I was reading The Art of Cross Examination, a book I highly recommend, that you can order from Amazon for around $11.00. The book recounts several examples of effective cross examination of a witness by going completely outside the case, and the facts of the case, to discredit the witness in the eyes of the jury. In one real example, defense counsel had done an investigation into the background of the government’s key witness, an inspector, in a criminal trial for attempted bribery of a government official (the witness). The witness on direct seemed very credible and since he was the only witness to the attempted bribe. What defense counsel had done was an investigation into the inspector’s application with the government for employment. What was learned was that the application was signed under penalty of perjury and that the government employee had perjured himself in some major ways on the application. The government’s case fell apart after it was brought to light that their key witness had perjured himself on his application for employment and an acquittal was won for the defendant. For the other examples, you’ll have to read the book.

Rule of Evidence 404(b) reads:

Rule 404.Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

A friend of mine got a ticket from a police officer that was a total fabrication; in short the officer was lying about the charge. She did a little investigation on him and discovered that he had been complained about five different times for fabricating charges.

I had seen prosecutors in court calling out what seemed to be the magic number. During the plea agreement stage in court, they’d call out, “Judge, we have 404(b) evidence on this defendant.” Apparently, this was the judge’s clue to not be as lenient with what plea bargain he would accept; or, since sentencing was within his providence, to impose a heavier sentence. I had been thinking about this and had concluded a rule of evidence is neutral; it applies as much to the prosecution as it does to the defendant. I suggested to my friend that she turn the tables on the prosecution at her arraignment by bringing to light her 404(b) evidence against her accuser’s chief witness. She did exactly that in court offering to prove her accusation. The judge promptly dismissed her case! Needless to say, many of the people in court that day were there on tickets issued by that same officer. They gathered around her asking for a copy of her evidence because they wanted to do the same thing. This particular officer had been completely discredited in the eyes of the court. His superiors would be wise to take him off the street.

I’m aware of two incidents in which a tremendous amount of 404(b) evidence became available on a multitude of officers.

In one, the government set up a sting in order to execute warrants on wanted people. They sent an offer to a friend in the mail offering to let him pick up a brand new pair of Nikes for merely stopping by the new shoe store the police had set up. Also, he could register to win a Harley Davidson motorcycle while he was there. My friend immediately spotted the sting in the offing. He got his brother and a friend to arrive at the shoe store armed with a concealed tape recorder and the letter. The numerous police officers on hand promptly arrested both of them and when they discovered that they had arrested the wrong people they charged them with criminal impersonation; a felony. Each of the officers’ present, signed affidavits that they heard these two identify themselves in the wanted friend’s name. The hidden recorder caught everything that was said and revealed that neither had identified themselves as my wanted friend. In addition, the police had a video camera running that caught everything that was said as well. It also revealed that what the police officers claimed in their affidavits were lies. This evidence was presented to the District Attorney. When he discovered that his chief witnesses had perjured themselves the charges were promptly dismissed on his motion.

In the second incident, an acquaintance who owns a bar had a fight in his bar. The police were called. By the time they got there the disturbance was pretty much quelled. However, the police proceeded to charge the bar owner with causing the disturbance and whatever charges they could come up with that were related to that. In support of the charges the numerous officers at the bar filled out and signed affidavits that were full of lies. What they had overlooked was that my acquaintance had video taped the entire incident! The video tape was taken to the District Attorney and once he saw that his witnesses had perjured themselves he motioned the court to dismiss the charges.

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