Monday, May 11, 2009

Case o' The Week: Shutting the Door on "Opening the Door," Osazuwa and FRE 608 and 609

Judge Graber (left) explains a new Ninth Circuit rule on the use of specific acts of conduct to impeach, in a great case untangling the interplay of Federal Rules of Evidence 608 and 609. United States v. Osazuwa,__ F.3d __, No. 08-50244, 2009 WL 1232107 (9th Cir. May 7, 2009), decision available here.

Decision by Judge Graber, joined by Judges Pregerson and Wardlaw. Admirable win by CD Cal. AFPD Elizabeth Newman.

Facts: Osazuwa was tried on charges of assaulting a prison guard while serving a sentence for failing to pay restitution for bank fraud (his original bank fraud sentence had been one day custody). Id. at *1. Osazuwa’s testimony conflicted with that of the guard at trial. Id. at *1-*2.

Over defense objection the government crossed the defendant on the specific details of the previous bank fraud conviction, seeking concessions of various lies made during that crime. Id. at *2-*3. The district court permitted this cross, holding that Osazuwa had “opened the door” to this inquiry by (truthfully) stating he had served only one day for this bank fraud crime. Id. at *3. Under this “open door” theory, the court held, specific acts of untruthfulness otherwise barred under FRE 609 were admissible. Id.

Moreover, the court also held that the specific acts of untruthfulness were admissible under FRE 608. Id. The court gave a limiting instruction; the line of inquiry was not mentioned in the government’s closing. Id.

Issue(s): 1. FRE 608: “Defendant first argues that the district court erred in holding that the admission of the facts underlying his bank fraud conviction was warranted under Rule 608 . . . The crux of Defendant’s argument is that Rule 608 applies only to specific instances of conduct that were not the basis of a criminal conviction. Evidence relating to a conviction, he argues, his treated solely under Rule 609.” Id. at *4.

2. FRE 609: “The next question is whether the impeachment evidence was properly admitted under Rule 609 . . ." Id. at *6. “The government does not argue in this case that its cross-examination of Defendant stayed within the established bounds of inquiry under Rule 609. It instead asserts that Defendant ‘opened the door’ to questions about his specific dishonest acts because his testimony about serving only one day in prison minimized the seriousness of his bank fraud conviction.” Id. at *6.

Held: 1. FRE 608: “[W]e hold that Rule 608(b) permits impeachment only by specific acts that have not resulted in a criminal conviction. Evidence relating to impeachment by way of criminal conviction is treated exclusively under Rule 609 . . . .Id. at *5.

2. FRE 609: “Defendant did not testify about the underlying facts of, or create a false impression about, his conviction; he truthfully answered the question asked . . . [T]hat answer was insufficient to open the door to questions about the details of the offense.” Id. at *7. “[W]e hold that the district court abused its discretion in admitting evidence of the acts underlying Defendant’s conviction for bank fraud and that the error was not harmless.” Id. at *8.

Of Note: This important evidence case clarifies the use of specific conduct to impeach and the inter-relationships of FRE 608 (limiting impeachment by specific acts) and 609 (impeachment by prior convictions.) Judge Graber’s new rule – consistent with other circuits – is that if a specific act of untruthfulness lead to a conviction, that impeachment falls within FRE 609 (with all of its limitations). The government can’t back-door the use of a specific act otherwise barred by FRE 609, by trying to sneak the impeachment under FRE 608. Good stuff.

How to Use: Osazuwa is a must-read to prep a client who is going to testify, to warn of the dangers of the “open door.” Id. at *6-*7. Judge Graber explains the “open door” theory in detail, and distinguishes between a defendant’s statements to do – and don’t – “open the door” to impeachment by specific acts of untruthful conduct. Id. at *7.

For Further Reading: Quick: which Rule permits admitting otherwise improper evidence after a witness has “opened the door?” This is a trick question – even our Chief Judge is “aware of no authority for admitting inadmissible evidence just because we think turnabout is fair play.” United States v. Wales, 977 F.2d 1323, 1328-29 (9th Cir. 1992) (Kozinski, J., concurring in part.) Wales is Judge Kozinski’s fascinating and compelling attack on the “open the door” theory of evidence. He’s right: it’s a fuzzy theory, not in the rules, that is hard to apply in practice.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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