And No Religion Too?: 11th Circuit Find No Error in Testimony About Witness’s Job as Chaplain

Federal Rule of Evidence 610 provides that

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

Under Rule 610, a party can’t use evidence of a witness’s religion to bolster (e.g., “he’s a good Christian”) or impeach (e.g., “he’s a lying atheist) a witness’s credibility. In its recent opinion in United States v. Davis, 2015 WL 925544 (11th Cir. 2015), the Eleventh Circuit addressed the following question: “[D]oes Federal Rule of Evidence 610, which excludes evidence of a witness’s “religious beliefs or opinions…to attack or support the witness’s credibility,” bar evidence that a witness’s job is city and police-department chaplain, even when neither side argues that this affects credibility?”

In Davis, Jerry Thomas Davis was convicted of possessing an unregistered short-barreled shotgun in violation of 26 U.S.C. § 5861(d). Jady Pipes was the officer who saw Davis throw the shotgun out of his Pontiac Grand Am.

Mr. Pipes was a sworn officer who routinely performed some of the same duties as other Hanceville officers. But Mr. Pipes held the position of “chaplain,” not only with the police department but also with the city itself. Before trial, Mr. Davis moved to exclude testimony that Mr. Pipes was the “chaplain,” to bar the government from referring to Mr. Pipes as “chaplain,” and to prevent Mr. Pipes from appearing with these parts of his official uniform: a large, plainly visible cross on his hat and much smaller crosses on his badge and lapel.

Mr. Davis based his motion on Rule 610. Mr. Davis did not challenge the city’s decision to have a chaplain who wears a cross while serving as a law enforcement officer….

The court ruled that Mr. Pipes could testify to his title and that the government could refer to him that way. The court ruled that Mr. Pipes could not wear the large cross but could wear the other crosses, which were too small to be seen or recognized from the jury box.

After he was convicted, Davis appealed, claiming, inter alia, that the district court erred by denying his Rule 610 motion. In response, the Eleventh Circuit noted that Rule 610

excludes evidence only when two conditions are both satisfied. First, the evidence must be evidence of a witness’s “religious beliefs or opinions.” Second, the evidence must be offered “to attack or support the witness’s credibility.”

The court then found that these conditions had not been satisfied Instead,

The government offered no evidence of Mr. Pipes’s “religious beliefs or opinions.” In his argument to this court, Mr. Davis does not say—because on this record he cannot know—what religion Mr. Pipes adheres to. Mr. Davis does not discuss—because on this record he cannot know—Mr. Pipes’s religious beliefs. Nobody said a word to the jury, in testimony or in argument, about Mr. Pipes’s “religious beliefs or opinions.”

All that was proved was that Mr. Pipes held the position of chaplain.Most chaplains, though not necessarily all, believe in a deity and adhere to an organized religion. But Mr. Pipes did not say whether this was true for him. And if he does adhere to an organized religion, Mr. Pipes did not say which one, or what he believes. (To be sure, while on duty Mr. Pipes wore a cross, a symbol associated with some religions but not others. The jury did not, however, learn of the cross.)

As support for its holding, the Eleventh Circuit then cited several cases from around the country reaching similar conclusions:

Other cases are similar, showing that witnesses with religious positions have routinely disclosed their positions, apparently without objection or controversy. See United States v. Holloman, Nos. 99-4391, 99-4392, 238 F.3d 416, 2000 U.S.App. LEXIS 33952, at *1 (4th Cir. Dec.29, 2000) (“The sound quality was not good and a defense witness, a volunteer prison minister, testified that he did not recognize Holloman’s voice on the tapes.”); United States v. Pasillas-Gaytan, 192 F.3d 864, 866 (9th Cir.1999) (“A minister testified that she had filled out part of the naturalization application for Gaytan, and that his English was very limited.”); United States v. Jeffries, 854 F.2d 254, 256 (7th Cir.1988) (“A minister testified how the defendant had led a mission group to Canada.”);  United States v. Polsinelli, 649 F.2d 793, 794 (10th Cir.1981) (“Counsel for Polsinelli called three character witnesses, a Catholic priest, a long-time family friend, and Polsinelli’s 86-year-old grandmother.”); Payne v. United States, 546 F.Supp.2d 1312, 1322 n. 5 (M.D.Fla.2008); (“David Wine, himself a pastor, testified that he got involved in the Faith Promises Program through his church and its missionary program because he thought the program was ‘very spiritual’ and he wanted to pool resources and draw from those resources to use for missionary work (CR Dkt. 838 at 60-64).”).

-CM