Ninth Ciruit holds specific conduct underlying prior conviction not admissable under either FRE 608 or 609
Posted by: Gerald Smith
June 17, 2009
Topic: U.S. Courts of Appeals
In a recent opinion, United States v. Osazuwa, ___ F.3d ___, 2009 WL 1232107 (9th Cir. May 7, 2009), the Ninth Circuit addressed the "complex interplay" between Rules 608 and 609 of the Federal Rules of Evidence. In pertinent part, Rule 608(b) provides that specific instances of conduct "for the purpose of attacking or supporting a witness' character for truthfulness, other than conviction of a crime as provided in Rule 609, may not be proved by extrinsic evidence." The rule goes on to provide such instances, if probative of truthfulness or untruthfulness, may be inquired into on cross examination.
Rule 609 provides that evidence "that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness."
The defendant in Osazuwa was tried and convicted for assaulting a federal prison guard while incarcerated for failing to pay restitution ordered in his prior conviction for bank fraud. The only eyewitnesses were the defendant and the guard. On cross examination, the government questioned the defendant at some length about lies he told as part of the conduct resulting in his fraud conviction. After argument from counsel, the District Court had allowed the testimony, finding the defendant had "opened the door" by minimizing his conduct in the fraud case. The minimization consisted of his testimony that he had served only one day for the fraud, which was true. The District Court also held the evidence was admissible under Rule 608.
The Ninth Circuit reversed and remanded for a new trial. The Court agreed with the defendant that Rule 608 applies only to specific instances of conduct that were not the basis for a conviction. The Court began the analysis by agreeing with United States v. Cudlitz, 72 F.3d 992, 995 (1st Cir. 1996), that the rules governing cross examining a criminal defendant about prior wrongs are "are among the most complex and confusing in the entire law of evidence."
The Court noted that several circuits have previously adopted the defendant's argument. Concluding that the rule is ambiguous the Court considered legislative history. Also instrumental in its decision was the inconsistency inherent in barring inquiry into details of a conviction pursuant to Rule 609 but allowing such details to be admitted through the "back door" under Rule 608. The Court cited extensive case law supporting the principle that Rule 609 permits only the number of convictions, nature of the crimes, and dates of the convictions. Rule 609 does not permit inquiry into specific conduct and details of the conviction.
The Court further determined that the defendant had not opened the door by testifying truthfully that he had been sentenced to incarceration for one day for his prior conviction. The defendant did not testify about the underlying facts or create a false impression. He answered the question truthfully. The Court suggested that the government, if it was concerned the testimony might have minimized the offense, could have asked further questions about the sentence itself, such as the amount of restitution ordered.
The case will have significant impact on development of defense trial strategies. A major concern that always arises is subjecting a testifying defendant to 608/609 impeachment. At least in the Ninth Circuit, this opinion provides some relief by limiting 608 impeachment and curtailing the limits of the "opening the door" threat.
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