EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, November 12, 2012

Believe It Or Not?: 10th Circuit Finds Judicial Credibility Determination Admissible Under Rule 608(b)

Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:  

(1) the witness; or  

(2) another witness whose character the witness being cross-examined has testified about.  

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

So, is a judicial credibility determination admissible under Rule 608(b), in the sense that it can be inquired into on cross-examination? As a matter of first impression in United States v. Woodard, the Tenth Circuit answered this question in the affirmative.

In Woodard, Rommie Woodard was convicted of possessing more than 100 kilograms of marijuana with the intent to distribute. At trial, Woodard had tried to impeach a New Mexico Motor Transportation Division (MTD) inspector, who claimed that he smelled marijuana in Woodard's trailer, which is what led to the search of Woodard's trailer and his eventual arrest. Specifically,

Before Defendant's trial began, the government filed a motion in limine to prohibit Defendant from offering evidence concerning a prior determination made by a different federal district court judge that the MTD inspector was not credible. In United States v. Variste, No. CR 06–1349 BB (D.N.M.), the district court issued a suppression order containing a finding that the court did not believe the inspector's testimony. Specifically, the Variste court found:  

This Court does not believe [the inspector] detected the odor of raw marijuana emanating from the back of the trailer because he did not follow up and that information was not communicated to any other law enforcement personnel involved or given as a basis for any subsequent stop....

The district court precluded Woodard from impeaching the inspector through evidence of this judicial credibility determination, and this ruling formed part of the basis for Woodard's appeal. In response, the government claimed that a finding of perjury would be admissible but that a mere credibility determination would not

The Tenth Circuit disagreed, finding that

We do not find this distinction persuasive. As the Second Circuit adeptly noted, "A finding that a witness is not credible is not fundamentally different from a finding that the witness lied. It often just reflects a fact finder's desire to use more gentle language." United States v. White, 692 F.3d 235, 249 (2d Cir.2012).

The Tenth Circuit then noted that

Although we have not addressed the issue of whether past judicial credibility determinations are admissible under Rule 608(b), several of our sister circuits have done so and held that they are. United States v. Cedeño, 644 F.3d 79, 82–83 (2d Cir.), cert denied, 132 S.Ct. 325 (2011); United States v. Dawson, 434 F.3d 956, 957–59 (7th Cir.2006) ("[T]he decision whether to allow a witness to be cross-examined about a judicial determination finding him not to be credible is confided to the discretion of the trial judge; it is not barred by Rule 608(b), which, to repeat, is a rule about presenting extrinsic evidence, not about asking questions."); United States v. Whitmore, 359 F.3d 609, 619–22 (D.C.Cir.2004) (holding district court erred in refusing to allow the defendant to cross-examine an officer about a judge's conclusion that "I think [the officer] lied").

The court then found

the test set forth by the Second Circuit to be particularly helpful in determining the relevancy and probative value of a prior court's finding that a witness had lied. In Cedeño, the Second Circuit set forth a list of factors a district court should consider when making this determination: "(1) whether the prior judicial finding addressed the witness's veracity in that specific case or generally;...(2) whether the two sets of testimony involved similar subject matter"; (3) "whether the lie was under oath in a judicial proceeding or was made in a less formal context"; (4) "whether the lie was about a matter that was significant"; (5) "how much time had elapsed since the lie was told and whether there had been any intervening credibility determination regarding the witness"; (6) "the apparent motive for the lie and whether a similar motive existed in the current proceeding"; and (7) "whether the witness offered an explanation for the lie and, if so, whether the explanation was plausible."

Finally, the Tenth Circuit applied these factors to the case at hand and found that they supported the conclusion taht Woodard should have been able to impeach the inspector:

First, the inspector's testimony in the two cases involved nearly identical subject matter. In each, he testified that upon opening the door to the defendant's tractor-trailer while performing an inspection at the Gallup port of entry, he smelled a strong odor of raw marijuana. Second, the inspector's testimony in Variste was given under oath during a suppression hearing. Third, his prior testimony was significant; it involved the central issue of the suppression hearing—whether the deputy had the requisite reasonable suspicion to perform the search of the defendant's tractor-trailer. Fourth, the testimony in Variste was relatively recent, given approximately three years before the inspector testified in the present case. And the government has not pointed to any intervening finding that the inspector was credible. Fifth, the motive to lie in both cases was the same. In each, the strong odor of marijuana was offered to support a critical determination necessary to obtain a conviction: in Variste, reasonable suspicion justifying the search, and here, whether Defendant knowingly possessed the marijuana. Sixth, and finally, the government has not offered any explanation for the inspector's implausible testimony, other than that offered to and rejected by the Variste court. Each of these factors convince us that cross-examination on the credibility determination would have been appropriate under Rule 608(b).



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