Factual Background
The Respondent in this matter, Abel and his friends were indicted with bank robbery in the District Court, with his cohorts pleading guilty to the charge as framed. The respondent however, denied the offence and the matter went for trial whereby one of the cohorts named Ehle agreed to testify against him. The respondent then made known to the court of his intention to discredit the testimony by Ehle by calling a witness named Mills who would testify to the effect that Ehle had admitted to him that he intended to implicate the respondent so as to obtain favorable treatment from the government. As a result, the prosecution disclosed that it intended to discredit the testimony of Mills by calling Ehle back to the witness stand where he would testify of the existence of a prison gang named Arya Brotherhood of which both Mills and the respondent were members. In addition, the prosecution would show through Ehle’s testimony that members of the organization had sworn to commit perjury in order to protect their members. During the trial, and upon cross-examination by the prosecutor, Mills denied any knowledge of the existence of the prison gang organization prompting the prosecution to call Ehle to the stand so as to testify as to the same. Ehle testified that Mills and the respondent belonged to a secret prison gang and described the tenets of the organization. Consequently, the jury convicted the respondent of the offence charged.
Procedural history
After conviction by the jury at the District Court, the respondent appealed to the Court of Appeal which reversed the finding of the District Court and held that the admission of the testimony by Ehle was prejudicial to the respondent and consequently quashed the conviction. The matter was then appealed by the prosecution at the Supreme Court and the court overturned the finding of the Court of Appeal and upheld the holding of the District Court.
Issues presented
A multiplicity of issues revolving around the admissibility of evidence came for adjudication in this matter. One of the issues was: do the Federal Rules of Evidence provide for impeachment for bias, and if not, do the same rules contemplate such impeachment? Another issue that came under scrutiny by the court as relates to the case was whether the District Court abused its discretion as provided for in the Federal Rules of Evidence by admitting the testimony of Ehle as to the description of the prison gang and its tenets. Further, another issue for consideration by the court was: did the District Court err in allowing the cross-examination of a witness for the purpose of impeaching him by asking about specific instances of past conduct, other than crimes specified in the Rules, which are probative as to his veracity? Closely intertwined to this was an issue as to whether it was an error by the District Court in accordance with Federal Rules of Evidence Rule 608(b), to admit the testimony by Ehle tending to rebut the testimony by Mills concerning the membership of the respondent in the prison gang?
Rules Addressed
While determining the case as framed, the court made mention of and applied various statutes, legal rules and case law. In particular, the court made use of the Federal Rules of Evidence Rules 401,607, 608, 610, 611 among others. Reference was also made to a number of decided cases such as Palmer v Hoffman, Alford v United States, Davis v Alaska, and various scholarly texts in support of the finding.
Analysis
Respondent Abel and his two cohorts were indicted for alleged bank robbery in which the cohorts elected to plead guilty but the respondent proceeded to trial. One of the cohorts initially charged alongside him by the name Ehle agreed to testify against him of the offence. The respondent informed the court of his intention to controvert this testimony by calling a witness by the name Mills with whom he had spent some time with in prison. During cross-examination, Mills denied any knowledge of the existence of a secret organization to which he belonged, upon which the prosecution recalled Ehle to testify. Mills testified to the effect that Ehle had intimated to him that he intended to implicate the respondent falsely so as to obtain preferential treatment from the government. The prosecution sought to discredit this testimony by Mills by calling Ehle who gave testimony to the effect that Mills and the respondent belonged to a secret organization which required its members to lie and kill on behalf of each other. Counsel for the respondent objected to the testimony by Ehle on the grounds that it was too prejudicial to the respondent but the District Court held that its probative value far outweighed its prejudicial effect on the respondent. The respondent was consequently convicted by the jury and appealed at the Court of Appeal which overturned the finding of the District Court on grounds that the testimony by Ehle was improperly admitted.
In its finding, the Court of Appeal was of the view that the rebuttal testimony by Ehle was admitted not just to indicate that the membership of the respondent and Mills in the gang would tend to make Mills to color his testimony in respondent’s favor, but to show that he must be lying since his organization has sworn to do it. The Court based its finding on the case of Scalia v United States and Brandenburg v Ohio where it was stated that a government may not convict a person merely because they belong to a group that advocates an illegal activity. In effect, the Court held that the District Court erred in holding that Mills must have been lying by mere association with the secret organization which advocates for perjury. However, the Supreme Court held that the decision to admit the testimony by Ehle by the District Court was correct since the evidence to the effect that both Mills and the respondent were members of the gang was sufficiently probative of a possible bias on the part of Mills towards the respondent to warrant its admission into evidence. This brought into fore the issue whether such admission of evidence as to impeach a witness for bias is allowed by the Federal Rules of Evidence which do not expressly provide for impeachment for bias. In this regard, the Supreme Court made reference to cases decided before the promulgation of the Federal rules, in specific the case of Alford v United States which stated that a trial court must allow cross-examination of a witness to show bias, a position consistent with the common law position. The Court also had regard to its earlier decision in Davis v Alaska where it had stated that a defendant had a right under the Confrontation Clause provided under the Sixth Amendment to the United States Constitution to cross-examine a prosecution witness in order to show bias. As such, the Court was of the view that the framers of the Federal Rules could not have intended to emasculate the principle of cross-examination for bias. In this context, the Court also deferred to Federal Rules of Evidence 401 which defines relevant evidence as evidence that has the tendency to make the existence of any fact more probable than it would be without the evidence. In this breadth, the court also looked into Rule 402 which provides for admissibility of all relevant evidence save for that excluded by the Constitution, an Act of Congress or any applicable rule. To this end, the Supreme Court held that a showing of bias on the part of a witness is relevant in the sense that it has the capacity to make the facts of which he testified more probable in the eyes of the jury than it would be without the testimony. Consequently, such testimony is admissible and indeed was correctly admitted. In a bid to further illustrate that the Rules do contemplate an impeachment of a witness for bias, the Court made reference to the Advisory Committee Notes to Rules 608 and 610 as well as Rule 607 which allows for the attacking of the credibility of a party to proceeding. In addition, the court cited Rule 611(b) which allows for cross-examination on matters affecting the credibility of a witness. In fact, the Court of Appeal has allowed the use of extrinsic evidence to show bias on a witness both before and after the promulgation of the Federal Rules as evident in a number of cases such as United States v James and Hendrix v United States. Consequently, the Court made the finding that the Federal Rules do allow or at least contemplate the impeachment of a witness for bias.
The second issue for determination related to the question as to whether the District Court abused the discretion conferred upon it by Rule 403 in permitting the full description of the gang and its tenets as it tended to have a prejudicial effect on the respondent in the eyes of the jury. Counsel for respondent submitted that the testimony by Ehle as to the tenets of the gang inflamed the jury against the respondent thereby subjecting him to an unfair trial. In this respect, the respondent argued that there was a chance that he was convicted by his mere association with the organization and therefore such testimony should not have been allowed as it abused the discretion conferred by the Rules. While disputing this contention, the Supreme Court found that such an argument as proffered by the respondent lost sight of the fact that such a description was indeed relevant in showing bias on the part of Mills. The Court analogized the scenario with a situation where a respondent is linked to association with a group engaged in noble activities such as a charity organization and stated that such association would not have made an inference of bias on the part of the jury. In this respect, since the secret organization, namely the Arya Brotherhood, was sworn to perjury and self-protection, such evidence was relevant for the fact that it not only pointed to possible bias on the part of Mills, but also the source and strength of such bias. In particular, the tenets of the secret organization indicated a powerful incentive that could have led Mills to fabricate his testimony as to favor the respondent with whom they shared membership to the organization. In addition, the Supreme Court held that the Rules confer a wide discretion on the District Court to determine the admissibility of evidence under rules 401 and 403 by weighing the probative value of the particular evidence as against the prejudicial effect on an accused. Further, and in an attempt to rebut the assertions of the respondent that the admission of testimony by Ehle unduly prejudiced him, the Court took notice of the fact that the District Court had listened to arguments as to prejudice from counsel both in chambers and in open court. In particular, the court noted that the trial court had prevented the prosecutor from using the name of the secret organization while examining the witness to avoid prejudice. The trial court had also offered to give limiting instruction as relates to the testimony, besides sustaining objections from the respondent’s defense counsel to questions posed by the prosecutor to the witness as to the kind of punishment that was usually meted out to those who defied the rules of the organization. Based on all these precautionary measures taken by the trial court, the Supreme Court agreed with the District Court that the admission of highly probative evidence of Ehle did not unduly prejudice the respondent despite noting that the same measures did not prevent all prejudice. As such, the Court found that there was no abuse of discretion as provided for under Rule 403 by the District Court in admitting the testimony by Ehle concerning the membership of the respondent and Mills in the gang, as well as its tenets.
The third issue arose out of an argument by respondent to the effect that the prosecutor cross-examined Mills about the gang not to show bias on his testimony but rather to offer his past conduct of membership as one bearing on his veracity. The respondent contended that such a move is in violation of Rule 608(b) which allows for cross-examination to impeach a witness by asking him questions about specific instances of past conduct, other than crimes listed in Rule 609, which are probative of his veracity, truthfulness or otherwise. The respondent argued that the mere fact of Mills’ membership in the gang, without more, was not sufficiently probative of his character as to his truthfulness and as such, the cross-examination was a nullity. The Rule also limits the inquiry to cross-examination and proscribes a cross-examiner from introducing extrinsic evidence of the past conduct of a witness. The respondent further relied on this provision and contended that the rebuttal testimony by Ehle concerning the gang was extrinsic evidence which sought to challenge Mill’s truthfulness or veracity and therefore was an error of law. The first limb of the issue was dispensed with by the Supreme Court by stating that the testimony as to the membership of Mills was enough to show potential bias on his part towards the respondent. The court further held that the testimony describing the tenets of the organization directly impeached the veracity of Mills. The Court was of the view that there exists no rule of evidence which provides that testimony admissible for one purpose is inadmissible for another. In particular, the Court was convinced that it would be strange if relevant and competent evidence tending to show bias on the part of a witness was held inadmissible for the reason that it tends to show that a witness was a liar. With respect to the issue whether the evidence of Mills’ membership in the gang was a specific instance of Mills’ specific conduct which could not be proved against him by way of extrinsic evidence save as provided for under Rule 608(b), the Court declined to answer. Instead, the Supreme Court held that it was sufficient that such testimony was properly admitted and it showed bias.
Conclusion
On these grounds, the Court reversed the ruling of the Court of Appeal and affirmed the decision of the District Court.
Bibliography
Rice, Paul R, and Neals-Erik W Delker. "Federal Rules of Evidence Advisory Committee: A Short History of Too Little Consequence." Federal Rules Decisions, 2009: 678.
Rothstein, Paul, Myrna S Raeder, and David Crump. Evidence In A Nutshell. New York: Thomson/West, 2003.
Schwartz, David. "Foundation Theory of Evidence." Georgetown Law Journal, 2011: 121-150.
