Important ruling on how much of a proffer you need in order to cross on a prior bad act bearing on veracity and on bias. The takeaway: the standard is "a fairly lenient one"

Keith A. Moore v. United States, No. 12-CF-778 (decided April 30, 2015).

The Players: Chief Judge Washington, Associate Judge Glickman, and Senior Judge Pryor.  Opinion for the Court by Judge Glickman; dissenting opinion by Judge Pryor.  PDS for Mr. Moore.  Trial Judge: Ann O’Regan Keary.

The Facts: In this armed robbery trial, Mr. Moore’s defense was that the complainant, Lorenzo Thomas, fabricated his story that Mr. Moore had stolen $1,000 from him because Mr. Thomas was due in court the next day for a probation revocation hearing for failure to pay restitution, so he needed the cash -- or at least a ready excuse for why he could not pay the restitution. 

Prior to trial, Mr. Thomas had told the government that he had a lot of cash from working at P.F. Chang’s restaurant.  He later recanted that and said the money came from a tax refund and gambling proceeds.  The prosecutor obtained a copy of Mr. Thomas’s tax return, which reflected a large refund, primarily due to Mr. Thomas claiming his little sister as a dependent.  It occurred to the prosecutor that the tax credit might not have been appropriate because Mr. Thomas and his little sister both lived with their mother, who was a federal employee and the more natural person to claim the child as a dependent.  In discussing the tax return with Mr. Thomas, the prosecutor told him that “there was no understanding between him and the government about whether claiming his sister as a dependent was appropriate.” 

Issue: The defense sought to cross-examine Mr. Thomas about whether he had committed tax fraud on two bases:  (1) the defense argued that a false representation on a tax return was a proper subject on cross-examination because it was a prior bad act bearing on Mr. Thomas’s veracity with respect to the contested issues at trial; and (2) cross-examination about the suspected false tax return was probative of Mr. Thomas’s bias because the prosecutor had discussed with him a possible problem with the tax return, and he may have therefore harbored a subjective belief that he was in jeopardy of prosecution, which would give him a testimonial bias.

The judge precluded all inquiry about the tax return, ruling that the matter was too convoluted because it required knowledge of tax rules, Mr. Thomas had used a professional tax preparer and did not complete the return himself, and that even if the return reflected dishonesty, that was not as probative as other fertile grounds the defense had for cross-examination.

Holding: The trial court erred in precluding the desired cross-examination because the defense proffer was adequate to require it on both theories -- prior bad act bearing on veracity, and bias.  The error was harmful at least with respect to the former purpose because Mr. Thomas’s veracity as to the source of the money he claimed the defendant took from him was hotly contested at trial.

Important Rules and Points for Practitioners: 

This is an important case on the doctrine of prior bad act bearing on veracity.  This opinion clarifies that the standard for a defense proffer to permit such inquiry is a “fairly lenient one,” the very same standard as for bias cross-examination (with which judges and practitioners are more familiar).  The proffer need suggest only a “well-reasoned suspicion” that “the witness committed a veracity-impeaching bad act or is biased in the manner asserted.”  Here, the defense proffer of suspicious circumstances warranted permitting the cross-examination as a matter of law, although the defense could not definitively prove dishonesty: although the tax return was prepared by a professional, it included an assertion that the witness provided the factual information that permitted the tax credit; it was undisputed that the witness would not be allowed to take the tax credit if his mother’s adjusted gross income (AGI) that year was higher than his AGI; the witness’s AGI was only $9,245; his mother was a federal employee, so it is likely that her AGI was higher; therefore it is “quite a reasonable suspicion” that the witness provided false information to the tax preparer for personal gain.  This was sufficient.  SF

Read full opinion here.