Thursday, November 20th, 2008


United States v. Figueroa, No. 06-1595-cr (2d Cir. November 18, 2008) (Kearse, Sack, Hall, CJJ)

In an interesting companion to Brinson v. Walker [blogged below under the title “Confrontation Claws”], the court treated a highly similar issue, this time under both the Confrontation Clause and the federal rules of evidence.

At Edwin Figueroa’s gun possession trial, he wanted to cross-examine a government witness about the fact that the witness had swastikas tattooed on his body. Since Figueroa was a member of a minority group, he argued that the tattoos would show that the witness was biased. Citing Rule 608, the district court precluded the questioning as inadmissible evidence of “bad character.”

On appeal, the circuit disagreed, holding that precluding the cross-examination violated the Confrontation Clause. “Inasmuch as the tattoos suggested that [the witness] harbored animus against racial or ethnic minority groups and their members, they were relevant to and probative of [his] credibility, bias, and motive to lie when testifying against Figueroa.” On the facts here, however, the error was harmless, since the witness was one of several who tied Figueroa to the gun.

Of particular interest in this opinion is the court’s discussion of the relevant rules of evidence. The court held that the district court erred “as a matter of law” in precluding the evidence under Rule 608. Impeachment for bias is admissible under Rule 402 even if the impeachment materials are not independently admissible under Rule 608 as “concerning” the witness’ “character for truthfulness or untruthfulness.” The opinion also noted that, since the district court did not exclude the testimony under Rule 403, there was no basis for reviewing its ruling on Rule 403 grounds. However, the court suggested that “[b]ased on the proverbial cold record before us, the reasons the court excluded the relevant tattoo evidence seem relatively modest compared to the Rule 403 factors favoring admissibility,” although it ultimately “express[ed] no opinion” as to whether excluding the evidence under Rule 403 would have been within the trial court’s discretion.

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