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Opinion Testimony — Comment by One Witness on Whether Another Witness “Is Lying”

State v. Andre Bolden, 2003 WI App 155, PFR filed 7/2/03
For Bolden: Mark S. Rosen

Issue/Holding: A defendant may be asked whether another witness offering contradicting testimony “is lying,” ¶11.

The seminal case is State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984): one witness may not give an opinion as to whether another witness is telling the truth. A subsequent court of appeals decision allowed the prosecutor “to restate prior witnesses’ testimony and to ask [the defendant] if the prior witnesses were lying.” State v. Jackson, 187 Wis. 2d 431, 437-38, 523 N.W.2d 126 (Ct. App. 1994). But a still later decision said that Jackson, being “in clear conflict with” Haseltine, didn’t necessarily have to be followed; instead, Haseltine was the “correct” result. State v. Kuehl, 199 Wis. 2d 143, 147-151, 545 N.W.2d 840, 841-843 (Ct. App. 1995). And now the court of appeals says that it had no power to do what it did in Kuehl, which means that Jackson is restored to the books. But why should that be so? If Jackson indeed is “in clear conflict with” Haseltine, then why can’t it be said that the usurping decision is Jackson and notKuehl? The court doesn’t say – but if the right to challenge a court of appeals’ arrogation of authority has an unlimited shelf life, then it’s hard to see why that question can’t be litigated. “Because the court said so in Bolden” is no answer, by the court’s own logic. Nor is the argument far-fetched: only recently, the court said that where its own precedents sharply conflict it is free to follow the one embodying “the better-reasoned analysis.” Bruzas v. Quezada-Garcia, 2002 WI App 57, ¶22, 251 Wis.2d 449, 460, 642 N.W.2d 207 (Ct. App. 2002). See also Tomczak v. Bailey, 206 Wis.2d 405, 414, 557 N.W.2d 840 (Ct. App. 1996) (“when such a condition exists, we are free to follow those cases which we conclude represent the better law”). And what happens when the court of appeals is confronted with conflicting supreme court precedent? “It is a long-standing rule that where supreme court decisions appear to be inconsistent, or in conflict, we follow the court’s most recent pronouncement.” Kramer v. Board of Educ., 2001 WI App 244, ¶20, 248 Wis.2d 333, 344, 635 N.W.2d 857.So, which is it, Kuehl (blindly follow) or Bruzas (decide which case makes more sense)? Again, one thing’s sure: just because Bolden says so doesn’t make it so. And if you’re looking for, say, federal authority — after all, our code of evidence is patterned on the FRE — you can start with U.S. v. Gaines, 170 F.3d 72, 81 (1st Cir. 1999):

This circuit has held that it is improper for an attorney to ask a witness whether another witness lied on the stand. United States v. Fernandez, 145 F.3d 59, 64 (1st Cir. 1998); United States v. Sullivan, 85 F.3d 743, 750 (1st Cir. 1996); United States v. Akitoye , 923 F.2d 221, 224 (1st Cir. 1991); cf.United States v. Boyd, 54 F.3d 868, 871 (D.C. Cir. 1995); United States v. Richter, 826 F.2d 206 (2d Cir. 1987). Underlying this rule is the concept that credibility judgments are for the jury, not witnesses, to make. Sullivan, 85 F.3d at 750.

See also, e.g., U.S. v. Combs, 9th Cir. No. 02-50485, 8/5/04 (plain error for prosecutor to make defendant call government agent-witness a liar); U.S. v. Harris, 3rd Cir No. 05-2016, 12/12/06 (after noting that “nearly all” federal courts find error in questioning defendant about credibility of government witness):

Today, we follow our sister circuits and hold that asking one witness whether another is lying is inappropriate. Such questions invade the province of the jury and force a witness to testify as to something he cannot know, i.e., whether another is intentionally seeking to mislead the tribunal. In addition, as Harris’ counsel explained during oral argument, such questions force defendants into choosing to either undermine their own testimony or essentially accuse another witness of being a liar.

Actually, the “correct” answer, at least for the case at hand, might be that Jackson can be seen as mere embellishment on rather than overruling of Haseltine; and that Kuehl didn’t have to (or even in fact) overrule Jackson. All three decisions might be reconcilable. That is because the holding in Jackson is actually fairly narrow, and indeed distinguishes Haseltine: the prosecutor didn’t seek an opinion whether the other witnesses were truthful, but was merely “highlighting the inconsistencies between Jackson’s testimony and the testimony of other witnesses in an effort to impeach Jackson and to see if he had any explanation for the differences in the testimony.” 187 Wis. 2d at 437-38. This questioning, the court carefully noted, didn’t violate Haseltine given the intended purpose and effect of the questioning (i.e., impeachment). Id. Granted, the distinction between impeachment and substantive effect is often artificial, but that’s true of many things. Keep the distinction in mind. Nor is there any reason to think that such an inquiry can’t be directed at a state’s witness in an appropriate instance.

More: Lanham v. Commonwealth, KY No. 2003-SC-0268-MR, 8/25/05 (unredacted recording admisisble, but must be accompanied by limiting instruction to effect that such comments not admissible for their truth but to provide context to defendant’s responses; closely-split opinion contains detailed discussion of cases from around country on issue).

UPDATE: The supreme court has authorized the technique of asking a defendant whether another witness is lying, at least where the other witness is an eyewitness to the crime and the “purpose and effect” is to impeach the examined witness’s credibility rather than to bolster the other witness’s. State v. Victor K. Johnson, 2004 WI 94. Bolden is therefore specifically approved (grounded, it should be noted, in the distinction posited above, between impeachment and mere opinion as to another witness’s credibility). But for a different result given a different context see State v. Smith, 2003 WI App 234 (prosecutor’s closing argument impermissibly characterized defense theory as “the police are lying,” where the defense had not in fact made such an argument to the jury.


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