Circuit Court Finds Defendant Had Right to Cross-Examine Witness about Swastika Tattoos

The broad discretion that the Sixth Amendment confrontation clause provides to trial judges to control the presentation of evidence was abused when a federal district judge barred a defendant from cross-examining a government witness about the witness's swastika tattoos, the U.S. Court of Appeals for the Second Circuit held Nov. 18 (United States v. Figueroa, 2d Cir., No. 06-1595-cr, 11/18/08).

The court reasoned that the witness's tattoos tended to suggest that the witness would lie in court about ethnic groups, including the one to which the accused said he belonged.

The defendant was charged with illegally possessing a sawed-off rifle that was found at his residence. At trial, one of the government's witnesses was a man who testified that he had sold the gun to the defendant a week before it was seized by police and that at the time of the sale the barrel had not been shortened.

The defendant, who was an acquaintance of the witness, knew that the witness had swastika tattoos on his body, and he sought to cross-examine the witness about any bias toward the minority ethnic group of which the defendant was a member. The district court concluded that the fact that someone has a swastika tattoo does not make that person more or less likely to be truthful and, therefore, the defendant's proposed cross-examination was an effort to present “bad character” evidence in violation of Fed. R. Evid. 608(b).

Under established U.S. Supreme Court and Second Circuit precedent, district judges have wide latitude to restrict defense attorneys' cross-examination of prosecution witnesses about relevant matters in order to protect witnesses, prevent repetitive evidence, and avoid confusing or distracting juries. As explained in Delaware v. Van Arsdall, 475 U.S. 673 (1986), and its progeny, a criminal defendant can demonstrate a violation of the confrontation clause “by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness.”

Racism Is Prototypical Bias.

In an opinion by Judge Robert D. Sack, the Second Circuit characterized the district judge's ruling in this case as being based solely on the ground that the proposed cross-examination was designed to elicit evidence of a witness's “character for truthfulness or untruthfulness,” which is inadmissible under Fed. R. Evid. 608.

That was incorrect as a matter of law, the circuit court decided, because cross-examination of the witness regarding his swastika tattoos was sought “not to show the witness's ‘character for truthfulness or untruthfulness,’ Fed. R. Evid. 608; it was to impeach the witness for bias.” The court said that in a recently decided habeas corpus case, Brinson v. Walker, 2008 U.S. App. LEXIS 23303 (2d Cir. Nov. 13, 2008), it made clear that racial bias is a “prototypical form of bias” covered by the Confrontation Clause 9 (see related story in this issue).

Although the court acknowledged that groups other than neo-Nazis sometimes display swastikas for reasons that have nothing to do with hatred or bias, it decided that, in the case before it, the district judge understandably assumed that the swastika “is commonly associated with neo-Nazi groups harboring extreme forms of racial, religious and ethnic hatred and prejudice against minority groups,” including the group in which the defendant asserted membership. Relying on this assumption, the court said, “[t]he fact that a witness customarily carries or displays a swastika, as a tattoo or otherwise, … would tend to suggest that he or she holds racial, religious or ethnic prejudices,” which “in turn suggests a basis on which the jury could find the witness's testimony not credible.” Because the jury could have found that the witness's tattoos were indicative of bias, cross-examination of him on that subject was “relevant,” and thus admissible under Fed. R. Evid. 402, “irrespective of its admissibility vel non under Rule 608,” the court said.

The court upheld the defendant's conviction after concluding that the other evidence of the defendant's guilt rendered the violation of his confrontation rights harmless beyond a reasonable doubt.

Full article here. [Brooks Holland]