Wednesday, February 6, 2013
Truth & Consequences: Court of Appeals of Minnesota Finds No Rule 608(b) Error With Sergeant's Misconduct
Specific instances of the conduct of the witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
I think that the Court of Appeals of Minnesota in State v. Sherman, 2013 WL 399242 (Minn.App. 2013), erred in precluding the defendant from impeaching a sergeant with evidence of past misconduct under Rule 608(b). Do you agree?
In Sherman, Michael Sherman was convicted of second-degree unintentional felony murder. A big issue at trial was the number of blows that Sherman inflicted on the victim's head, with a medical examiner placing that number at three or more. At trial, the prosecution called the sergeant who was the principal investigator in Sherman's case, with the sergeant testifying about the medical examiner's conclusions and giving an overview of his investigation. After he was convicted, Sherman appealed, claiming, inter alia,
that the district court erred in refusing to allow him to impeach one of the state's witnesses, a sergeant who was the principal investigator, with evidence of two disciplinary proceedings against the sergeant in 2000 and 2002. In the first incident, the sergeant violated department policy when he used funds obtained in a narcotics-related arrest for a controlled buy in a sting operation and then falsely reported that the replaced funds were the original funds obtained as a result of the arrest. In the second incident, the sergeant was disciplined for pressuring a known drug dealer to submit to a search during a traffic stop without reading the form "consent to search" advisory and then failing to handle money found in the vehicle in accordance with department procedures.
As noted by the Court of Appeals of Minnesota,
The district court denied appellant's request to cross-examine the sergeant about these particular instances of misconduct, reasoning that there had "not been a showing that there [was] any issue regarding the witness' character for truthfulness as it relates to this case." While there were inconsistencies in the sergeant's testimony about the number of blows to the head received by L.K.S. as relayed to him by the medical examiner, there was no showing that this testimony evinced any possibility of untrustworthiness, or that the purpose of the sergeant's testimony was to establish the number of blows to the head that L.K.S. received. Rather, the purpose of the sergeant's testimony was to set up an overview of his investigation. The sergeant also testified that there was no discrepancy between a timeline provided by the apartment manager and a surveillance video of the apartment complex. Later in his testimony, he clarified that he only reviewed the surveillance video, and that his earlier testimony was based on the assumption that the surveillance video was "a timeline depicted by video." In addition, the district court, while conceding that the 2000 incident was indicative of untruthfulness, noted that the incident was over ten years old and that there must be some limit to the use of such information. Relative to the 2002 incident, the district court ruled that it was not probative of truthfulness or untruthfulness, but only showed that the sergeant had failed to follow departmental procedures.
The Court of Appeals of Minnesota found that this determination was not an abuse of discretion because the district court could have properly found that the subject evidence failed to satisfy Minnesota Rule of Evidence 403, which provides that
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
According to the court, "[a]ny limited probative value in admitting this evidence was outweighed by the substantial risk that the jury's consideration of such evidence would have resulted in confusion of the issues or misled the jury 'without any significant corresponding benefit to the truth-seeking process.'"
As noted, I disagree. Basically, the court can't have it both ways. On the one hand, you could argue that the subject evidence was more probative than the court contended because this was evidence of the principal investigator in Sherman's case had previously engaged in lies and misconduct in the line of duty. That seems pretty important to me. But, to the extent that the court is right that the misconduct of the sergeant wasn't that important because he didn't do much at trial, why would evidence of his past misconduct be overly confusing or prejudicial?