Impeaching Witnesses in Federal and Texas Criminal Cases

Assoc. Prof. Eric Porterfield, UNT Dallas College of Law

• Bias in Sexual Assault Cases In Olden v. Kentucky, 488 U. S. 227 (1988), the defendant was charged with various sexual crimes against the complainant, and his defense was consent. Defendant wanted to prove that the complainant was co-habitating with Russell, asserting that this was necessary to prove her motivation to lie against him. Specifically, defendant argued that he and the complainant had engaged in consensual sex, and that the complainant, because she feared jeopardizing her relationship with Russell, lied about being raped. The Court found that the trial court had erred in excluding this evidence, holding that a reasonable jury might have had a much different impression of the complainant’s credibility had the defendant been able to expose her motivation through cross examination. Id. at 233. Where the appellant’ s sole defense was consent, the trial court erred in prohibiting him from presenting evidence that the complainant had previously engaged in group sexual encounters with other men. This evidence, in combination with expert testimony on the subject of nymphomania, was relevant to show the complainant's motive to protect her alleged affliction. Chew v. State, 804 S.W. 2d 633, 638 (Tex. App. San Antonio 1991, pet. ref’d).

• Bias Against Justice System. Appellant was entitled to prove that the state’s witness had distributed handbills, and why he had distributed them, where this showed his bias and prejudice against the system of justice in Austin. Jackson v. State, 482 S.W. 2d 864, 868 (Tex. Crim. App. 1972).

• Bias Stemming from Membership in Organizations. “A witness’ and a party’ s common membership in an organization, even without proof that the witness or party has personally adopted its tenets, is certainly probative of bias.” United States v. Abel, 469 U.S. 45, 52 (1984). The trial court properly allowed the state to impeach its own recalcitrant witness with evidence that both he and the defendant were members of the “Black Villains Assassins,” because their gang affiliation showed bias. Bridgewater v. State, 905 S.W. 2d 349, 353 (Tex. App. Fort Worth 1995, no pet.); see McKnight v. State, 874 S.W. 2d 745, 746 (Tex. App. Fort Worth 1994, no pet.)(evidence that witness and appellant belonged to same gang bore on witness’ s veracity and bias, and was sufficiently probative to be admissible); see also Bynum v. State, 731 S.W. 2d 661, 664-65 (Tex. App. Houston [14th Dist.] 1987, no pet.).

• Arrest Quotas. The trial court erred in not permitting appellant to cross-examine the arresting officer in a drink solicitation case about how much money he had spent at the bar, where appellant's theory was that the officer had to make meritless arrests in order to justify his expenses. Vela v. State, 776 S.W. 2d 721, 725 (Tex. App. Corpus Christi 1989, no pet.).

• Bias Stemming from Relationships. It was not error for the state to prove that the witness enjoyed a “special relationship with” and was “romantically involved with” appellant, for the purpose of showing the witness’s bias. Vaughn v. State, 888 S.W. 2d 62, 74-75 (Tex. App. Houston [1st Dist.] 1994, pet. granted).

• Parole Files Where the defendant alleges that his file with the Texas Board of Pardons and Paroles contains letters from a state’s witness which would tend to show her bias, prejudice and motive for testifying, the trial court must examine these letters in camera. If the letters do tend to show bias, they must be made available for cross-examination after the witness testifies. Texas Board of Pardons and Paroles v. Miller, 590 S.W. 2d 142, 145 (Tex. Crim. App. 1979).