Monday, March 30, 2020
Sixth Circuit Grants New Trial Based on Prosecution's Use of an Unauthenticated Video of a Masked Man Rapping & Wielding a Gun
[Terrance] Craig was charged with being a felon in possession of a firearm and took the case to trial. Craig admitted that he possessed a firearm while being a felon but testified that he possessed the gun only long enough to defend himself and his friends during [a] firefight. On cross-examination, the Government played for the jury a video depicting a masked individual it alleged to be Craig rapping and wielding a firearm that was similar to the gun for which he was charged. Craig denied that he was the masked individual in the video, and the Government did not attempt to introduce the video into evidence.
Later, during closing arguments, the prosecutor stated:
And how do you know that he had that gun before, that he had that gun before he got in the car on November 26th? Because you saw it. You saw the Facebook video and you saw him with the gun, waving the gun around, and it looks just like this gun. And he said on cross-examination that that wasn't him in the Facebook video. Do you remember that?
So, was this proper?
Clearly not. To introduce evidence, the proponent has to authenticate it under Federal Rule of Evidence 901. Simply put, that wasn't done here.
The prosecution claimed, however, that it could impeach Craig with the video under Federal Rule of Evidence 608(b), which states 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.
But, to impeach a witness under Rule 608(b), a party needs a good faith basis, and here, the prosecution provided no good faith reason to believe that it was Craig in the video. Moreover, Rule 608(b) makes clear that questions can be asked but extrinsic evidence is inadmissible. Therefore, because the video was extrinsic evidence, the prosecution could not use it.