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Criminal Justice Magazine
Summer 2001
Volume 16, Issue 2
Trial Tactics
Stephen A. Saltzburg
Opening the Door to Bolstering
Courtrooms sometimes appear to trial
lawyers a little like hotels. If one is not careful during a trial, an adversary
will claim that something "opened the door" to evidence that otherwise
would not be admissible. Many times an advocate asks a question thinking that
the answer will make a particular point, only to find opposing counsel claiming
that the question, the answer, or both, have brought an issue into the case
that the advocate never considered when formulating the question. It can be
a shock to have one goal in mind, only to find that the trial judge agrees with
opposing counsel that a door has been opened to a line of inquiry that might
otherwise have been barred.
An open door can take on special significance when advocates seek to "bolster"
witness testimony. Every effective advocate welcomes the opportunity to display
the bona fides of a witness to a judge or jury. Although the rules of evidence
generally limit bolstering, advocates try to stretch the rules to provide as
much support for their witnesses as the rules permit and the trial judge tolerates.
An advocate looks for every opportunity to make a witness look good to a trier
of fact. When an adversary mounts an attack on the witness, even a mild one,
the advocate will respond with favorable evidence. Whether or not the evidence
is generally admissible, the advocate will claim that the attack on the witness
opens the door to a response.
An illustrative case
In U.S. v. Smith, 232 F.3d 236 (D.C. Cir. 2000), Antonione Smith was charged
with and convicted of unlawful possession of a firearm and ammunition by a convicted
felon. The charges stemmed from a Bureau of Alcohol, Tobacco, and Firearms (ATF)
investigation of narcotics dealing and violent crime, including drug-related
homicides, in the District of Columbia. Focusing on a particular housing complex,
the ATF task force used observation posts, made undercover narcotics purchases,
and arrested and recruited confidential informants who assisted the task force
in locating and arresting others.
During the investigation, officers observed Kevin Perry selling crack cocaine
from his wheelchair, and arrested him. Like others who decided to cooperate
with the government, Perry entered into a cooperation agreement that required
him to plead guilty to one count of conspiracy to distribute and possess with
intent to distribute over 50 grams of crack cocaine. In return for his full
cooperation, agents promised that the government would dismiss two charges that
were pending against Perry in the District of Columbia Superior Court. The government
also agreed to file a motion pursuant to federal sentencing guidelines (§
5K1.1) urging the federal district court to waive the mandatory 10-year minimum
sentence on the federal distribution charge to which Perry was pleading. This
substantial assistance motion is the vehicle the government uses when it seeks
to assist a defendant in obtaining a sentence that is below a statutory minimum
or below a guideline. Although the agreement did not promise Perry any other
benefits for his cooperation, task force agents also provided him with cash.
Perry used the money to pay for rent, bills, childcare, transportation, and
moving expenses.
Perry informed task force agents that he had known Antonione Smith for 10 years
and that Smith had repeatedly asked him if he wanted to buy an AK-47 assault
rifle. Initially, Smith was not a target of the investigation, but when Perry
reported their conversations, agents instructed Perry to engage in the transaction
and created a sting operation aimed at catching Smith as he attempted to sell
the rifle. Perry testified that he and Smith agreed on a price of $900 for the
rifle. Perry told Smith he was buying the rifle for a friend and Smith agreed
to give Perry a small finder's fee. The task force arranged the transaction;
the sting operation was supervised by an ATF agent. The plan called for the
deal to be completed in Perry's apartment.
The sting took on a high tech tone when an undercover agent exchanged Perry's
wheelchair for one equipped with a video camera. The agent also wired Perry
with a radio transmitter, gave him a cell phone, and provided money to purchase
the rifle. The idea was to have a video record, while the supervising agent
would monitor the transaction via radio from a block away. High tech cannot
eliminate human factors, though, and as the agent left Perry's apartment, he
passed Smith coming in. Smith did not seem concerned, however, and proceeded
to the apartment.
Smith entered the apartment, but did not have the rifle. Perry later testified
that he and Smith discussed how to move the rifle from the street to the apartment
without attracting attention. Smith left Perry's apartment twice. The first
time he returned without the gun, and once again spoke with Perry about how
to avoid attracting attention. The second time he returned with Daniel Hamilton,
who carried a large, torn, cardboard box. In the box were a loaded Norinco SKS
rifle, loose ammunition, and a black skull cap.
Perry and Smith moved the box under the couch and Perry gave Smith the money.
Smith returned a few dollars as the finder's fee. Eventually, Smith and Hamilton
left the apartment together. The undercover officer returned to the apartment
to inspect the box and its contents. He retrieved the high tech wheelchair and
returned Perry's chair. The sting was complete.
The government brought charges against both Smith and Hamilton. Not surprisingly,
the three fact witnesses for the government were Perry, the supervising agent,
and the undercover agent who had wired Perry and retrieved the gun. A fourth
witness was an ATF firearms specialist whose task it was to explain the type
of rifle and its capabilities.
It certainly seems from the facts presented that the government's case was overwhelming.
It had video evidence to support the testimony. But high tech is not always
all that one would wish, and in this case the videotape was inaudible. In addition,
the audio transmission was not recorded. So the jury had to rely exclusively
on the testimony as to what was said. Apparently it did not find this difficult,
since it heard only one day of evidence and argument before returning a guilty
verdict.
The claim of improper bolstering
Smith complained on appeal that the trial judge had improperly permitted the
prosecution to bolster Perry's credibility. The prosecutor had the supervising
agent on the stand on redirect examination and elicited the following testimony:
Q: [The defense] asked you some questions about Mr. Perry's cooperation and the information he's given you. Do you remember those questions?
A: Yes.
Q: Is it true that Perry had given you information that has led to the capture
of other criminals?
Defense: Objection, Your Honor.
The court: Sustained.
Q: As a result of Mr. Perry's cooperation, have you been able to arrest other criminals?
Defense: Objection.
The court: Sustained. It's leading.
Q: What happened-well, let me rephrase
this. With the information that Mr. Perry gave you, what did you do?
Defense: Objection to relevance.
The court: I'll overrule that objection.
The witness: Repeat your question.
Prosecutor: Sure. Mr. Perry gave
you certain information about individuals in the Park Morton complex; is that
right?
A: That's true.
Q: And what did you do with that information?
A: The information that Mr. Perry gave me personally, I did a lot of different things with it. Some of the information was used to obtain search warrants. Some of the information was used to begin investigations on other people in that area who were committing crimes such as drug dealing and firearms possession. And some of the information was used to inform the attorneys of how he could help us in these investigations by way of testimony in the grand jury and at trials.
Q: In any of those search warrants that were based on information given you by Perry, did you uncover contraband?
A: Yes.
Q: And any of those investigations of other individuals that you started as
a result of Mr. Perry's information, did any of those investigations lead to
arrest?
A: Yes.
Q: And were the arrests of those individuals corroborated by any tangible evidence?
Defense: Objection, Your Honor.
The court: Sustained.
Q: Agent Haera, based on what you know about the information Mr. Perry gave you, and the search warrants you've gotten and the arrests, do you believe that the information Mr. Perry gave you is truthful?
Defense: Objection, Your Honor.
The court: Sustained.
Prosecutor: That's all I have, Your
Honor.
(232 F.3d at 240-41 (emphasis in original).)
Perry's lawyer only objected to some questions without stating a specific objection. The only specific objection to this line of inquiry was on relevance grounds, and that proved to be unfortunate for Perry. The court of appeal readily concluded that a relevance objection was a loser, since the fact "[t]hat Perry has informed and testified truthfully in the past under his plea agreement certainly bears on his response to similar pressures and temptations in the present." (232 F.3d at 241.)
The importance of Rule 608(b)
The court of appeals recognized that the problem for Perry was that the correct
objection should not have been relevance, but should have been Rule 608(b),
which reads in relevant part as follows:
(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, 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.
Under Rule 608(b), attacks or rehabilitation of witnesses with respect to credibility are limited to reputation and opinion evidence. Specific instances of the conduct of a witness for the purpose of attacking or supporting the witness's credibility generally are barred. So, the court of appeals strongly suggested that Rule 608 should have been the rule cited by defense counsel, observed that defense did not cite the rule, and concluded that the relevance objection was bound to lose because Rule 608's limitation on extrinsic evidence would not be necessary if specific act evidence were irrelevant. As the court of appeals aptly noted, "Federal Rule of Evidence 404(b), which prohibits the admission of evidence regarding past acts to prove the character of a person to show action in conformity therewith, would be largely superfluous if the rules on 'relevance' were construed to proscribe 'propensity' testimony. Similarly, were we to agree with Smith, Rule 608(b)'s prohibition on the use of extrinsic evidence of specific instances of a witness' truthful or untruthful conduct 'for the purposes of attacking or supporting the witness' credibility' would itself be redundant." (232 F.3d at 241.)
If the proper objection was made
Does this mean that, if Perry's lawyer had objected on Rule 608 grounds the
objection would have been sustained? Even though Perry lost the right to review
the district court's ruling admitting the testimony under the usual review standard,
the court of appeals did undertake a "plain error" analysis of the
testimony. The court observed that it had not ever dealt with the question of
whether it is permissible to bolster a witness with specific acts when the witness
is attacked for bias, and added that "[a]lthough this fact, alone, is not
dispositive of the plain error issue, it is important when we consider that
Rule 608(b) itself admits of no simple answer to the question at hand and, in
addition, our sister circuits have been unable to agree on the point at which
impermissible 'bolstering' ends and permissible use of past cooperation to rebut
bias begins." (232 F.3d at 242.) The court turned to a discussion of a
matter that relates very much to the open door concept:
Government informants present a uniquely
difficult case for courts determining whether the prosecution has offered the
so-called "bolstering" evidence for a permissible or an impermissible
purpose. Routinely, defense counsel cross-examines government witnesses about
an informant's bias-whether it be a plea agreement, a financial arrangement,
or both. On re-direct, the prosecution may want to introduce specific instances
of fruitful cooperation under the plea agreement to show that the informant
has already cooperated substantially with the police, thereby reducing the marginal
temptation to lie in the present circumstance. The line between this permissible
use and impermissible "bolstering" is indeed a hazy one.
(232 F.3d at 242.)
The question seems to be this: If the defendant attacks the witness, may the government respond to the attack without violating Rule 608(b)?
Other cases
The court described how other courts had dealt with the problem. In United States
v. Fusco, 748 F.2d 996 (5th Cir. 1984), the defense cross-examined a government
informant about $45,000 he had received from the government. The Fifth Circuit
held that the government could elicit evidence about other cooperation of the
informant to demonstrate that his reliance on being able to cooperate in Fusco's
case was not as important as the defense implied. "Because the government
was trying to convince the jury that [the informant] was not biased, it was
not 'bolstering' [the informant] in a prohibited way, and [the informant's]
prior cooperation was not 'extrinsic,' as those terms are used in Federal Rule
of Evidence 608. Bias, as opposed to general veracity, is not a collateral issue."
(748 F.2d at 998.)
In United States v. Lindemann, 85 F.3d 1232 (7th Cir. 1996), the Seventh Circuit
approved admission of evidence of an informant's other cooperation after the
defense attacked the informant with a claim that he "would not have gotten
a plea deal if he hadn't come up with the name of a 'big fish' like Lindemann."
(85 F.3d at 1242.) The Seventh Circuit reasoned that "[t]he evidence specifically
rebutted the allegation that [the informant] was biased out of self-interest
in Lindemann's case: Burns' successful participation in numerous other cases
meant that at the time he was negotiating over his plea deal, he had lots of
information to use as bargaining chips. That fact was relevant under the standards
of [Federal Rule of Evidence] 402 because it made less probable the assertion
that Burns was lying in Lindemann's case out of self-interest." (85 F.3d
at 1243.)
The attack on Perry
In Smith, defense counsel cross-examined the supervising agent (Haera) about
Perry's cooperation agreement and the money Perry received from the government.
The court observed that, because the Rule 608(b) was not made properly, it was
impossible to know why the prosecutor did the redirect examination quoted above.
The court reasoned as follows:
Because defense counsel in the instant
case failed to raise the 608(b) objection below, the prosecution never had an
opportunity to explain why it offered the alleged "bolstering" evidence.
Defense counsel had used its cross-examination of Agent Haera to expose the
terms of Perry's plea agreement . . . to suggest that Perry need only "accuse"
suspects to benefit under that agreement . . . and to show the tremendous financial
incentives on Perry to provide even false information. . . . Perhaps, as in
Lindemann, the prosecution offered the testimony to demonstrate the diminished
marginal value to Perry of his participation in the instant case; perhaps as
in Fusco, it was offered to undermine any insinuation that Perry had received
funds for his participation in this case alone; or finally, perhaps the prosecution
wanted to counter defense counsel's specific insinuation that Perry would benefit
merely by accusing people. We simply do not know. Given these possibilities,
the ambiguity in the case law, and the context of the present testimony, we
cannot say that admission of the evidence constituted plain error.
(232 F.3d at 243) (emphasis in original).)
Dilemma for defense counsel
In cases like Smith, Fusco, and Lindemann, defense counsel find themselves on
the horns of a dilemma. If they do not attack the informer-witness, the witness's
credibility may sink the defendant. If they do attack the informer-witness,
the door may swing open to prosecutorial bolstering that otherwise would be
impermissible.
The reason courts permit prosecutors to bolster the credibility of an informer-witness
who has been attacked is that relevant evidence ought to be admitted after a
suggestion of bias is raised if the evidence would tend to demonstrate that
defense counsel exaggerated the extent of the bias. If courts did not permit
prosecutors to put claims bias in perspective, defense counsel might create
an exaggerated impression of bias. Permitting the prosecutor to bolster after
an attack is, in the eyes of trial and appellate judges, simply a way of keeping
things even. The defendant has a constitutional right of confrontation that
includes the opportunity to impeach for bias, and the government should have
an opportunity to ensure that the attack is placed in proper perspective.
The natural question that arises is whether there is any way out of the dilemma
for defense counsel. It will not suffice simply to suggest that defense counsel
should ignore bias evidence when they cross-examine important government witnesses.
After all, bias evidence is one of the most powerful forms of impeachment.
A solution
One possible way out of the dilemma for defense counsel is to cross-examine
the informer-witness in a manner that suggests bias and that carefully circumscribes
what the defense counsel is suggesting regarding bias. Consider the following
examination of a Fusco-type informer witness:
Q. Now, you have been an informer for the government for several months?
A. Yes.
Q. You have provided assistance to the government not just in this case but also in other cases?
A. Yes.
Q. The government has paid you for your services as an informer?
A. Yes.
Q. In fact, they have paid you thousands of dollars?
A. Yes.
Q. To be accurate, they have paid you $45,000?
A. Yes.
Q. And it's true, is it not, that you understood that the money you received depended on your remaining cooperative with the government in this case and the others as well?
A. Yes.
This examination clearly establishes that the informer-witness is being paid for testimony, not in just one case, but in several cases. It makes the point that the witness understood that the money was given for his or her continuing and consistent cooperation. By eliciting the testimony on cross-examination, defense counsel is not only able to question bias, but also make it much more difficult for the prosecutor to bolster. This line of questioning lets defense counsel use evidence of the existence of the other suspects or investigations to highlight the claim of bias rather than to wait for the prosecutor to use the same evidence in an attempt to bolster.
What about a Lindemann-type informer-witness? A similar approach to cross-examination would make bolstering more difficult. Consider the following cross-examination of a hypothetical informer- witness:
Q. Now, you have been an informer for the government for several months?
A. Yes.
Q. You have provided assistance to the government not just in this case, but also in other cases?
A. Yes.
Q. Before you became an informer, the government arrested you and threatened to prosecute you, right?
A. Yes.
Q. You have provided your services to help you get as good a plea deal with the government as possible?
A. Yes.
Q. It's true, isn't it, that if you disappoint the government with respect to your testimony in any case it brings, you know that might damage your plea opportunities?
A. Yes.
Q. And it's true, is it not, that you understand that if you let the government down in this or any other case it is not going to help your plea chances?
A. Yes.
My point in offering these examples
is not to provide an unfair advantage to defense. Rather, it is to suggest that
the order in which evidence is presented and the way it is presented matters
a great deal in trial. If defense counsel put forward a strong claim of bias
in a casual way, prosecutors should be able to demonstrate that the claim may
be exaggerated even if in doing so they appear to be bolstering an informer-witness.
If, however, defense counsel put forward a careful, limited attack on bias that
recognizes during the cross-examination that the informer-witness may be cooperating
in more than the case at bar, the prosecution is not in any way unfairly treated.
Because witnesses generally cannot be rehabilitated or bolstered until they
are attacked, defense counsel have the choice of how to cross-examine government
witnesses. If they are not careful, the door will swing open to bolstering evidence.
If they are careful, the opportunities for bolstering may be limited as a practical
matter.
A last look at Smith
Before we end, it is useful to return to the facts of Smith. One of the most
interesting aspects of the case is that, despite the fact that the defense counsel
did not object under Rule 608(b), the trial judge actually ruled correctly in
preventing the prosecutor from eliciting evidence on redirect examination of
the agent that Perry had given truthful information.
Recall that the prosecutor responded with a redirect examination of the supervising
agent only after "[d]efense counsel had used its cross-examination of Agent
Haera to expose the terms of Perry's plea agreement . . . to suggest that Perry
need only 'accuse' suspects to benefit under that agreement . . . and to show
the tremendous financial incentives on Perry to provide even false information.
. . ." Although the court of appeals left open the question whether the
redirect examination was permissible under Rule 608(b), I think that it was.
In light of the cross-examination, the prosecutor should have been permitted-notwithstanding
a Rule 608(b) objection-to demonstrate that Perry was cooperating in other cases
as well as Smith's and that any money paid to him was for all his cooperation,
not just his cooperation in Smith's case. Not only is this fair redirect examination,
but it is also necessary to put the claim of bias into proper perspective. Indeed,
there is nothing in Rule 608 that forbids a prosecutor or any lawyer from questioning
a witness in a way that diminishes a suggestion of bias.
But any lawyer, including any prosecutor, crosses the line between the permissible
and the impermissible when the lawyer asks one witness to testify that he or
she believes that the information given by another witness (an informer-witness
in Smith, Fusco, and Lindemann) is truthful. This form of bolstering or vouching
is specifically and explicitly forbidden by Rule 608(b). And it is prohibited
for a good reason: Witnesses who come to court with a badge of authority are
not permitted to say that the testimony of other witnesses is truthful, for
it is the trier of fact who decides whether any witness's testimony is truthful.
The opinion by one witness that another witness's information is truthful is
off limits.
A cross-examination of one witness that suggests bias on the part of another
witness neither requires nor permits a redirect examination that invites the
witness to offer an opinion as to the truthfulness of the other witness's information
or testimony. Whether it is truthful or not is for the trier of fact. So, while
it is permissible to respond to an exaggerated claim of bias by pointing out
reasons that the bias is exaggerated, even an exaggerated claim of bias does
not warrant a response that involves one witness opining on the truthfulness
of another witness's testimony.
In the end, even without a proper Rule 608(b) objection to the question asked
of Agent Haera about the truthfulness of Perry's information, that objection
was properly sustained. Not all trial judges would have seen the point, however.
Prudent defense lawyers will want to make the right objection in the future.
Stephen A. Saltzburg is the Howrey Professor of Trial Advocacy, Litigation,
and Professional Responsibility at George Washington University School of Law
in Washington, D.C. He is also a contributing editor to Criminal Justice magazine
and a member of the Section Council.