In an important decision for the right to a fair trial, the Second Circuit recently held that a detective -- testifying against the only charged defendant in a case involving the seizure of weapons from a minivan occupied by several persons besides that defendant -- could be impeached with prosecutors' initial decision to charge other occupants of the vehicle with possession of those firearms.

In United States v. White, 2012 WL 3734425 (2nd Cir., August 30, 2012), the central issue in the felon-in-possession trial was possession: which of several passengers actually had possessed the firearms in question? The Court of Appeals vacated the conviction because of erroneous evidentiary rulings made by the district judge, with significant consequences for other cases. In the first ruling, the trial judge precluded defense counsel from cross-examining the lead detective involved in the arrest of White and the weapons seizure from the minivan on the basis that state prosecutors had initially charged other occupants of the vehicle with possessing those weapons. The court had reasoned that charging decisions rest on a number of considerations which do not necessarily speak to the issues of guilt or innocence of the person on trial. Here, however, defense counsel argued, the initial charging decision was simply inconsistent with the decision to charge White alone when his defense was that the guns were not his. The Court of Appeals agreed, rejecting the authorities relied upon by the court below, including United States v. Re, 401 F.3d 828 (7th Cir. 2005), and held that charging decisions may be proper subjects for cross-examination and so may not be reflexively excluded. In White's case, the inconsistent earlier charging decision was "plainly relevant" to the question of possession, and under Federal Rule of Evidence 403, its probative value was not substantially outweighed by the risk of jury confusion.

In this second erroneous ruling, the trial court had precluded the defense from cross-examining the same detective under FRE 608(b) on the basis of his testimony in an unrelated case. The trial judge in the unrelated case had in a number of respects found the detective's testimony to be non-credible, but the White trial judge would not allow those findings of untruthfulness to be used in the present cross-examination. The Second Circuit held that this, too, was error, reaffirming its earlier decision in United States v. Cedeno, 644 F.3d 79 (2nd Cir.), cert. denied, 132 S. Ct. 315 (2011). The Cedeno case had set forth a list of factors for courts to consider in determining the admissibility of a prior incident in which the witness's testimony was found non-credible (Cedeno had not yet been decided when the same evidentiary issue arose at the trial in White). In this instance, the district judge in the earlier case had repeatedly found the detective’s testimony "not credible." The government made the specious argument in White that a judge's finding that testimony was "not credible" was not equivalent to a finding that the witness had lied. The Second Circuit easily rejected this argument, saying "A finding that a witness is not credible is not fundamentally different from a finding that the witness lied. It often just reflects a fact finder's desire to use more gentle language." While trial judges retain authority to impose reasonable limits on cross-examination, the court below erred in excluding the prior judge's findings of lack of credibility.

Of course, in the Second Circuit and perhaps elsewhere now, the White and Cedeno decisions open up new avenues of discovery prior to trial. Arguably, defense counsel are entitled to receive not simply Jencks material relating to the testimony at issue in the present trial, and conventional Giglio impeachment material, but any prior testimony of the law enforcement officers involved in the present trial, to be exhaustively mined for any adverse findings or comments by the trial judge regarding the officers' earlier truthfulness or lack of truthfulness.

It is also worth noting that, in vacating White’s conviction and remanding based on the above two significant errors, the Court of Appeals explicitly declined to decide another interesting issue raised by defense counsel. Counsel had also sought to cross-examine the detective based on statements made in the government's brief in opposition to a suppression motion in the same case, statements which described a sequence of events regarding the finding of the weapons which was inconsistent with the testimony of the detective; counsel had argued at the inconsistent statements in the brief were admissible as an admission by a party-opponent under FRE 801(d)(2). The only argument the government could muster in opposition, it appears, was that the admission of the contrary statements from the brief would require the lead prosecutor to take the witness stand to explain why he wrote what he did (and, presumably, why either he or the detective got the facts wrong). Why this step, even if necessary, would be an impediment to the defendant’s exercise of his right to full cross-examination and his entitlement to a fair trial is entirely unclear. However, as noted, the Court of Appeals did not reach this issue.