New York Federal Criminal Practice Blog
November 26, 2008

Second Circuit Issues Notable Decision on Defendant's Right to Explore Bias of Government Witness

Like Joe Namath, the defense lawyer’s job is to throw the ball, though sometimes, it’s best to throw that ball without warning.  Applying the maxim “ask, and thou shalt not receive,” the district judge in United States v. Figueroa, No. 06-1595-cr., 2008 4911158 (2nd Cir. November 18, 2008), denied the defense lawyer’s request for permission to cross-examine a government witness about his swastika tattoos.  Holding that this ruling had been an abuse of discretion, the Second Circuit found it violated the defendant’s Confrontation Clause right to demonstrate the witness’ likely racial bias against the defendant, a member of a minority group.  (The Court, however, found the error to be harmless in light of the overwhelming evidence of the defendant’s guilt.)

Interaction Between Rule 608 and Rule 402

The decision is notable for the Court’s conclusion that the district court should not have precluded the line of cross examination under Rule 608 of the Federal Rules of Evidence.  (Rule 608 sets the parameters for cross-examination relating to a witness’ character for truthfulness.)  “[I]mpeachment for bias is admissible under Rule 402 [the rule defining what is relevant evidence] even when the impeachment material is not independently admissible under Rule 608.”  The Court went on to explain, quoting the Supreme Court’s decision in United States v. Abel, 469 U.S. 45 (1984):

“Bias is a term used in the ‘common law of evidence’ to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest. Proof of bias is almost always relevant.” Because the jury could have found that [the witness’ swastika] tattoos were indicative of bias, examination of him on that subject matter was relevant irrespective of its admissibility vel non under Rule 608.

Notably, while it was error to preclude the line of questioning on Rule 608 grounds (and harmless error at that), the Court said it was expressing no opinion on whether the district court could have excluded it on Rule 403 grounds (the rule that requires the trial judge to weigh the probity of the evidence against its prejudice). 


This is an important precedent underlining the right of defendants (and duty of defense lawyers) to explore a witness’ potential biases.  “Proof of bias is almost always relevant,” the Court reiterates.  While the kind of manifest bias at issue in Figueroa –  indelible bodily markings of racial animus – may be uncommon, less obvious forms of bias (likes, dislikes, fears and self-interest) are commonplace.  Figueroa is a useful weapon against a trial court’s efforts to preclude or shut down prematurely such lines of cross-examination. 

Lawyers: Jon Getz, Muldoon & Getz (defendant); AUSAs Joseph J. Karaszewski and Terrance P. Flynn

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