Confrontational

United States v. Figueroa, No. 06-1595-cr (2d Cir. November 18, 2008) (Kearse, Sack, Hall, CJJ)

In an interesting companion to Brinson v. Walker [blogged below under the title "Confrontation Claws"], the court treated a highly similar issue, this time under both the Confrontation Clause and the federal rules of evidence.

At Edwin Figueroa’s gun possession trial, he wanted to cross-examine a government witness about the fact that the witness had swastikas tattooed on his body. Since Figueroa was a member of a minority group, he argued that the tattoos would show that the witness was biased. Citing Rule 608, the district court precluded the questioning as inadmissible evidence of “bad character.”

On appeal, the circuit disagreed, holding that precluding the cross-examination violated the Confrontation Clause. “Inasmuch as the tattoos suggested that [the witness] harbored animus against racial or ethnic minority groups and their members, they were relevant to and probative of [his] credibility, bias, and motive to lie when testifying against Figueroa.” On the facts here, however, the error was harmless, since the witness was one of several who tied Figueroa to the gun.

Of particular interest in this opinion is the court’s discussion of the relevant rules of evidence. The court held that the district court erred “as a matter of law” in precluding the evidence under Rule 608. Impeachment for bias is admissible under Rule 402 even if the impeachment materials are not independently admissible under Rule 608 as “concerning” the witness’ “character for truthfulness or untruthfulness.” The opinion also noted that, since the district court did not exclude the testimony under Rule 403, there was no basis for reviewing its ruling on Rule 403 grounds. However, the court suggested that “[b]ased on the proverbial cold record before us, the reasons the court excluded the relevant tattoo evidence seem relatively modest compared to the Rule 403 factors favoring admissibility,” although it ultimately “express[ed] no opinion” as to whether excluding the evidence under Rule 403 would have been within the trial court’s discretion.

Confrontation Claws

Brinson v. Walker, No. 06-0618-cr (2d Cir. November 13, 2008) (Kearse, Leval, Sack, CJJ)

In this state prisoner’s habeas corpus case, the circuit affirmed the grant of the writ because the state court’s refusal to permit the defense to cross-examine a supposed robbery victim about his racial bias violated the confrontation clause.

Brinson, the petitioner, testified at trial that this was not a robbery, but rather a small - ten-dollar - marijuana sale that had gone bad. He had hoped to raise a defense that the witness’ robbery accusation was false, and was motivated by a racial hatred of African-Americans. Defense counsel had a compelling offer of proof: first, he indicated that the witness had refused to serve African-Americans when he worked as a waiter, and that he was prepared to call the victim’s supervisor if the witness denied it. In addition, an acquaintance of the witness was prepared to testify that the victim had “used a demeaning racial epithet in her presence.” Nevertheless, the state trial court refused to let the defense pursue this, holding that it was irrelevant because those particular events occurred after the robbery. The Appellate Division affirmed on a different ground - that the evidence would demonstrate only “general ill will of the complainant and not his specific hostility toward defendant.”

A federal magistrate granted Brinson’s habeas petition, and the circuit affirmed. “[A]t least where the racial bias sought to be exposed is of sufficient intensity that it is reasonably likely to result in the falsification of the witness’s testimony against the accused, a preclusion of cross-examination on the ground that racial bias is general and not specifically directed against the defendant is an unreasonable application of Supreme Court decisional law.” This does not necessarily mean that a trial judge must permit cross-examination on “even the mildest forms of a witness’s bias relating to a class to which the defendant belongs.” But here, the offer of proof established an “extreme form” of bias in the witness, one of “such intensity [that it] might distort his testimony against an object of his bias on account of it.” It was not “within a trial court’s reasonable discretion to preclude this cross-examination.”

Moreover, the confrontation violation was not harmless. The witness’ testimony was critical to the prosecution’s case, because he was the sole witness to the alleged robbery, and there was no other evidence to corroborate his accusation. Moreover, Brinson had no money on him when he was found by the police a short time after the alleged robbery, which “raise[d] some doubt about the accusation.” In addition, the cross-examination that the trial court did permit did not cure the error because all that the court permitted was a single question about whether the witness had used a racial epithet, and the victim denied it. Finally, overall, the prosecution’s case was “far from overwhelming” and the cross-examination that was prohibited was “of a nature that was likely to affect the result.”