Impeachment of a Defense Witness with Prior Inconsistent Statements Made to Defense Counsel and Disclosed in a Winfield Proffer Is a “Dangerous Application” of the Broad Rule Allowing Witness Impeachment With Extrinsic Evidence, and a Tactic the Government Should “Think Hard Before Pursuing Again”

Floyd E. Brooks v. United States, No. 13-CF-735 (decided June 4, 2015)

Players:  Associate Judges Glickman and Thompson, Senior Judge Farrell.  Opinion by Judge Farrell.  Thomas Engle and Sharon Burka for Mr. Brooks.  Trial judge:  Lynn Leibovitz.

Facts:  In a first-degree murder trial where Brooks was alleged to have shot and killed two people, the defense filed a pretrial motion pursuant to Winfield seeking to present a third-party perpetrator defense.  The motion proffered the testimony of a witness named Vernon Parrish, who told defense counsel and a defense investigator that he had seen a different person shoot at the decedents.  The trial court permitted the Winfield evidence, but on direct examination, Parrish made statements inconsistent with the proffer.  On cross-examination, the government confronted Parrish with the contents of the Winfield proffer, and Parrish denied making some of the statements in the proffer.  To permit the government to “complete the impeachment,” the parties then “agreed to a detailed stipulation read to the jury confirming that Parrish had been ‘interviewed by defense counsel Steven Kiersch and defense investigator Dale Vaughn’ and had provided the information stated in the Winfield proffer.”  The defense did not object to any portion of this impeachment.                   

Issue:  Did the trial court engage in plain error warranting reversal by 1) permitting the government to impeach the defense witness with prior inconsistent statements made to defense counsel and disclosed in a pretrial motion seeking permission to present a Winfield defense, and 2) permitting the government to “complete the impeachment” of the same witness through a stipulation that the witness had made particular statements to the defense team?

Holding:  No.  The impeachment “presents troublesome issues,” but the defense never objected to it at trial, so the plain error standard applies.  Even assuming error that was plain, the third requirement of the plain error test was not satisfied because Brooks did not show that the error affected his substantial rights.

Of Note: 

• Even though the disposition did not require the Court to reach the question of error, the Court sharply criticized this impeachment procedure, calling it “a dangerous application of the broad rule . . . allowing witness impeachment with extrinsic evidence,” and “advis[ing] the government to think hard before pursuing [this tactic] again.”   

•  The Court was particularly hostile to “the latter part of this procedure” — the “completion of the impeachment” through the parties’ stipulation that Parrish made particular statements to the defense team that were inconsistent with his testimony at trial — which it called “fraught with difficulty.” 

•  Use this opinion and object if the government flouts the Court’s advice in the future and tries to use a Winfield proffer to impeach a defense witness.  MW

Read full opinion here.