State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
¶35 … Rule 906.08(2) permits the cross-examination of a witness about “extrinsic” matters, “if probative of truthfulness or untruthfulness.” Certainly, lying on direct-examination, and repeating the lie on cross-examination, is “probative of truthfulness.” Moreover, Rodriguez opened the door, and the prosecutor was fully justified in calling him on it. See Harris v. New York, 401 U.S. 222, 223–226 (1971) (prosecutor did not violate defendant’s rights by introducing on cross-examination the defendant’s statement to the police even though the defendant had not been warned of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), because the defendant opened the door by denying matters he admitted in that uncounseled statement) (“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.”) (citations omitted). Further, in context, the prosecutor’s use of the words “lie” and “lying” was not, as Rodriguez contends, the prosecutor’s “personal comment” on Rodriguez’s credibility; it was the prosecutor’s confronting Rodriguez with what Rodriguez tacitly at least admitted were inconsistencies in his testimony, when he acknowledged that he did, indeed, have unexecuted warrants. Rodriguez’s claim that what the prosecutor did denied him a fair trial is without merit.