Criminal Justice Section
Criminal Justice Magazine
Volume 19 Number 2
Threats: Bolstering or Impeaching
By Stephen A. Saltzburg
Stephen A. Saltzburg, is the Wallace and Beverley University professor at the George Washington University School of Law in Washington DC. He is also a contributing editor to Criminal Justice magazine and a Section delegate to the ABA House of Delegates.
First question: Is evidence that a witness in a criminal case has been threatened admissible to bolster or attack credibility?
First answer: It depends.
Second question: On what?
Second answer: On exactly how the evidence is used. Does it actually answer some kind of attack on credibility or suggest some kind of bias that might cause credibility to be questioned? If so, it is admissible—otherwise it is not.
United States v. Thompson
United States v. Thompson, 359 F.3d 370 (7th Cir. 2004), illustrates the probative value of threat evidence to impeach a witness, and distinguishes an earlier case, United States v. Thomas, 86 F.3d 647 (7th Cir. 1996), which will be discussed later.
Michael Thompson and Kimberly Shinnamon were involved in a romantic relationship, during which the couple took a trip, traveling throughout southern Indiana in a rental car. After about a week, Thompson and Shinnamon quarreled, and Thompson drove off leaving Shinnamon behind. A day later, the police arrested Thompson on a prior warrant that was based on allegations that he had pointed a firearm at Shinnamon the previous month.
Although the opinion of the court of appeals is not clear about what led the police to Thompson, police records indicate that he was sitting in the back of an ambulance shortly after his arrest—perhaps following an accident—when he asked a detective for a drink of water and for his jacket that was in the rental car. The detective went to the car, saw a jacket, retrieved it, and checked the pockets where he found 12 live rounds of ammunition. Another detective assigned to the scene took custody of the bullets and performed an inventory search.
In a strange display of police work, this detective failed to seize the jacket, photograph it, or fingerprint it. Instead, she let the jacket remain in the rental car, which was returned to the rental agency. The detective also failed to mention the jacket in the inventory, and the jacket was unavailable at trial. Neither the detective who found it nor the detective who inventoried the contents of the rental car knew what happened to the jacket.
Police contacted Shinnamon shortly after the arrest, and she told them that the jacket and the bullets belonged to Thompson. She also permitted a detective to copy two answering machine messages she had received from Thompson after his arrest. One message included a request that Shinnamon get Thompson’s clothes, boots, and three jackets from the car rental agency, which she did, retrieving two of the defendant’s jackets, along with shoes and several jackets that she claimed belonged to her.
Without government objection, Thompson successfully moved in limine to exclude testimony or questioning about certain prior convictions and his status as a suspect in any uncharged crimes. At trial, Shinnamon testified for the defense, describing her travels with Thompson and acknowledging that she told the police that the jacket and bullets belonged to the defendant. But she repudiated her statement to the police and claimed that, in fact, the items were hers. She said she had lied because she was angry with Thompson and she thought her lie would get Thompson in trouble because of his criminal record.
The prosecution asked the trial judge to reconsider the in limine ruling and to permit cross-examination of Shinnamon about threats made by Thompson against her. The prosecution’s theory was that the trial testimony might have been the product of these threats and the defendant’s intimidation. The trial judge ruled the cross-examination permissible. Prosecutors then elicited from Shinnamon the fact that Thompson had pled guilty to a domestic battery incident in which Shinnamon had suffered a black eye. She also admitted that Thompson had pointed weapons at her and threatened her by phone after his arrest. When asked, however, whether “there could be repercussions for you if you don’t sing his line,” Shinnamon denied any fear. She admitted, though, that she had recently called the police after Thompson’s friends came to her house at 3 a.m.
Despite Shinnamon’s testimony, Thompson was convicted. He then complained on appeal that the questions allowed by the trial judge were impermissible, arguing that in order to be admissible, “evidence of threats [are required] to be directly and specifically linked to, and made because of the witness’s testimony and not because of a ‘general fear of the defendant.’ ” (Thompson, 359 F.3d at 475.)
The court of appeals found that the evidence of threats was admissible to challenge the credibility of a witness whose trial testimony is inconsistent with earlier statements made to the police. The court reasoned that the evidence was probative and important because the jury was called upon to decide whether to believe Shinnamon’s statements to the police or her testimony at trial. (It should be noted that this reasoning reflects what any real-life jury would do, but it misstates the law, in that prior statements to the police are not admissible in federal courts for their truth even when admittedly made. They are only admissible for impeachment.) (Compare Fed. R. Evid. 613 with Fed. R. Evid. 801(d)(1)(A). Thus, the jury technically was not entitled to decide whether to “believe” the prior statement, even though practically it could not avoid doing so.)
The court of appeals specifically noted that the defendant used his prior convictions affirmatively during direct examination to explain why Shinnamon might have lied to the police in order to challenge the credibility of her statements, and that it was fair for the defense to point out why her trial testimony might lack credibility.
United States v. Thomas
The Thompson court distinguished an earlier decision in United States v. Thomas, 86 F.3d 647 (7th Cir. 1996). Paris Thomas and Harold Story were convicted of offenses arising out of a cocaine-distribution operation. Cooperating witnesses for the government testified that they had received threats, although not from the defendants. The trial judge admitted the evidence, apparently persuaded by the government’s argument that witnesses who testify despite threats have increased credibility. The court of appeals held that this was an abuse of discretion, reasoning as follows:
Rather than explaining specific behavior relevant to the credibility of the threatened witnesses, the threat evidence in this case was admitted to permit the jury to fully evaluate the general “credibility” and “bias” of the threatened witnesses. We conclude that this decision was an abuse of the district court’s discretion under Rule 403. The district court did not make a finding that the threatened witnesses appeared intimidated, and the record does not reveal to us the demeanor of these witnesses. The government seems to imply that the threat evidence was probative because it enhanced the overall believability of the witnesses by showing that they testified against the defendants in the face of threats. The probative value of such evidence, however, is extremely limited at best. We fail to see any need for the introduction of threat evidence to “boost” the testimony of these witnesses. Furthermore, evidence of threats on witnesses can be highly prejudicial. Indeed, the Third Circuit has found that threats “constitute a striking example of evidence that appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case.” United States v. Guerrero, 803 F.2d 783, 785 (3d Cir. 1986) (internal quotations and citations omitted). Thus any probative value of the threat evidence was more than substantially outweighed by the danger of unfair prejudice, and the district court abused its discretion in concluding differently.
(Thomas, 86 F.3d at 654 (footnotes omitted).)
In one of the footnotes, the court pointed out that one government witness had virtually nothing to say other than that she was threatened.
In the final analysis, the court found that the abuse of discretion in Thomas was harmless error. There was overwhelming evidence against the defendants.
Thompson and Thomas together teach several lessons. The most important is that threat evidence is neither always admissible nor never admissible to impeach or corroborate a witness. Its probative value and prejudicial effect must be examined in light of the particular circumstances of each case and the theory of impeachment or bolstering upon which it relies.
A second lesson is that threats made by a defendant against a witness are likely to be admitted more readily on behalf of the government than threats made by third parties. Threats made by a defendant will almost always be probative of a possible bias when a threatened witness testifies for the defense. Threats made by a defendant may also be admissible when a witness testifies for the government as substantive evidence to prove consciousness of guilt.
Threats made by third parties that are not a defendant’s responsibilities may have some probative value when used by the government to bolster a witness’s credibility because witnesses who are threatened and still testify may seem particularly strong. But such evidence is often extremely prejudicial; the jury may wrongly assume that the defendant made the threats, or that associates of the defendant did so at the defendant’s behest. Moreover, law enforcement officers could make anonymous threats in the hope that, if admitted, such threats will be wrongly attributed to a defendant.
Finally, it appears clear that the admissibility of threat evidence boils down to balancing—i.e., the type of balancing that Federal Rule of Evidence 403 requires. Because Rule 403 requires for the purpose of exclusion that the danger of unfair prejudice substantially outweigh the probative value of the evidence, the presumption is in favor of the admissibility of evidence. Thomas is a reminder that the presumption may be more readily overcome when threat evidence is used to bolster a government witness than when threat evidence is used to impeach a defense witness, as in Thompson.