State’s Witness: Eastern District of Michigan Finds No Problem With Limiting Impeachment of Key State Witness

Similar to its federal counterpart, Michigan Rule of Evidence 608(b) provides that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

Rule 608(b) contains what is known as the “collateral evidence” rule. If a party has a good faith reason to believe that a witness has committed an act of dishonesty unrelated to the trial at hand, the party cannot prove that act through extrinsic evidence. The party, can, however, ask the witness about the act during cross-examination. Given this, I strongly disagree with the recent opinion of the United States District Court for the Eastern District of Michigan in Landers v. Romanowski, 2014 WL 7369914 (E.D.Mich. 2014).

In Romanowski, Ken Romanowski was convicted of murder, conspiracy to commit first-degree murder, and possession of a firearm during the commission of a felony. The main witness for the prosecution was one of Romanowski’s alleged co-conspirators, Ronney Johnson. 

Johnson explained at trial that, initially, he did not tell the police about the shootings. However, after his arrest on the weapons charge, he implicated [Romanowski] in the murders because he wanted protection for his family and because he thought that [his co-conspirators] had mistreated him. He provided the police with information about the shootings before he was promised leniency for his cooperation, but he did not tell the complete truth because [Romanowski and the other co-conspirators] were not in custody at the time, and he feared them.

In other words, Johnson wasn’t the most reliable witness, and

the trial court permitted inquiry into relevant matters affecting Johnson’s credibility, allowing defense counsel to elicit testimony that Johnson repeatedly lied, sold drugs, and spent time in prison, and that he earned enough money to support his family, purchase luxury items, and drive a BMW, even though he did not report any income.

That said, the trial court precluded Romanowski from inquiring into other unrelated acts of dishonesty allegedly committed by Johnson. After he was convicted and exhausted his state appeals, Romanowski brought a habeas petition under 28 U.S.C. § 2254, claiming, inter alia, that this limitation of his cross-examination violated his right to Confrontation. Specifically, he claimed that his

defense attorneys were not permitted to inquire about (1) the karat weight of a necklace Johnson was wearing in a photograph which was shown to him, (2) the financing of a car he sold to [Romanowski] (3) an automobile inspection report and insurance payment form used in the purchase of the car, (4) Johnson’s jewelry, gold, and diamonds, and (5) his failure to file a federal income tax return.

In turn,

The trial court ruled that the karat weight of Johnson’s necklace pertained to a collateral matter and was irrelevant…; that the allegedly fraudulent financing agreement was a “bad act,” which could not be used for impeachment purposes…; that the automobile inspection report and insurance payment form also were inadmissible because they were “bad acts,” which did not result in a conviction…; and that the jewelry, gold, and diamonds and the failure to file a federal income tax form were not relevant issues.

The Eastern District of Michigan found no problem with these rulings, concluding that 

The jury had more than enough information to assess Johnson’s credibility. Consequently, petitioner’s right of confrontation was not violated by the minor restrictions placed on the defense attorneys’ cross-examination of Johnson.

Let’s start with the reasoning of the trial court. It precluded cross-examination into certain acts because they were “collateral.” I don’t understand this because the entire purpose of Rule 608(b) is to allow a party to inquire into collateral acts of dishonesty; those acts simply can’t be proven through extrinsic evidence.

The court precluded inquiry into other “bad acts” because they did not result in conviction. Again, that’s the point of Rule 608(b). Federal Rule of Evidence 609 and state counterparts allow parties to introduce evidence of prior “bad acts,” including acts of dishonesty, that resulted in convictions. Rule 608(b) allows inquiry into prior “bad acts” of dishonesty that did not result in conviction. That’s the entire purpose of the rule.

Finally, the court found other acts such as failure to file a tax return to be irrelevant. Huh? How was Johnson’s alleged failure to file tax returns not probative of his credibility? Consider the following language from Leleniewski v. Amerisure Co., 2012 WL 1193258 (Mich.App. 2012):

Plaintiff first argues that the evidence of…her failure to file income tax returns was unduly prejudicial. We disagree…[T]he income tax evidence was probative of plaintiff’s credibility. “The credibility of a witness is an appropriate subject for the jury’s consideration.” Powell v. St. John Hosp., 241 Mich.App 64, 72; 614 NW2d 666 (2000); see also MRE 608(b)(1).

I don’t see how the failure of the key witness for the prosecution to file tax returns is in any way irrelevant. 

The Eastern District of Michigan didn’t even really dispute any of this. Instead, its conclusion was basically that the jury still had enough information to assess Johnson’s credibility. I don’t know if I agree. These were five additional dishonest acts allegedly committed by the key witness for the prosecution. Maybe the court is right that this wasn’t enough to grant a habeas petition, but I think the court was a little to dismissive of some important evidentiary rulings.

-CM