FED. R. EVID. RULE 614, INTERROGATION BY THE COURT:

U.S. v. Robinson, 635 F.2d 981 (2d Cir. 1980) (noting trial court’s conduct of trial left much to be desired).

WHY WOULD THE WITNESS BE TELLING THIS STORY IF IT WASN’T THE TRUTH- SOME WITNESSES ARE PAID WITH MONEY, SOME WITH A COMMODITY MORE VALUABLE, THEIR LIFE OR THEIR LIBERTY

BIAS, MOTIVE OR PREJUDICE

 A witness may be impeached by showing that his testimony may be motivated by reasons other than to tell the truth;

A. Prior arrests or pending indictment against prosecution witness.

 U.S. v. Musgrave, 483 F.2d 327 (5th Cir. 1973);

U.S. v. Crouchier, 532 F.2d 1042 (5th Cir. 1976);

U.S. v. Garrett, 542 F.2d 23 (6th Cir. 1976);

U.S. v. Dehem, 498 F.2d 1327 (7th Cir. 1974) (no indictment);

U.S. v. Garcia, 531 F.2d 1303 (5th Cir. 1976);

Hart v. U.S., 585 F.2d 1280 (5th Cir. 1978) (“although the mere existence of an arrest is not admissible to impeach the credibility of a witness, this court has recognized that arrests may be admissible to show that an informer might falsely testify favorably to the Government in order to put his own cases in the best light possible”).

B. Pending probation against prosecution witness.

Davis v. Alaska, 415 U.S. 308 (1974).

Sixth Amendment right of confrontation and cross-examination violated by prohibiting cross-examination of prospective witness regarding pending juvenile probation.

C. Plea agreements made with prosecution witnesses:

 Any plea agreement or offer made by the prosecution to a witness is admissible, as the jury is entitled to consider same with respect to that witness’ motive for testifying for the prosecution.

 Prosecutor is required to take affirmative action to correct misleading testimony regarding any deal or offer of some in exchange for a witness’ testimony.

Giglio v. U.S., 405 U.S. 150 (1972);

Napue v. Illinois, 360 U.S. 264 (1959);

Blankenship v. Estelle, 545 F.2d 510, 513 (5th Cir. 1977) (questions asked by prosecution regarding “pending indictments” “…undoubtedly created the clear impression that the two witnesses themselves faced trial possibility that they were cooperating with the prosecution in exchange for lenience”).

No “agreement” or “deal” for the witness’ testimony need be shown.

U.S. v. Crumley, 565 F.2d 945 (5th Cir. 1978);

Greene v. Wainwright, 637 F.2d 272, 276 (5th Cir. 1981);

U.S. v. Mayer, 556 F.2d 245, 249 (5th Cir. 1977);

Burr v. Sullivan, 618 F.2d 583, 587 (9th Cir. 1980).

“Whether or not a deal existed is not crucial. What is important is whether the witness may be shading his testimony in an effort to please the prosecution. A desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness, but such a subtle desire to assist the state nevertheless may cloud perception.” Greene v. Wainwright, 637 F.2d at 276.

The Texas Court of Criminal Appeals likewise held that:

Alford and Harris control our resolution of the instant case. See also Coody v. State, 812 S.W.2d 631 (Tex. App. – Houston [14th Dist.] 1991). Appellant’s cross-examination was clearly an attempt to demonstrate that Russell held a possible motive, bias or interest in testifying for the State. Appellant’s inquiry into Russell’s incarceration, his pending charge and possible punishment as a habitual criminal, was appropriate to demonstrate Russell’s potential motive, bias or interest to testify for the State. A defendant is permitted to elicit any fact from a witness intended to demonstrate that witness’ vulnerable relationship with the State. Alford, 282 U.S. at 692, 51 S.Ct. at 219; Harris, 642 S.W.2d at 480.

The State contends appellant’s cross-examination was impermissible because no agreement existed between the State and Russell which might affect Russell’s motive to testify for the State. However, the existence of such an agreement is not determinative. Carmona, 698 S.W.2d at 103. What is determinative is whether appellant was allowed to demonstrate any possible bias or interest that Russell may hold to testify on the State’s behalf. In other words, it is possible, even absent an agreement, that Russell believed his testimony in this case would be of later benefit. As we held in Spain

  1. State,…an effective cross-examination encompasses more than just the opportunity to elicit testimony to establish the existence of certain facts. The cross-examiner should be allowed to expose the limits of the witness’ knowledge of relevant facts, place the witness in his proper setting, and test the credibility of the relevant facts. The failure to affirmatively establish the fact sought does not prevent the cross-examination from having probative value in regard to the witness’ credibility. 585 S.W.2d 705, 710 (Tex. Cr. App. 1979) (citing Alford, 282 U.S. at 692, 51 S.Ct. at 219); Saunders v. State, 572 S.W.2d 944, 948-49 (Tex. Cr. App. 1978).

Finally, the Court of Appeals’ holding that appellant was unable to impeach Russell under Rule 608(b) is erroneous for at least two reasons. First, appellant’s cross-examination concerning Russell’s incarceration was not an inquiry into a specific instance of conduct.

Instead, appellant’s cross-examination focused on Russell’s possible motive, bias or interest in testifying for State…

In the instant case, the Court of Appeals improperly relied upon Rule 608(b) because appellant did not try to cross-examine Russell about a specific instance of conduct. In other words, appellant did not seek to cross-examine Russell about the underlying facts which gave rise to the aggravated robbery charge. Rather, appellant attempted to inform the jury that Russell had a vulnerable relationship with the State at the time of his testimony. Alford, 282 U.S. at 692, 51 S.Ct. at 219; and, Harris, 642 S.W.2d at 480. Consequently, the Court of Appeals erred in relying on Rule 608(b) to uphold the trial judge’s limitation on appellant’s cross-examination of Russell…” Carroll v. State of Texas, No. 1368-94, 1996 WL 22736 (Tex.Cr.App, January 24, 1996).

This would include “deals” to benefit third parties. U.S. v. Williams, 592 F.2d 1277 (5th Cir. 1979). Or “deals” for special treatment. Chavis v. North Carolina, 637 F.2d 213 (4th Cir. 1980).

D. Witness paid for their testimony.

Presentation of testimony of a paid informant raised a question of credibility for the jury to determine.

U.S. v. Santisteban, 833 F.2d 513 (5th Cir. 1987);

U.S. v. Cervantes, 826 F.2d 310 (5th Cir. 1987).

However, the same is not a per se violation of due process.

U.S. v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir. 1987);

U.S. v. Santisteban, 833 F.2d 513 (5th Cir. 1987);

U.S. v. Terrill, 835 F.2d 716 (8th Cir. 1987).

See also           U.S. v. Rizk, 833 F.2d 523 (5th Cir. 1987) (even where payments to witness not disclosed in pretrial discovery, testimony is admissible).

However, only when informant acts on general instructions and an individual is not targeted without probable cause, for investigation by the same are due process strictures met.

See                  U.S. v. Terrill, 835 F.2d 716 (8th Cir. 1987).

E. Prior false testimony by prosecution witness against another defendant in a parallel prosecution.

Johnson v. Brewer, 521 F.2d 556 (8th Cir. 1975);

U.S. v. Hitchman, 609 F.2d 1098 (5th Cir. 1979).

F. Extraneous offenses (uncharged misconduct):

However, extraneous offenses (uncharged misconduct) may be admitted against a defendant on trial in order to show system, scheme, design, motive, intent, absence of mistake, identity, to rebut a defense theory, or as part of res gestae, where same is put in issue.

FED. R. EVID. Rule 4004(b) provides:

Other crimes, wrongs, or acts are not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of:

MOTIVE, OPPORTUNITY, INTENT, PREPARATION, PLAN, KNOWLEDGE, IDENTITY, OR ABSENCE OF MISTAKE OR ACCIDENT.

Even if extraneous offense fits within exception it may be excluded where trial court determines unfair prejudice from admission outweighs probative value. U.S.

  1. Kasowis, 503 F.2d Cir. 1987); U.S. v. Santistaban, 833 F.2d 513 (5th Cir. 1987).
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