United States v. Whitmore, Gerald F.
360 U.S. App. D.C. 257, 359 F.3d 609 (2004)
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Rule of Law:
Under Federal Rule of Evidence 608(b), a trial court abuses its discretion when it prohibits a defendant from cross-examining the government's key witness about specific instances of past conduct that are highly probative of the witness's character for untruthfulness, especially when that witness's credibility is central to the case.
Facts:
- On November 1, 2001, Officer Bladden Russell of the Metropolitan Police Department (MPD) directed a crowd at a bus stop to disperse.
- Gerald F. Whitmore was the only person who did not comply and fled when Officer Russell approached him.
- As Whitmore fled, Russell noticed him holding his right hand close to his body at the right side pocket of his jacket.
- MPD Officer Efrain Soto, Jr., who joined the chase, testified that he saw Whitmore throw a gun towards an apartment building.
- After apprehending Whitmore, Officer Soto found a gun in a window well of the apartment building.
- Officer Soto was the only witness who testified to seeing Whitmore possess or throw the gun.
- Police found a small bag of cocaine base in Whitmore's left jacket pocket, but found nothing in his right pocket.
Procedural Posture:
- Gerald F. Whitmore was charged in U.S. District Court with unlawful possession of a firearm by a felon and simple possession of a controlled substance.
- Before trial, the government filed a motion in limine to prevent Whitmore's counsel from cross-examining Officer Soto on certain past conduct.
- The district court granted the government's motion, prohibiting cross-examination regarding a prior judicial finding of dishonesty and other alleged misconduct.
- The court also excluded the testimony of three defense character witnesses intended to impeach Officer Soto.
- A jury convicted Whitmore on both the firearm and drug possession counts.
- Whitmore, as appellant, appealed his firearm conviction to the U.S. Court of Appeals for the D.C. Circuit, challenging the district court's evidentiary rulings.
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Issue:
Does a district court commit reversible error by prohibiting a defendant, under Federal Rules of Evidence 608(b) and 403, from cross-examining the government's sole eyewitness about specific past conduct highly probative of untruthfulness, including a prior judicial finding that the witness lied under oath?
Opinions:
Majority - Henderson, Circuit Judge
Yes. The district court committed reversible error because by prohibiting all meaningful cross-examination into the witness's character for truthfulness, it deprived the defendant of a genuine opportunity to present his defense. The Sixth Amendment guarantees a defendant the right to cross-examine witnesses, and Fed. R. Evid. 608(b) permits inquiry into specific instances of conduct that are probative of a witness's character for untruthfulness. Here, a prior judicial finding that Officer Soto had 'lied' under oath was highly probative of his character and should have been permitted. The trial court's concerns about unfair prejudice under Fed. R. Evid. 403 could have been addressed by limiting the scope of questioning or issuing a jury instruction, rather than imposing a complete prohibition. This error was compounded by the exclusion of cross-examination regarding Soto's suspended driver's license and failure to pay child support, for which defense counsel had a reasonable factual basis. Because Soto's testimony was the sole evidence connecting Whitmore to the firearm, the errors were not harmless and a new trial is required for the firearm conviction.
Analysis:
This case underscores the critical importance of a defendant's Sixth Amendment right to cross-examination, particularly when a single witness's credibility is determinative of guilt. The court's holding clarifies that a prior judicial finding that a witness lied under oath is exceptionally probative evidence under Rule 608(b) and cannot be easily excluded under Rule 403's balancing test. The decision serves as a guide for lower courts, pushing them to use less drastic measures like limiting instructions before completely foreclosing a line of impeachment against a key government witness. It reinforces the principle that the rules of evidence favor admissibility, especially when the evidence is central to the defense's theory of the case.
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