EvidenceProf Blog

Some Call It Subterfuge: Court Of Appeals Of North Carolina Finds Prosecution's Impeachment Of Own Witness Was Proper

Like its federal counterpart, North Carolina Rule of Evidence 607 provides that "[t]he credibility of a witness may be attacked by any party, including the party calling him. Rules such as North Carolina Rule of Evidence 607 were designed to replace the common law voucher rule, which held that a party, in effect, vouched for the credibility of the witnesses it called, meaning that it could not impeach them. A party, however, cannot call a witness for the sole or primary purpose of impeaching a witness, such as when a party calls a witness who it knows will not provide helpful testimony at trial so that the party can impeach the witness with a prior inconsistent statement that it helpful to the party. But how is a court supposed to decide when a party legitimately impeaches its own witness and when a party is using Rule 607 as a subterfuge for putting otherwise inadmissible hearsay before the jury? This was the question addressed by the recent opinion of the Court of Appeals of North Carolina in State v. Gabriel, 2010 WL 4068684 (N.C.App. 2010).

In Gabriel, Damien Lanel Gabriel was indicted on one count of first-degree murder and one count of assault with a deadly weapon with intent to kill inflicting serious injury. These crimes were committed at a house belonging to Dennis Brown.

At trial, the State called Brown to testify regarding the events leading up to, and immediately following, the shooting. Brown testified that he did not call Defendant on the day of the shooting and ask Defendant to bring a gun to Brown's house and also that he did not recall whether he saw Defendant enter Brown's house with a weapon immediately after the shooting. Because this testimony was inconsistent with Brown's prior statements to police, the State moved the court to allow the State to treat Brown as a hostile witness. After the court granted the motion over Defendant's objection, the State extensively cross-examined Brown on his prior statements. Brown denied telling police officers that he called Defendant to bring a gun and denied telling officers that he saw Defendant with a gun following the shooting.

The State later attempted to introduce a redacted version of a transcript of Brown's prior statements. Over Defendant's objection, the trial court ruled the statements admissible for the purpose of impeaching Brown's credibility.

After he was convicted, Gabriel appealed, claiming, inter alia, that the admission of Brown's out-of-court statements for the purpose of impeachment was error on the ground that "the prosecutor used the guise of impeaching its own witness as a subterfuge for putting otherwise inadmissible hearsay before the jury when the record failed to show the prosecutor was surprised by Brown's in-court testimony[.]" The Court of Appeals of North Carolina agreed with Gabriel that if this were what the prosecution did, its actions would have been improper, noting that in State v. Hunt, 378 S.E.2d 754 (N.C. 1989), the Supreme Court of North Carolina

acknowledged that the "overwhelming weight of federal authority with regard to the use of the identical Fed.R.Evid. 607 has long been that impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible."...

The Court in Hunt further noted that

[i]t is the rare case in which a federal court has found that the introduction of hearsay statements by the state to impeach its own witness was not motivated primarily (or solely) by a desire to put the substance of that statement before the jury. Circumstances indicating good faith and the absence of subterfuge in these exceptional cases have included the facts that the witness's testimony was extensive and vital to the government's case; that the party calling the witness was genuinely surprised by his reversal; or that the trial court followed the introduction of the statement with an effective limiting instruction.

The court, however, found that the case before it was one of these rare cases. According to the court,

the introduction of Brown's prior statements was preceded by a limiting instruction explaining to the jury that "the Court is allowing these exhibits to be admitted for one purpose and for one purpose alone, and that purpose is what is known as impeachment of certain testimony of the witness, Dennis Brown." These instructions are sufficient for the jury to distinguish this evidence as impeachment evidence, rather than substantive evidence.

Further,...in this case Brown's testimony was valuable to the State's case in that it described Brown's home and backyard in relation to the path through the woods leading to the shopping center where Defendant was spotted after the shooting, it laid the foundation for admission of Defendant's telephone calls from prison to Brown, and it corroborated other eyewitness testimony....

Finally, the facts of this case do not indicate...that "the state appeared to know before [the witness] was called to the stand that she would not cooperate by reiterating her prior statements."...In this case, while Brown's "lack of cooperation with the State and his failure to appear voluntarily until [ ] after being served with a show-cause order" certainly tend to show that Brown was reluctant to testify at Defendant's trial, there is nothing to indicate that the State knew Brown would refuse to testify to, or would testify inconsistently with, the matters contained in Brown's prior statement.

-CM

Heightened Everything?: Why The Fifth Circuit's "Heightened" Abuse Of Discretion Standard In Criminal Cases Isn't Really Heightened

Templeton argues that the district court abused its discretion when it admitted evidence of his prior cocaine trafficking and his 2004 arrest for cocaine possession. We review the admission of evidence under Federal Rule of Evidence 404(b) under a "heightened" abuse of discretion standard. "Evidence in criminal trials must be strictly relevant to the particular offense charged." United States v. Templeton, 2010 WL 4026122 (5th Cir. 2010).

So, what exactly does this mean? Is this "heightened" abuse of discretion standard different than the (regular) abuse of discretion standard used in civil cases? After my review of case law, my conclusion is that the answer is "no." 

In Templeton, as noted, the Fifth Circuit found that a "heightened" abuse of discretion standard applies to evidence admitted under Rule 404(b). This "heightened" abuse of discretion standard, however, does not apply only to evidence admitted under Rule 404(b) but also to evidence admitted under any rule of evidence in criminal trials. The first Fifth Circuit case to reach this conclusion was United States v. Anderson, 933 F.2d 1261 (5th Cir. 1991), in which the court held that

We apply a highly deferential standard to a trial court's evidentiary rulings and will reverse only for an abuse of discretion. Nevertheless, our review of evidentiary rulings in criminal trials is necessarily heightened. As the Supreme Court has instructed, evidence in criminal trials must be "strictly relevant to the particular offense charged." Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949).

Williams, a case decided before the adoption of the Federal Rules of Evidence, held that

Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. These rules rest in part on a necessity to prevent a time consuming and confusing trial of collateral issues. They were also designed to prevent tribunals concerned solely with the issue of guilt of a particular offense from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct.

In other words, the language from Williams that the Fifth Circuit adopted in Anderson actually did deal with evidence admitted under Rule 404(b): character evidence. Basically, the Court was holding that even if character evidence (e.g., evidence that a defendant on trial for cracking a safe cracked a safe in the past) is somewhat relevant to the particular offense charged (e.g., to prove he knew how to crack safes), an appellate court should find error with a trial court's decision to admit it if it is not strictly relevant to the crime charged (e.g., if its admission was a waste of time or confused the jury).

If we look at the Federal Rules of Evidence, however, it is easy to see why the Fifth Circuit extended Williams' rationale to all criminal cases. Federal Rule of Evidence 401 provides that

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Relevant evidence, though, isn't automatically admissible. Instead, Federal Rule of Evidence 403 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.

In other words, for evidence to be admissible, it can't simply be somewhat (or logically) relevant; instead, it must be strictly (or legally) relevant. But here's the thing. The Federal Rules of Evidence apply in both civil and criminal actions. Thus, evidence must be strictly relevant in both civil and criminal trials. Therefore, it seems to me that the Fifth Circuit's conclusion that a "heightened" abuse of discretion standard applies to criminal trials is a meaningless vestige from the days before the adoption of the Federal Rules of Evidence. Now that Rule 403 applies in both criminal and civil cases, the standard of review should be the same in both types of cases. And, in my review of Fifth Circuit cases, I have found no difference in the abuse of discretion standard used by the court in civil and criminal cases, despite the fact that the Fifth Circuit labels the standard in the latter type of cases as a "heightened" abuse of discretion standard.

-CM

Proper Proffer?: Third Circuit Finds No Problem With Proffer Statement Waiving Defendant's Right To Kastigar Hearing

In Kastigar v. United States, 406 U.S. 441 (1972), the Supreme Court held that the Fifth Amendment does not require a grant of transactional immunity before a witness' testimony can be compelled; instead, a grant of use and derivative use testimony is coextensive with the privilege against self-incrimination. Conversely, the Court held that a mere grant of use immunity alone is not coextensive with the privilege. Thus, if the government decides to prosecute a witness who testified under an immunity agreement, the court will hold a Kastigar hearing to determine whether the prosecution is properly based upon independent evidence or whether it is improperly based upon evidence derived from the witness' testimony. 

Meanwhile, Federal Rule of Evidence 410(4) indicates that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

So, can the prosecutor force the defendant and his attorney to sign the following statement to get to the plea bargaining table?:

[T]he government may make derivative use of, and may pursue investigative leads suggested by, statements made or information provided by you or your client. That is:

[a] your client waves any right to challenge such derivative use and agrees that such use is proper; and

[b] your client agrees that Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410 do not govern such derivative use.

This provision eliminates the necessity of a Kastigar hearing at which the government would have to prove that its evidence at trial or other legal proceeding is untainted by statements made or information provided during the “off-the-record” proffer.

According to the recent opinion of the Third Circuit in United States v. Merz, 2010 WL 3965856 (3rd Cir. 2010), the answer is "yes."

In Merz, Robert Merz was convicted of advertising, possessing, receiving, and transporting child pornography. Some of the evidence used to convict him was derived from statements that Merz made during plea discussions. Thos plea discussions were preceded by the defendant and his attorney signing the proffer statement listed above. 

After he was convicted, Merz appealed, claiming, inter alia, that "even though the Government's proffer letter reserved the right to make derivative use of his proffer statement, the Government's lack of good faith required the evidence derived from his proffer session be excluded." In rejecting this argument, the Third Circuit found that

Other Circuits have held that, because proffer agreements are interpreted in light of contract law principles, a provision allowing for derivative use is valid so long as the proffer letter clearly reserves the right to use derivative information....Like these courts, we decline to find that prosecutors violated a duty of good faith, if one applied, by adhering to the terms of the proffer letter. As the Government did not violate the terms of the agreement with Merz, there is no basis to exclude the evidence.

I guess I see the Third Circuit's point, but I think that the court missed Merz's point. I'm guessing that his point was that the government acted in bad faith by getting him to sign the proffer statement and make certain incriminatory statements while it had no intention of offering him a plea bargain. I'm not sure whether such bad faith by the government should be enough to have a proffer statement deemed invalid, but I think that the court should at least have explored this issue.

-CM

Arm Of The Judiciary: New Jersey Appellate Court Finds Judge's Clarification About Translations Didn't Violate Rule 605

A defendant is charged with armed robbery and related offenses. At trial, a Spanish speaking employee of the store that the defendant allegedly robbed testified through two interpreters that the defendant robbed the store. Thereafter, defense counsel impeaches the employee-witness through testimony that the witness gave during a pretrial hearing, during which he referred to the incident as an "asulto," which a different interpreter translated as an assault. During a lunch recess, the two trial interpreters approach the judge in his chambers and tell him that "asulto," has two meanings, assault and robbery. Over defense counsel's objection, the judge thereafter instructs the jury that the trial interpreters told him about the two meanings of "asulto." Has the judge committed error? According to the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Baylor, 2010 WL 4028585 (N.J.Super.A.D. 2010), the answer is "no." I agree.

The facts in Baylor were as stated above. After the employee testified that the defendant robbed the store, defense counsel impeached him through the following exchange:

Q. And do you remember being asked the following questions and giving the following answer, on page 5 line 9?

A. Yes. Yes.

Q. Question by [the prosecutor] to you, "Did a robbery occur at the store on October 24th, 2005? Answer: It was kind of an assault."

A. A robbery, yes, a robbery. The come in with guns and it is a robbery...

THE COURT: Do you remember him asking you what happened and you said there was an assault, or like an assault?

THE WITNESS: Yes. Yes. Yes...

Q. And do you remember being asked yet again a second time,...again from [the prosecutor], "Now, you said the incident was kind of an assault? Yes, it was an assault."...

Sir, did you give the following answer a second time, “yes, it was an assault?”

A. Yes.

Subsequently, after the interpreters talked with the judge in his chambers, the judge gave the following jury instruction:

Now, another issue that has come up, the court reporters that we have today approached me at lunchtime and said, you know, there may be differences in interpretation of a given word, assault. And assault, they indicate may mean robbery in Spanish. Well, that could be important in this case. We have an interpretation from a couple of days ago....

There was a record from a couple days ago, and you heard the questioning in that connection by [defense counsel], he asked was it a robbery, and the answer a couple of days ago, it was an assault. Or it was a robbery, kind of an assault, and then he was further asked, he said it was a robbery. He said it was a robbery.

But there is much confusion in my mind that I felt I had to delve into this with this explanation, particularly so because today he did use both the phrases or both terms, and I asked our court reporter to read it back to everyone at lunchtime before you got here, and he said, yes, the assault, the robbery. So, there you are.

I'm not testifying, I'm only telling you that there is a question concerning that interpretation. I think counsel may ask questions to further clarify this of the witness himself. It is terribly important to have an understanding from him as to what he means by a given word. That is really the critical aspect of it, as I see it.

We reject defendant's contentions on appeal that the judge's instruction to the jury was error because it constituted hearsay, testimony by the judge, or expert evidence without proper foundation.

After the defendant was convicted, he appealed, claiming that the judge's actions violated New Jersey Rule of Evidence 605, which provides that "The judge presiding at the trial may not testify as a witness in that trial. No objection need be made to preserve the point." In rejecting this argument, the Superior Court of New Jersey, Appellate Division, found that

The judge gave explanatory instructions to the jury after the interpreters informed him of their clarification of Teofilo's testimony. The judge was no more a witness than at any other time when a trial judge instructs the jury regarding the law, a point of evidence, or the nature of a ruling that affects the jury's consideration of the evidence. Defendant's contention is untenable that the judge should have allowed a potentially incorrect interpretation to stand after it was brought to his attention. We find no abuse of discretion in the trial judge's clarification of the interpreters' translation.

What was unstated in the court's opinion, but what the trial judge correctly found, was that "court interpreters are an arm of the judiciary, to aid and assist." Why was this point important? Well, courts have found that judges violate Rule 605 if they engage in ex parte communications and then relay those communications to the jury. See, e.g., State v. Ryan, 601 N.W.2d 473 (Neb. 1999). Communications with interpreters, however, are not ex parte, i.e., with one party, because judges appoint interpreters pursuant to Federal Rule of Evidence 28 and state counterparts, meaning that they are an arm of the judiciary.

-CM

Discovery Channel: Eastern District Of California Notes That Rules Of Evidence Don't Govern Discovery

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

So, what happens if a party seeks information relating to the opposing party's subsequent remedial measure(s) during discovery? Does the opposing party have to respond to such a discovery request? Well, as the recent opinion of the United States District Court for the Eastern District of California in Bernat v. City of California, 2010 WL 4008361 (E.D. Cal. 2010), makes clear, the answer is likely "yes" because the Federal Rules of Evidence merely govern the admissibility of evidence and do not control pretrial discovery.

In Bernat, John Bernat brought an action against, inter alia, the City of California City, the California City Police Department, Officer Standish Knowlton, and Lieutenant Eric Hurtado, claiming that he was subjected to excessive force by defendants Knowlton and Hurtado. During discovery, Bernat propounded a request for documents upon City seeking information that is contained within Knowlton's and Hurtado's personnel records. The City indicated that it refused to produce some of these documents because they contained evidence of subsequent remedial measures, which is inadmissible under Federal Rule of Evidence 407.

In rejecting this argument, the United States District Court for the Eastern District of California noted that Federal Rule of Evidence 407, like other Federal Rules of Evidence, merely "governs the admissibility of evidence; is does not control pretrial discovery." Instead, the scope of pretrial discovery is governed by Federal Rule of Civil Procedure 26(b)(1), which provides that

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

Based upon this standard, it is easy to see why evidence of subsequent remedial measures will often be discoverable even if it is not admissible at trial. Let's say that there are orders in Knowlton's and Hurtado's personnel records confining them to desk duty. These orders would clearly be subsequent remedial measures inadmissible under Federal Rule of Evidence 407. But it would be just as clear that some type of internal investigation against Knowlton and Hurtado regarding their actions against Bernat likely led to these orders. And the results of such an investigation would like be admissible. Thus, the discovery of evidence of these subsequent remedial measures would be calculated to lead to the discovery of admissible evidence and be proper under Federal Rule of Civil Procedure 26(b)(1).

-CM

This Can('t) Be My Testimony: Supreme Court Of Vermont Finds Judicial "Testimony" Automatically Requires New Trial

Like its federal counterpart, Vermont Rule of Evidence 605 provides that "[a] judge sitting at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point." Moreover, it is well established that Rule 605 applies not only to statements formally given from the witness stand but also, inter alia, to judges engaging in off-the-record fact gathering. So, when a trial judge violates Rule 605 by engaging in such fact gathering, can an appellate judge deem this violation harmless error? According to the recent opinion of the Supreme Court of Vermont in State v. Gokey, 2010 WL 3934332 (Vt. 2010), the answer is "no."

In Gokey, Randall Gokey was charged with lewd or lascivious conduct with a child. On the morning of the second day of trial, Gokey's attorney reported that Gokey was having health issues, and the trial judge "granted a continuance until the early afternoon for medical personnel to examine [Gokey]. During this recess an ambulance transported [Gokey] to the emergency room of a nearby hospital." When trial resumed the next afternoon, Gokey's counsel reported that Gokey was still at the hospital, and the judge suspended trial until the next day.

The next day, there was a question about whether the trial had to be delayed again based upon medications taken by Gokey. After some initial proceedings, during which the judge talked with the officers who transported Gokey to the hospital there was a break, after which the judge offered the following summary of her actions during the break:

The first thing I did was call Walgreen's and talk to the pharmacy manager there, who I do not know. His name is Dave. I don't think I've ever met him and I don't go to that pharmacy and that's why I called that one. He told me that the dose of medication that Mr. Gokey is [on is] a high dose of medication. That certain people react to things in different ways, and it also depends on what other types of medication they're taking, and that drowsiness is a side effect of the medication, Meclizine. I described to him what [the transporting officer] had said at the bench about how quickly this came on today and he said that that is inconsistent with the effects of this medication.

Thereafter, the judge

recounted to the court a second conversation she held in chambers with the two transport officers "to get an indication from them as to Mr. Gokey's behavior yesterday after taking his medication." She declared that "based on everything I've heard, I believe...that Mr. Gokey is malingering at this point." Neither defense counsel nor the State received any notice of or were present at either of the judge's conversations with the pharmacy manager or the two transport officers. Having introduced the substance of the discussions, the judge then called the officers to the stand and questioned them under oath about defendant's conduct during transport and while in the court's holding cell. After she finished questioning the deputies, both defense and prosecution were provided an opportunity to question the officers. The State did not ask any questions; defense counsel did not question the first officer, but inquired of the second the number of persons in defendant's holding cell at the time the officer observed his condition.

Defense counsel then

notified the court that the nurse at the jail was ready to transmit the list of medications defendant had taken during the morning, so long as the court faxed the nurse an order to release the information. Defense counsel also argued a doctor would be needed to interpret the medications and explain their side effects. Finally, she noted that the pharmacy manager the court had contacted was not present in court. The judge responded, "I know and that's why I put it on the record, because it's clearly not evidence." The court refused to hear any more evidence or grant the order to release information and decided to proceed....

After Gokey was eventually convicted, he appealed, claiming, inter alia, that the trial judge's actions violated Vermont Rule of Evidence 605. In finding that the trial judge indeed violated Rule 605, the Supreme Court found that the Rule covers not only statements by judges formally given from the witness stand but also judges engaging in off-the-record fact gathering, which essentially transforms them into witnesses.

The court then noted that Gokey asked it "to adopt a standard that when a judge acts as a witness in violation of Rule 605 prejudice is presumed and the judgment must be reversed." The court then acknowledged that "[s]everal other state courts have done so in similar contexts, recognizing that 'imposing a burden on a litigant to prove prejudice through the testimony of one disqualified from testifying is an impossible standard.'" In agreeing with these courts and reversing Gokey's conviction, The Vermont Supremes concluded that

Here, the trial court's initiation of the ex parte communications, whether actually relied upon or not, severely impaired, if not completely ruined, any appearance of neutrality, and we must presume prejudice to defendant. Though the judge stated the call to the pharmacy and the in camera meeting with the officers was not evidence-indeed in ruling on defendant's competence she claimed she "rel[ied only] on... the sworn testimony of the transport officers"-the damage to the appearance of impartiality had been done. This strict standard assuming prejudice is especially important when it is the trial judge who acts inappropriately because any challenge to her authority necessarily places the lawyer in the untenable position of having to decide whether to let the statement go unchallenged or risk antagonizing the trial judge by questioning her impartiality....Rule 605 itself supports adoption of this standard as it expressly notes that: "No objection [to a judge testifying as witness] need be made in order to preserve the point." We likewise hold that no showing of prejudice is required.

-CM

Darlin' Don't Refrain: Sixth Circuit Finds No Problem With Improperly Timed Admission Of Prior Consistent Statements

Federal Rule of Evidence 801(d)(1)(B) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive....

So, what happens if a party introduces a witness' alleged prior consistent statement before the opposing party charges the witness with recent fabrication or improper influence or motive, but the opposing party does later levy such a charge against the witness? That was the question addressed by the recent opinion of the Sixth Circuit in United States v. Wells, 2010 WL 3958647 (6th Cir. 2010).

In Wells, Oscar Wells was convicted of conspiracy to violate, and three counts of substantive violations of, the Hobbs Act. This conviction was secured in large part based upon the testimony of Wells' alleged co-conspirators, Jimmy Gates and Liberator Noce, who testified against Wells after they reached plea bargains with the government.

During her opening statement, the prosecutor referenced statements that Gates and Noce made to the FBI before they reached plea agreements with the government indicated that these statements would be consistent with their testimony at trial. During his opening statement, defense counsel then argued that Gates and Noce were untrustworthy based upon the plea bargains that they struck with the government in exchange for their testimony at trial. Thereafter, the prosecutor introduced the prior consistent statements made by Gates and Noce to the FBI during her direct examinations of Gates and Noce.

After he was convicted, Wells appealed, claiming, inter alia, that it was improper for the prosecutor to mention the prior statements to the FBI during his opening statement because he had not yet charged these witnesses with recent fabrication or improper influence or motive. In addressing this argument, the Sixth Circuit found that

The prosecutor's remarks in her opening statement concerning the consistent pretrial statements made by Noce and Insana were risky if not improper. Although it was reasonable to expect that Defendant would challenge the credibility of the witnesses based on their motive to secure a favorable plea bargain, the admissibility of the prior statements still hinged on whether such an attack was actually made. It is conceivable, for example, that a defendant would refrain from making this type of credibility attack for the very purpose of preventing the admissibility of a prior consistent statement. It is undoubtedly tempting, but generally unwise, for a prosecutor to try to predict the strategy opposing counsel will adopt, and then to try to blunt the strategy's impact. By prematurely calling attention to prior consistent statements in the opening statement, a prosecutor creates the chance of mistrial and an issue for appeal.

That said, the court found that any error committed by the district court in allowing these remarks during the prosecutor's opening statement was harmless because

Any potential prejudice that might otherwise have been inflicted upon Defendant by the remarks about prior consistent statements vanished during Defendant's opening statement. Defendant offers no suggestion that he would have refrained from charging the witnesses with improper motive to avoid the introduction of the prior consistent statements. Any such suggestion, if made, would be implausible since a major part of Defendant's defense was an attack on the credibility of the government witnesses. The prosecutor's remarks did nothing more than predict what would soon come out properly in the course of witness examination. Furthermore, there was considerable evidence of Defendants guilt, viz. the bank records and testimony that Defendant made four cash deposits on days that Gates cashed checks from Noce. Under these circumstances, we do not view the prosecutor's remarks concerning the prior consistent statements as flagrant.

I agree with the court's conclusion based upon Wells failing to argue that he would have refrained from charging the witnesses with improper motive. If he had made this argument, however, I wonder whether the court would have reached the opposite conclusion?

-CM