§ 22.04 BIAS IMPEACHMENT

• Jurisdiction: United States

§ 22.04. BIAS IMPEACHMENT

A witness's bias, interest, partiality, or corruption³⁶ is always relevant for impeachment. Although the revised Uniform Rules of Evidence and several state jurisdictions have promulgated rules on bias,³⁷ there is no rule on bias in the Federal Rules.³⁸ However, a number of other rules mention bias,³⁹ and in United States v. Abel⁴⁰ the Supreme Court held that impeachment for bias was proper. According to the Court, "proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony."⁴¹

There are two broad categories of bias. First, a relationship between a witness and one of the parties may show bias.⁴² The relationship may be a favorable one, such as a familial, employment, business, sexual,⁴³ or other relationship,⁴⁴ or it may be a hostile relationship, caused by prior fights and quarrels.⁴⁵ Fear may also be an impeaching factor⁴⁶ as is racial bias.⁴⁷

The Supreme Court in Abel pointed out that membership in a prison gang differed from membership in other groups: "If the prosecutor had elicited that both respondent and Mills belonged to the Book of the Month Club, the jury probably would not have inferred bias. The attributes of the Aryan Brotherhood — a secret prison sect sworn to perjury and self-protection — bore directly not only on the fact of bias but also the source and strength of Mills' bias. The tenets of this group showed that Mills had a powerful motive to slant his testimony towards respondent, or even commit perjury."⁴⁸

Second, a relationship between a witness and the litigation also may show bias — such as a financial interest in the case at bar,⁴⁹ or in a related case.⁵⁰ One of the most common examples is a prosecution witness who is offered immunity or a reduced charge in exchange for testifying against a defendant.⁵¹ Cases involving this issue frequently raise confrontation issues and are discussed below.

As with all types of impeachment, the examiner must have a good faith basis for a question.⁵²

[A] Right of Confrontation

Substantial curtailment of a criminal defendant's efforts to establish the bias of prosecution witnesses is unconstitutional. In Davis v. Alaska,⁵³ the defense attempted to show that a key prosecution witness was a juvenile probationer and therefore had a motive — retention of his probationary status — to testify in a way favorable to the prosecution. The trial judge, based on a statute, excluded this evidence. The Supreme Court reversed: "The State's policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness."⁵⁴

Similarly, in Olden v. Kentucky,⁵⁵ a rape victim testified that Olden had tricked her into leaving a bar, raped her, and then drove her to the house of Bill Russell, where she was released. Russell, also a prosecution witness, testified that he had seen the victim leave Olden's car and that she had immediately complained of rape. The defense claimed consent, arguing that the victim and Russell were involved in an extramarital relationship and that the victim fabricated the rape story to explain to Russell why she was in the defendant's car. By the time of trial, the victim and Russell were living together, but the trial judge refused to permit cross-examination on this fact. The judge believed that this information would prejudice the jury against the victim because she was white and Russell was African-American. The Supreme Court reversed per curiam: Olden had consistently maintained that the alleged victim lied because she feared jeopardizing her relationship with Russell. Thus, her current living arrangement with Russell was relevant to impeachment, and the foreclosure of this line of inquiry violated the right of confrontation.

[B] Foundational Requirement

Most jurisdictions require that a foundation be laid on cross-examination before extrinsic evidence of bias is admissible. Stated another way, the examiner must question the witness about the bias or be foreclosed from presenting the testimony of other witnesses (extrinsic evidence) on the issue. This requirement is fairer to the witness and saves time because the other side can attempt to rehabilitate on redirect examination rather than recalling the witness...