2018] EVIDENTIARY TRAPDOORS 1157
Trap (n.): “A stratagem for catching or tricking an unwary person. . . . A
confining or undesirable circumstance from which escape or relief is difficult
. . . . A trapdoor.” 1
As “[t]he government’s star witness” in the federal trial of David Hinkson
for solicitation of murder, Elven Joe Swisher proudly displayed his Purple
Heart lapel pin on his military uniform as he testified about his military
exploits in the Korean War.2 He then confidently testified that the defendant
had solicited him to commit the murders because of Swisher’s copious special
operations experience while he was deployed.3 When pressed by defense
counsel on cross-examination abou t the authenticity of his military
credentials, Swisher dramatically produced a document from his pocket
corroborating the details of his extensive service.4
There was, of course, one problem with Swisher’s testimony: none of it
was true. Military documents subpoenaed by the defense revealed that Swisher
lied about his military service to the court and the jury.5 But when the defense
attorney later attempted to impeach Swisher’s testimony with documents
provided by the Department of Defense, the prosecutor objected based on a
novel interpretation of Federal Rule of Evidence (“FRE”) 608(b), which
disallows the use of extrinsic evidence to prove collateral matters—such as a
witness’s character for truthfulness—at trial.6 The court sustained the
1. Trap, THE FREE DICTIONARY, http://www.thefreedictionary.com/trap (last visited Jan.
20, 2018). Dictionaries sometimes cross-list the term “trapdoor” with the related term “back
door,” which they define as “a secret, furtive, or illicit method, manner, or means.” Back door,
DICTIONARY.COM, http://www.dictionary.com/browse/back-door (last visited Oct. 22, 2017).
2. United States v. Hinkson, 585 F.3d 1247, 1268 (9th Cir. 2009) (en banc) (Fletcher, J.,
dissenting). “A Purple Heart is an award given to” United States military personnel “who are
wounded in combat.” Id. at 1270; see THE MILITARY ORDER OF THE PURPLE HEART, http://www.
purpleheart.org (last visited Jan. 20, 2018).
3. See Hinkson, 585 F.3d at 1269–70 (noting that the United States argued in its opening
statement to the jury that Swisher was a Korean War combat veteran, and arguably suggested at
trial that Swisher’s experience in the Korean War formed the basis of Hinkson’s sincere desire to
hire Swisher to murder federal officials).
4. Swisher produced a DD Form 214 (“Certificate of Release or Discharge from Active
Duty”). Id. at 1254, 1275. A DD-214 is a document issued by the United States Department of
Defense when a military service member retires, separates, or is discharged from active duty in
any branch of the United States Armed Forces. See The Road to Acquire Your DD214, http://www.
dd214.us (last visited Jan. 20, 2018).
5. Hinkson, 585 F.3d at 1276 (recounting how Swisher fabricated his records).
6. The defense attorney’s strategy to impeach Swisher’s trial testimony regarding his
military service constitutes a classic example of the “impeachment by contradiction” doctrine,
pursuant to Federal Rule of Evidence (“FRE”) 607. Id. at 1282. The Federal Rules place no formal
restrictions on the manner in which the defense conducts the impeachment. See FED. R. EVID.
607; see also United States v. Castillo, 181 F.3d 1129, 1132–33 (9th Cir. 1999) (noting that “the
concept of impeachment by contradiction [under FRE 607] permits courts to admit extrinsic
evidence that specific testimony is false” on the theory that “the witness should not be permitted
to engage in perjury, mislead the trier of fact, and then shield himself from impeachment by