Cross examination as to credibility

Here is an interesting case from the Tenth, about cross-examination of a witness about a prior judicial “finding” that the witness was not credible — United States v. Woodard.

The court states this basic principle from its own jurisprudence:

The Sixth Amendment guarantees the right of a defendant to “be confronted with the witnesses against him.”  U.S. Const. amend. VI.  One of the primary interests secured by the Sixth Amendment’s confrontation clause is the right of cross-examination.  Davis v. Alaska, 415 U.S. 308, 315 (1974).  This is the“principal means by which the believability of a witness and the truth of his testimony are tested.”  Id. at 316.  A violation of this constitutional right occurs when “the defendant is prohibited from engaging in otherwise appropriate cross-examination that, as a result, precludes him from eliciting information from which jurors could draw vital inferences in his favor.”  United States v. Montelongo, 420 F.3d 1169, 1175 (10th Cir. 2005) (internal quotation marks omitted).  Stated differently, “‘a defendant’s right to confrontation may be violated if the trial court precludes an entire relevant area of cross-examination.’”  Id. (quoting Parker v. Scott, 349 F.3d 1302, 1316 (10th Cir. 2005)).

Here’s what the defense wanted to XE on and what the USA had successfully excluded by a motion in-limine, as objectionable under FRE 403.

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 court found this to be an issue of first impression within the Tenth, so:

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) . . . United States v. Whitmore, 359 F.3d 609, 619-22 (D.C. Cir. 2004).

The court concluded that the proposed cross-examination was “relevant and highly probative.”  The court then analyzed a number of factors to find that there was constitutional error in excluding the proposed evidence.  After an HBRD analysis the case was returned for a new trial.

Any CID, NCIS, OSI, CGIS agents out there who have testified and a military judge (perhaps extraordinarily so) has found them not credible in a prior case?  Discovery?

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