Tuesday, December 27, 2011
Collateral Damage: Court Of Appeals Of Arizona Finds Collateral Evidence Rule Doesn't Apply To Bias Evidence
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be 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.
The portion of Rule 608(b) that excludes extrinsic evidence of specific instances of conduct, however, only applies to instances of conduct unrelated to the case at hand used to prove that a witness is generally a liar. For instance, under Rule 608(b), defense counsel could ask an (eye)witness for the prosecution whether he ever cheated on his taxes but could not prove the act (of cheating) through extrinsic evidence. Conversely, defense counsel could both ask the (eye)witness whether some specific act (such as the defendant stealing his girlfriend) rendered him biased against the defendant and prove this act through extrinsic evidence, as is made clear by the recent opinion of the Court of Appeals of Arizona,Division 1, Department E., in State v. Herrera, 2011 WL 6747405 (Ariz.App. Div. 1 2011).
In Herrera, Hector Alberto Herrera appealed his convictions and sentences in one case for aggravated assault and assault and the resulting revocation of his probation and sentence in another case. Reyna P. was the alleged victim of his assaults. On appeal, Herrera claimed that
the superior court abused its discretion in allowing the State to impeach Reyna P. with evidence of the number of visits she had made to him in jail, evidence that on some of these visits she had identified herself as his "girlfriend," and evidence of the numerous phone calls he made to her from jail.
the court erred in admitting extrinsic evidence of Reyna P.'s jail visits and her identification of herself as his girlfriend because the evidence violated "a long-standing prohibition on impeachment with specific conduct that fell short of a felony conviction" and a prohibition against "bringing in extrinsic evidence to prove the collateral matter."
Herrera, of course, was referring to Arizona Rule of Evidence 608(b) and the so-called collateral evidence rule. That court, however, found this rule inapplicable to the impeachment of Reyna P. because
We have held, however, that "Rule 608(b) neither blocks an inquiry about conduct which is probative of bias nor precludes introduction of extrinsic evidence to prove such conduct."...
The State offered the evidence at issue in this case to show Reyna P. was biased in favor of Herrera and had a motive to lie for him, purposes that by definition are not "collateral."