Tuesday, November 18, 2008

Swastika tattoo is fair game for cross-examination

For the second time in a week, the Court of Appeals has held that criminal defendants are allowed to cross-examine their adverse witnesses if they have racist views.

The case is United States v. Figueroa, decided on November 18. The defendant was arrested and charged with possessing an unlicensed gun. A government witness against Figueroa had swastika tattoos. Since Figueroa is a racial minority, his lawyer wanted to cross-examine the witness, Wright, about his racist views which could impeach his credibility. The trial court said no. The Court of Appeals said yes.

The Confrontation Clause of the Sixth Amendment allows the defendant to test the adverse witness' bias to testify falsely against him. Swastika tattoos are sufficiently racist that the cross examiner should be allowed to focus on them. As the Court of Appeals held a few days ago in ruling that a criminal defendant was allowed to similarly cross-examine a racist witness, "racial bias, at least when held in extreme form, can lead people to lie or distort their testimony, and therefore might bear on the accuracy and truth of a witness' testimony, even though the bias is directed generally against a class of persons and not specifically against the accused."

It goes without saying that the swastika is associated with racist views. The Court of Appeals says it anyway, going so far as to quote Mein Kampf, Adolph Hitler's biography, which talks about the symbol's meaning. While the trial court has latitude in limiting cross-examination, in this case the trial court went too far, citing Fed.R.Evidence 608, which governs attacks on a witness's credibility and truthfulness. That was wrong. The real purpose of the proposed cross examination was to expose witness bias, which is permissible.

The defendant loses the appeal, however. The Court of Appeals held the improper limitation on cross-examination was harmless: "even if Wright's credibility had been undermined by cross-examination regarding his swastika tattoos and related bias, the remainder of the government's case was overwhelming."

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