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Impeachment with Evidence of Bias

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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.

5 comments on “Impeachment with Evidence of Bias

  1. What is it called when the lawyer (George Laughrun) had no file or did not investigate his own clients witnesses, knew that statements were withheld from discovery that had reasonable doubt on them?
    Knew that the State hwy Patrol said they only had (oral) statement from the one that drugged and beat my son.
    The civil team after my son was sent to prison (subpenaed all papers).
    The statement that was withheld out of the original discovery was the same day the State hwy patrol spoke with this person Jeremy Parinello.
    Jeremy stated in his written statement that people think he drugged Brock.
    He did…….
    But for the hwy patrol to state on their paper they only had ORAL only.
    How can they get away with things like this.
    The judges never read or looked at it.
    Another example , the ALE and State hwy patrol said they could not get up with this other witness.
    But the written statement showed up in the civil.
    The civil lawyers saw all the lies.
    The state hwy patrol , the ADA , and Brock’s own lawyer (George Laughrun) stated under oath that Brock had Xanax in his system.
    But when we get the papers six to eight months later it says Versed.
    Two different drugs.
    How can they get away with purgery.
    I’ll tell you how, the ADA said they mispronounced it.
    The state hwy patrol in court had to say wait a minute. He went to his paper and read off Alprazolam.
    They needed my child as a political pawn, an example for community.
    They gave my son 2nd degree murder. 12=15 years.
    How is or was this fair almost eight years ago when after they had my son on tv making a mochary out of his for over 6 months.
    Funny thing is Laughrun never knew where Brock’s blood was.
    This was also the time the SBI was in trouble for working for the prosecutors.
    Supposedly cleaned house.
    Do you know, now they give involuntary manslaughter.
    That is what it should have been for my son. Brock Franklin never intended to go out to hurt anyone, maliciously, wantonly, intentionally.
    I do not understand how they can send a kid to prison, that had to be resuscitated 2x, incubated to breath, flown to the hospital with fluid and blood on the brain. Bolt in his head to drain.
    But the ADA pushed to have him released from the hospital and as soon as he was out he went straight to jail, and then straight to prison.
    George Laughrun must have owed the ADA a favor. He never once tried to defend Brock.
    Another lawyer did a MAR , to bring the charges down.
    Three judges were involved.
    Three different days.
    The judge that denied , said just stay, I have already made up my mind that this is a personal issue.
    Well duh…… Denied…
    People that slash throats, and shoot others get less that what my son did.
    He went to prison with no medical followups which he missed plenty.
    The justice system is so corrupt . This was in Charlotte, North Carolina.
    I will never trust the justice system , or lawyer again.
    one more thing, my son with TBI, Laughrun took him in a room with the ADA, the state hwy patrol and the ALE 2 months after this horrendous accident.
    They put words in his mouth in the interrogation.
    They said Brock said he drank ll beers,. Brock was at the party no more than one hour.
    Anyone ever look at the BAC chart I did. 150 lbs. 1=2 hrs. it is off the chart.
    The media even quoted this ridiculous lie.
    The SBI in my opinion wrote on a piece of paper what the ADA and Laughrun, and the rest wanted them to write.
    They never could find Brocks blood.
    Bias, oh yeah , Bias, corrupt , etc. and may I add Idiots.

  2. Good post. I’m chiming in to add that several cases allow defense counsel to cross-examine witnesses about charges that were pending at the time they cooperated with the police or State, which is slightly different than asking the witness about charges being held in abeyance by the State until after the witness testifies. See State v. McRae, 139 N.C. App. 387, 393 (2000).

    For example, if a co-defendant B turns and implicates co-defendant A, and then has a series of charges dismissed by the State from the time of his implication of co-defendant A to his in-court testimony, co-defendant B can be cross-examined about the dismissals he reaped along the way (as long as the foundation is layed that he was still “cooperating” with the police or the State when the dismissals were entered).

  3. I would like to ask you a question.
    Why would a lawyer take his own client to an interrogation room filled with the ADA , the State Hwy Patrol, the ALE to question?
    This is what happened to my 18 year old son.
    My 18 year old son, was air lifted to the hospital. resuscitated 2x’.
    He had gone the wrong way on the interstate.
    He was on the far inside shoulder going the speed of 31mph.
    They said he hit a couple head on. It was passenger to passenger side.
    His jeep was lifted and he went air borne and landed on the nose of his vehicle, the whole axle came off.
    My son was in a coma for four days.
    He lay there with a bolt in his head draining blood and fluid of his brain.. He had a frontal lobe traumatic brain injury.
    this lawyer said he would take care of my son.
    We Never signed a contract.
    The hospital was pressured into letting my son out of the hospital with no rehab or followups by the ADA and the media. In fact the media stated in the news he was sitting in the hospital twiddling his thumbs.
    To shorten this story up, the main concern I have learned was the lawyer took my son to a room early in the morning still reeling from a TBI, from a Jail cell.
    The ADA , the State Hwy Patrol, the ALE and Brock’s own lawyer layed into Brock, asking questions.
    Basically putting things into his head to say, because that is what you could do at the time. Brock did not know what he was saying, he still to this day does not remember the meeting.
    That has been 8 years now.
    They gave my son 2nd degree murder, 12=15 years plus 5 years probation. The 5 years probation was added on at the courtroom when Brock’s lawyer went to the judge and and added that.
    It was like this lawyer was working for the prosecutor.
    There was evidence that my son was fought and drugged at a party he went to.
    The state hwy patrol on their write stated in capital letters ORAL statement only from the person we know drugged him.
    That was not true. There was a written statement on that very same day;
    The way I learned this was after the fact, the civil attorneys subpoenaed all of the original discovery.
    There were other statements , one that said they could not get up with this person, but there was a written statement that Brock was not acting drunk but like he was on something.
    BRock did not do drugs. He tested negative for pot.
    The SBI before their scandal, took 8 months to do a drug test.
    came back with versed. versed is a half life drug a sedative that does not stay in the body long. found this out after the fact.
    But in the courtroom was verified under oath by State hwy patrol, the ADA, and Brock’s own lawyer it was Xanax.
    I have gone rounds with this lawyer , the State Hwy Patrol, and that I wanted the papers they read that he had Xanax.
    The ADA said it was mispronounced.
    They also said Brock said in the interrogation room that he had ll high potency beers within an hour. His BAC came bac in 6 months with a .12
    I looked on the BAC chart and at 150 lbs 2 hours ll high potency is off the chart. I just do not understand how this was okay for them to say this or do what they did to him. BTW the transcript for the interrogation was suppose to be 160 pages, 3 hours long. They cut that in half when I received it after my son was sent to prison. 51 pages 1 1/2 hrs.
    The other hour he was going picking up people that had no way to the party.
    YOu see they used my son as ride , and the ADA use my son as an example for a high society community.
    They never investigated the drugging. they knew about it. why else would they withhold the statements.
    You can find the stories on the internet about my son Brock Franklin in Charlotte North Carolina.
    If you are interested .
    No one seems to want to help.
    Brock had no intentions of going out and hurting someone or killing someone with malice, intent, wantonly.
    It was involuntary.
    I believe there were some corruption in this case.
    Please if you ever have the time to look into this case and study it , it would be nice.
    I’m just wanting someone to see the inconsistency in this case.
    They used Brock as an example and political pawn in many eyes.
    Some officers themselves said he was a victim of circumstance.
    I do not think it was right . What about you?
    Thank you in advance if you decide to look deep into this.
    It would be greatly appreciated.
    I have done all I can do, the courts seem to just go along for the ride.
    I have lost total faith in Charlotte and their justice system.

    Sincerely, Robin Franklin

  4. Always wondered how defense in O.J. Simpson case got in all the extrinsic evidence about Mark Furhman using racial slurs during the past. I assume they asked him about it on cross and when he denied it, they brought in extrinsic evidence?

  5. Well in 1987 I was convicted of a misdemeanor charge however prior to the conviction it was stated by the presiding judge Stanley Peele that he was friends with a family member of the plaintiff the grandfather family member has his name on the clock tower at the university my counsel was a volunteer attorney with the UNC legal clinic. When Judge Peel stated in open court that he was friends with the grandfather of the plaintiff he said he did not think it was a conflict of interest the district attorney Carl Fox agreed. Let me explain what happened after I made complete compliance with the court. The case was left open for 18 years I was unable to expunge it due to the conviction of no contest however there was established bias prior to conviction which can allow the matter to become expunged since the offense occurred in Chapel Hill I have been on the phone trying to find counsel the way to open up this matter for expunge is to basically make issue of the fact there was bias with the presiding judge and district attorney prosecuting the case. The district attorney is now a superior court judge and the judge has written a book of how to not to judge so I have a loophole of established bias with the presiding judge Stanley Peele and the District Attorney a case which was complied with was intentionally left open in order to prevent inquiry or expungment and I require an expungment can you help me.

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