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October 30, 2011
Forward Bias: Middle District Of Alabama Applies Rule 613(b) To Extrinsic Evidence Of Bias
Federal Rule of Evidence 613 provides that
(a) Examining witness concerning prior statement.
In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).
So, under Rule 613(b), extrinsic evidence of a witness' prior inconsistent statement is only admissible if "the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require." So, does the same hold with regard to extrinsic evidence of a witness' bias? According to the recent opinion of the United States District Court for the Middle District of Alabama in Johnson v. Alabama Community College System, 2011 WL 5078776 (M.D.Ala. 2011), the answer is "yes."In Johnson, several plaintiffs brought a class action against the Alabama Community College System and related entities, alleging that they were discriminated against through the use of the C-3 salary schedule or the defendants' manipulation thereof.
Before trial, the defendants filed objections to certain exhibits, including a letter which allegedly would have shown that a defense witness was biased against one of the plaintiffs. The Middle District of Alabama deferred its ruling on the admissiblity of this letter initially noting that if the letter did show that a defense witness was biased, it would have been admissible without regard to Federal Rule of Evidence 608(b). The court then noted that
There is a split of authority as to whether a foundation must be laid, and a witness given a chance to comment on the potential bias-proving evidence, before extrinsic evidence of bias is introduced. 27 Charles Allen Wright & Victor James Gold, Federal Practice and Procedure § 6095 (1990). Because confusion of the issues potentially may substantially outweigh the probative value of this evidence, should [plaintiff] Ward seek to use Exhibit 199 to establish bias of a testifying witness, she must first inquire about the fact of [the letter writer]'s complaint, as provided in Rule 613.
Here's the relevant portion of Wright & Gold cited by the court:
Authorities are split as to whether an impeaching party must give a witness a chance to explain or deny other facts indicating bias, such as the witness' conduct, as a condition to the admissibility of extrinsic evidence of those facts. Some commentators suggest no foundation is required because Rule 613 applies only to statements, not conduct. But the flaw in this argument is that Rule 613 has no direct connection to bias impeachment. As noted above, Rule 613 is persuasive in this context, but only as a guide to how discretion under Rules 403 and 611 should be exercised. The goals of those rules suggest that courts sometimes should require an impeaching party give the witness an opportunity to explain conduct indicating bias before extrinsic evidence is admitted. If mere words can be ambiguous indicators of bias, conduct can present even greater problems of interpretation. Thus, the witness' explanation of her conduct may be essential to drawing the proper inferences about bias. Further, time may be saved by giving the witness a chance first to admit to the conduct in question if, in so doing, extrinsic evidence on the subject becomes unnecessary.
Based on the discretionary nature of the powers created by Rules 403 and 611, it seems appropriate to treat this issue, like the others just discussed, with flexibility. In fact, given the broad discretionary powers granted by Rules 403 and 611, trial courts should have the flexibility to dispense with any foundation for extrinsic evidence whenever the interests of promoting the truth and saving time so require.
October 30, 2011 | Permalink
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It used to be that lawyers were expected to "confront" the witness with the bias impeachment on cross, to save time. If the bias is admitted, there is no need for extrinsic evidence. I like the "discretion" solution proposed above.
Posted by: Rick Underwood | Oct 30, 2011 4:20:49 PM