted that T.G. had called him and threatened him approximately three times since the robbery, and that friends of T.G. had also threatened him on the telephone and in person.

In his appeal, T.G. claimed that the admission of Miguel's prior statements violated his rights under the Confrontation Clause because Miguel was "unavailable" as a witness. In rejecting this argument, the court cited to the opinion of the United States Supreme Court in United States v. Owens, 484 U.S. 554 (1988), for the proposition that "Although the right of confrontation requires that an accused receive 'an adequate opportunity to cross-examine adverse witnesses'..., it does not protect against testimony that is 'marred by forgetfulness, confusion, or evasion.'"

Now, I certainly agree with the court that if Miguel indeed were suffering from memory loss, he was "unavailable" for purposes of the rule against hearsay but "available" for cross-examination for purposes of the Confrontation Clause. But that's not what the trial court found. According to the appellate court, "In this case, the trial court, the prosecution, and the defense itself all came to the conclusion that Miguel's claim of memory loss was fabricated."

This being the case, the court should have found that Miguel was not "unavailable" under California Evidence Code Section 240(a)(3). Instead, it should have required him to render complete testimony or be held in contempt of court. Because the court did not do so, I think that T.G.'s rights under the Confrontation Clause were violated.

-CM

Double Take: "The Good Wife" Gets Military Double Jeopardy Issue Right Based On "Dual Sovereignty" Doctrine

Last week's episode of "The Good Wife" was pretty interesting. At the start of the episode, Alicia and Will secure a "not guilty" verdict in Illinois state court for an Army reservist charged with murdering his wife. The reservist is then charged with the same crime in military court, with viewers given the explanation that double jeopardy does not apply. So, did the show get it right? It turns out that the answer is "yes" based upon the "dual sovereignty" doctrine. If you want a full explanation of the doctrine (and a fascinating theory of how it should apply in the international legal context), you should check out the excellent article by SMU Dedman School of Law Professor Anthony J. Colangelo, Double Jeopardy and Multiple Sovereigns: A Jurisdictional Theory, 86 Wash. U. L. Rev. 769 (2009). Here, however, are the basics:

The doctrine "is founded on the...conception of crime as an offense against the sovereignty of the government." It holds that "[w]hen a defendant in a single act violates the (peace and dignity) of two sovereigns by breaking the laws of each, he has committed two distinct 'offences.'" No violation of the prohibition on double jeopardy results from successive prosecutions by different sovereigns, according to the Court, because "by one act [the defendant] has committed two offences, for each of which he is justly punishable." The defendant, in other words, is not being prosecuted twice for the same "offence" if another sovereign successively prosecutes for the same act--even if the second sovereign prosecutes using a law identical to that used in the first prosecution.

So, what does this all mean with regard to the situation in "The Good Wife,"  and why did the show get it right? 

Well, in its 1907 opinion in Grafton v. United States, 206 U.S. 333 (1907), the Supreme Court

held that a homicide prosecution by military court martial foreclosed a successive prosecution for the same homicide by the civil justice system in the then-U.S. territory of the Philippines....[In Grafton], the court martial prosecuted Grafton for "the crime of homicide as defined by the Penal Code of the Philippines." Because the court martial applied the civil law definition of homicide, the Court found that the successive civil court prosecution at issue in the case was "for the identical offense."

The Supreme Court then turned to the argument that, notwithstanding the court martial use of the Filipino criminal code definition of homicide, the military and civil authorities in a U.S. territory constituted distinct sovereigns--each with an independent power to prescribe offenses and to prosecute--and consequently no double jeopardy barrier arose to block a successive civil court prosecution for the same acts. The Court rejected this argument and resolved the issue entirely in terms of jurisdiction.

Because Congress had exclusive prescriptive jurisdiction over the territories, and created the territorial courts and authorized their adjudicative jurisdiction, the courts were capable of applying only U.S. law. The Court found "[t]he jurisdiction and authority of the United States over that territory and its inhabitants, for all legitimate purposes of government, is paramount." It followed that "[i]f...a person be tried for an offense in a tribunal deriving its jurisdiction and authority from the United States and is acquitted or convicted, he cannot again be tried for the same offense in another tribunal deriving its jurisdiction and authority from the United States." Since both the military court martial and the territorial civil court derived jurisdiction from the U.S. government, and thus necessarily prosecuted for a crime against the laws of the United States, "a second trial of the accused for that crime in the same or another court, civil or military, of the same government" violated double jeopardy.

Thereafter, in 1950, this protection for servicemembers against double jeopardy was codified in Article 44(a) of the Uniform Code of Military Justice, which provides that “No person shall, without his consent, be tried a second time for the same offense." At this point, you may be thinking that it is clear that the reservist on "The Good Wife" could not have been prosecuted again in military court. But wait, there's more.

In its 1982 opinion in United States v. Stokes, 12 M.J. 229, (CMA 1982), the U.S. Court of Military Appeals (which has now been renamed the U.S. Court of Appeals for the Armed Forces) held that

When the Uniform Code was first enacted, it had not been firmly established that service members were entitled to the Fifth Amendment protection against former jeopardy....However, Article 44(a) of the Code...mooted the issue by commanding, "No person may, without his consent, be tried a second time for the same offense." Undoubtedly this provision was not intended to abolish the dual-sovereignties rule that had been applied in interpreting the constitutional guarantee against successive trials for the same offense. Thus, trial by a court-martial is barred by the Code only if the accused has already been tried in a court which derives its authority from the Federal Government....But a trial by court-martial is not barred if the earlier trial was by a state or foreign court. (emphasis added).

Thus, because the reservist's earlier trial was in Illinois state court, there was no double jeopardy problem with his subsequent trial by court-martial in military court.

That's not to say, though, that the show got everything right. During the court-martial, Alicia learns (1) that an Army wife previously said that the reservist's wife slept with her husband's Commanding Officer based upon the promise that he would prevent her husband from being redeployed, but (2) that she is unwilling to provide this testimony at trial. Thus, Alicia calls the Army wife, knowing that she has nothing useful to say at trial, for the sole purpose of thereafter calling another witness to impeach her through her prior inconsistent statement. Of course the purpose of this impeachment is not really to impeach the Army wife (i.e., to show that she is untrustworthy as a witness); instead, the purpose is for the prior statement to be considered as substantive evidence so that the Commanding Officer becomes an alternate suspect.

The classic case deeming such "impeachment" improper is actually a military case as well. In United States v. Ince, 21 F.3d 576 (4th Cir. 1994), Nigel Ince was charged with assault with a dangerous weapon, with intent to do bodily harm. At trial, the prosecution called Angela Neumann, who previously told a military policeman (MP) that Ince admitted to her that he committed the crime charged. When Neumann took the witness stand, however, she testified that her memory failed her. Thereafter, the prosecution called the MP to "impeach" her through her prior statement.

The first trial ended with a deadlocked jury, prompting a second trial, during which the prosecution again called Neumann, knowing that she had nothing to contribute to the prosecution's case. When she again claimed memory loss, the prosecution again called the MP to "impeach" her through her prior statement. In reversing Ince's conviction, the Fourth Circuit found that because the

so-called "impeachment" testimony was both highly prejudicial and devoid of probative value as impeachment evidence, the trial judge should have recognized the Government's tactic for what it was-an attempt to circumvent the hearsay rule and to infect the jury with otherwise inadmissible evidence of Ince's alleged confession.

In other words, you can't call a witness for the sole purpose of impeaching him or her (and getting his or her prior hearsay statement before the jury), so the technique used on "The Good Wife" was improper.

I'm not sure whether Ince was ever retried in federal district court. But if he were, and if he were acquitted, he could not have been subjected to a court-martial. Why? Unlike the defendant on "The Good Wife," he was tried in federal court, meaning that Article 44(a) of the Uniform Code of Military Justice was applicable and that double jeopardy precluded a successive prosecution.

-CM

The Long Lead: Court Of Appeals Of Ohio Finds No Problem With Judge Asking Leading Questions To Prosecution's Expert Witness

Federal Rule of Evidence 614(b) provides that "The court may interrogate witnesses, whether called by itself or by a party." Meanwhile, Ohio Rule of Evidence 614(B) makes explicit what is implicit in its federal counterpart. It provides that "The court may interrogate witnesses, in an impartial manner, whether called by itself or by a party." (emphasis added). So, when does the court interrogate witnesses in a partial manner? Apparently not by asking leading questions to the prosecution's expert witness after her testimony has been attacked by defense counsel, at least according to the recent opinion of the Court of Appeals of Ohio, Twelfth District, in its recent opinion in State v. Stout, 2010 WL 3836158 (Ohio App. 12 Dist. 2010).

In Stout, James Stout was convicted of harassment by an inmate after he allegedly threw a cup filled with his urine in the face of corrections officer Richard Stiehl. At trial, the prosecution

introduced the testimony of Sarah Glass, a forensic scientist...Glass testified that she performed an amylase test on a stain on Officer Stiehl's uniform shirt. She explained that amylase is an enzyme found in saliva, and is also present in other bodily fluids, including urine, in "small amounts." Glass stated that the amylase test performed on Stiehl's shirt yielded a positive result, indicating the presence of the enzyme. She testified that based upon her training and experience, the presence of amylase indicated that there "could be saliva there." She also stated that there could be other bodily substances present.

[Stout] testified at trial and admitted to throwing fluid on Stiehl, but claimed that it was water from the toilet in his cell....

The nature of the substance thrown on Officer Stiehl was disputed at length at trial. Glass admitted on cross-examination that although the test she performed detected the amylase enzyme, it did not necessarily indicate that a bodily substance was present. Glass explained that the enzyme is produced by both humans and animals, and is also found in food products. Glass further testified that she was not told to perform any specific tests on Stiehl's uniform shirt, and chose the amylase test because it was the most expedient and cost-effective test to perform in checking for the presence of saliva. She also testified that she was not instructed to conduct a creatinine test on the shirt, which is specifically used to test for the presence of urine.

After Stout tried to establish that the amylase test did not conclusively prove that the stain on Stiehl's uniform shirt was in fact a bodily substance during recross-examination of Glass, the trial judge engaged in the following interrogation of Glass:

THE COURT: I do have a question or two. They send you this evidence. You're asked to run a test to determine if there are bodily fluids on the shirt. Is that what you are doing?

[GLASS]: Yes.

THE COURT: Okay. You have a choice as to whether you can test for saliva, urine, or blood?

[GLASS]: Or feces or semen.

THE COURT: Okay. You have a choice-you can test for any of those specifically, correct?

[GLASS]: Correct.

THE COURT: Do you know what substance you were supposed to test for when you got this case?

[GLASS]: No, I did not.

THE COURT: You were just testing to see whether or not there was a bodily fluid?

[GLASS]: Yes.

THE COURT: And you ran the first and the easiest test being the amylase test?

[GLASS]: Correct.

THE COURT: Once you found-you got a positive result from that, you stopped running tests-

[GLASS]: Correct.

THE COURT:-because you saw there was a bodily fluid?

[GLASS]: Yes.

THE COURT: Okay. Are you able to-

[DEFENSE COUNSEL]: Your Honor, could we approach?

THE COURT: One moment. Are you able to tell any concentrations by specific numbers?

[GLASS]: We do have a standard that we apply to paper that is a very deliberate concentration type amylase and if the positive on what we test, the stain that we test, the positive is greater than that standard that is positive, anything less we don't call positive.

Thereafter, defense counsel objected to this line of questioning at a sidebar conference, claiming that it was an attempt to bolster Glass' testimony but the trial judge overruled his objection. After he was convicted, Stout appealed, claiming that the above interrogation exceeded the scope of the trial judge's interrogation authority under Ohio Rule of Evidence 614(B). In rejecting this argument, the Court of Appeals of Ohio, Twelfth District, found that

Although the trial court's questions came close to crossing the line from "helpful clarification to unwarranted interference," upon review, we conclude that the questions did not go beyond the parameters of Evid.R. 614(B)....The tenor and nature of the court's questions did not indicate that it was expressing an opinion as to the evidence or Glass' credibility. Rather, they consisted of attempts to clarify her testimony.

Really? It seems to me like the trial judge asked, essentially, leading questions to which he already knew the answer. Consider, for example, this exchange:

THE COURT: You were just testing to see whether or not there was a bodily fluid?

[GLASS]: Yes.

THE COURT: And you ran the first and the easiest test being the amylase test?

[GLASS]: Correct.

THE COURT: Once you found-you got a positive result from that, you stopped running tests-

[GLASS]: Correct.

THE COURT:-because you saw there was a bodily fluid?

[GLASS]: Yes.

This was not the trial judge clarifying testimony. This was the trial judge ostensibly restating Glass' testimony in an attempt to bolster her testimony after defense counsel had attacked it. Or at least, that's the way I see it.

-CM

Little Bribes: Fifth Circuit Finds Bribery Is Per Se A Crime Of Dishonesty Or False Statement For Rule 609(a)(2) Purposes

Federal Rule of Evidence 609(a)(2) provides that

For the purpose of attacking the character for truthfulness of a witness,

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

Moreover, the Advisory Committee's Note to Rule 609 provides that crimes of dishonesty or false statement include

crimes such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully.

So, what about a conviction for bribery? According to the Fifth Circuit's opinion in United States v. Jefferson, 2010 WL 895040 (5th Cir. 2010), such a conviction also qualifies for admission under Rule 609(a)(2). I'm not sure that I agree. 

In Jefferson, Mose Jefferson and Renee Pratt were charged, inter alia, with conspiracy to violate the Racketeer Influenced and Corrupt Organizations (RICO) Act. After the district court judge deemed Jefferson's prior convictions for bribery and obstruction of justice inadmissible in the event that he testified, the government appealed. The Fifth Circuit found that the district court judge erred in deeming the obstruction of justice convictions inadmissible because they were per se admissible under Federal Rule of Evidence 609(a)(2) based upon the fact that they were convictions resulting from Jefferson knowingly and corruptly attempting to persuade an individual to lie to federal law enforcement authorities.

Meanwhile, the Fifth Circuit found that the district court judge erred in deeming the bribery convictions inadmissible because they were per se admissible under Federal Rule of Evidence 609(a)(2) based upon the fact that "[B]ribery is a crimen falsi in that it involves dishonesty....Hence, it is automatically admissible [under] Fed.R.Evid. 609(a)(2)."

Now, I certainly agree that bribery can be a crime involving dishonesty. For instance, if Jefferson also bribed the individual to lie to federal law enforcement authorities (which may very well have been the case), the act of bribery would have been a crime of dishonesty. But let's say that a defendant bribes a candidate so that he will kick some money his way in the event that he is elected (by awarding him a government contract, etc.). If a defendant points a gun at a bank teller and tells him to, well, kick some money his way, this act of bank robbery is not thought to be a crime of dishonesty or false statement for Rule 609(a)(2) purposes.

And I think that this makes sense. In this latter example, the defendant makes his true intentions to the teller clear and is telling the truth: He wants money. This makes it fundamentally different from the case where a defendant asks to borrow a friend's car with no intention of returning it or a retailer pulls a bait and switch on a customer, acts that would qualify as crimes of dishonesty or false statement. In my mind, acts of bribery are similar to the bank robbery example. The defendant makes his true intentions to the potential politician clear and is telling the truth: He wants money. I guess in a sense you could say that the defendant in this case is cheating the system and asking the politician to do something illegal, but so is the bank robber in the example above.

In summation, I don't think that acts of bribery always qualify as crimes of dishonesty or false statement, and I think that the Fifth Circuit should have stated the facts of Jefferson's bribery convictions.

-CM