Impeachment with Evidence of Bias

I previously posted (here) about impeaching a witness with a prior inconsistent statement. In this blog post I’ll address impeaching with evidence of bias. As our blog readers know, a witness may be impeached with evidence that he or she is biased because of, for example, affection for or dislike of a party or self-interest in the case. The case law is filled with examples. See, e.g., State v. Perkins, 345 N.C. 254, 280-82 (1997) (proper to cross-examine a defense forensic psychologist about whether he was biased against the State); State v. Wilson, 335 N.C. 220, 226 (1993) (proper for the prosecutor to ask whether the defendant had paid the witness to testify); State v. Bullock, 154 N.C. App. 234, 240-41 (2002) (proper to cross-examine a defense witness about whether she previously had an altercation with the victim); State v. Clark, 128 N.C. App. 722, 725-26 (1998) (new trial; the trial court excluded testimony of a defense witness, Mary, who would have testified in part that a State’s witness, Leowana, told her that Leowana’s family was attempting to frame the defendant); State v. Frazier, 121 N.C. App. 1, 14 (1995) (prosecutor properly asked a defense witness if she would “do anything” to get a not guilty verdict).

With other impeachment methods, figuring out whether extrinsic evidence may be used can be tricky. Not so with bias. The rule is simple: Extrinsic evidence may be used to impeach regarding bias. Robert P. Mosteller et al., North Carolina Evidentiary Foundations 6-35 (2nd ed. 2006); see, e.g., State v. Whitley, 311 N.C. 656, 663 (1984) (dicta); State v. Lytch, 142 N.C. App. 576, 586 (2001) (proper to use extrinsic evidence to show defense witness’s bias), aff’d, 355 N.C. 270 (2002) (per curiam); State v. Rankins, 133 N.C. App. 607, 610 (1999) (reversible error to preclude the defendant’s witness who would testify that the defendant’s accomplice, a prosecution witness, said he had made a deal with the State). However, before offering extrinsic evidence of bias, a party must, on cross-examination, bring the impeaching evidence to the attention of the witness. Evidentiary Foundations at 6-35; Whitley, 311 N.C. at 663. If the witness admits the relevant facts, the judge may exercise his or her discretion under Rule 403 to exclude or limit the use of extrinsic evidence. Evidentiary Foundations at 6-35. However, if the witness denies the impeaching facts, the opponent may impeach with extrinsic evidence. Id.

When a State’s witness has pending charges this line of impeachment can be a goldmine. The defendant may be able to impeach with evidence that the witness has discussed, has been offered, or has accepted a deal with the State for a reduction of charges, reduced punishment, etc. in exchange for his or her testimony. This is a proper basis for impeachment and the defendant should not be limited in exploring it. State v. Rankins, 133 N.C. App. 607, 610-11 (1999) (reversible error to so limit the defendant). This rule applies to any State’s witness, and denial of the right to impeach on these grounds implicates constitutional confrontation rights. State v. Prevatte, 346 N.C. 162, 163 (1997) (following Davis v. Alaska, 415 U.S. 308 (1974), and ordering a new trial where the State’s principal witness was under indictment and the court refused to allow the defense to cross-examine the witness about the charges and whether he had been promised or expected anything in exchange for his testimony); State v. Hoffman, 349 N.C. 167, 179-81 (1998) (following Davis and holding that the defendant should have been allowed to cross-examine the State’s witness about his pending criminal charges; noting the constitutional dimension of this error but concluding that it was harmless beyond a reasonable doubt).

Lawyers often try to impeach the other side’s experts with evidence of bias. One common tactic is to ask the expert about compensation for his or her testimony. This is permissible, State v. Lawrence, 352 N.C. 1, 22 (2000); State v. Atkins, 349 N.C. 62, 83 (1998), even if the expert is court appointed and paid with state funds. Lawrence, 352 N.C. at 22-23. However, a party may not abuse, insult, or degrade an expert or attempt to distort the expert’s testimony under the guise of impeachment. State v. Sanderson, 336 N.C. 1, 11-15 (1994) (such conduct constituted prejudicial error). It is proper to impeach an expert with the fact that his or her license has been revoked, State v. Page, 346 N.C. 689, 697-98 (1997), and by probing the basis of the expert’s opinion. State v. Morganherring, 350 N.C. 701, 729 (1999) (prosecutor properly cross-examined the defendant’s expert about his familiarity with the sources upon which he based his opinion); State v. Gregory, 340 N.C. 365, 409-10 (1995) (prosecutor properly questioned a defense expert about his reasons discounting accomplices’ statements that were inconsistent with the defendant’s statement where expert had previously stated that when performing a psychiatric evaluation “you rely on as many records as you can get”). Such impeachment however is not without limitation. See, e.g., State v. Lovin, 339 N.C. 695, 713-714 (1995) (error to allow the State to cross-examine defendant’s mental health expert by reading portions of an article that denigrated clinical psychologists; the witness had not read the article and there was no showing of its validity).

In terms of trial practice, there are several criminal pattern jury instructions on point including:

  • N.C.P.I. Crim—104.20 (testimony of interested witness);
  • N.C.P.I Crim—104.21 (testimony of witness with immunity or quasi-immunity); and
  • N.C.P.I Crim—104.30 (informer or undercover agent).

Upon request and in appropriate circumstances the trial judge should give these instructions.

For other impeachment techniques, such as evidence of a prior conviction and character for untruthfulness, see my judges’ bench book chapters here and here.