United States v. Cedeno, No. 09-1857-cr (2d Cir. May 2, 2011) (Jacobs, Calabresi and Chin, CJJ)
In 1990, the Appellate Division specifically found that a New York City detective lied at a suppression hearing, by “patently tailor[ing]” his testimony to avoid suppression. Here, the circuit held that it was error for the district court to categorically preclude cross-examination of that same detective at trial about the adverse credibility finding.
The district court, relying on United States v. Cruz, 894 F.2d 41 (2d Cir. 1990), had held that the Appellate Division’s finding went to the detective’s credibility in a specific hearing, not that he lacked veracity generally, and that, here, the subject matter of the testimony would be different because the detective would not be testifying about the constitutionality of a search.
The circuit faulted this inquiry as “too narrow,” because Cruz did not “purport to set out a rigid two-part test.” A too-rigid application of Cruz risks violating both Fed. R. Evid. 608(b), which gives district courts the discretion to permit cross-examination into “specific instances of conduct” if the conduct is “probative of” the witness’ character for truthfulness or untruthfulness,” and the Confrontation Clause.
The circuit also noted that, several years before Cruz, it had upheld a district court’s ruling that a witness could be cross-examined based on occasions where his testimony in other cases had been found to be unworthy of belief.
Thus, here, before ruling, the district court should have also considered, “for example,” whether the lie was under oath in a judicial proceedings, whether it was about a significant matter, the passage of time and whether there had been any intervening credibility determinations, the motive for the lie and whether there was a similar motive in the current case, whether the witness had an explanation for the lie, and whether that explanation was plausible.
That said, the court also concluded that the error was harmless and affirmed the conviction.