Crime, White-Collar Crime

Why Johnny Can’t Talk: Federal Rule of Evidence 608(b) and the Difficulty of Trial

Criminal defense lawyers who practice in federal court bemoan the lack of jury trials these days.

According to the administrative office of the U.S. courts, in the twelve months ended March 31, 2013, in our federal courts, 83,614 people entered a plea of guilty. Only 1,953 went to a jury trial (there were 173 bench trials too, for what it’s worth).

So, around 2 percent of the folks who are charged in federal court go to trial — the rest plead guilty.

The numbers in white-collar cases are a little better. For fraud cases there were 9,925 guilty pleas and 411 jury trials — so about 4 percent of people accused of fraud opt to see a jury. For regulatory offenses there were 1,480 pleas and 47 jury trials — about 3 percent.

There are a lot of reasons why so many people plead guilty and so few go to trial. One reason is that the acquittal rate is low — about 13 percent overall (there were 260 acquittals overall in FY 2013). For what it’s worth, while fraud acquittals were in line with that, regulatory offenses had an acquittal rate that was much higher — 20 acquittals (counting bench and jury trials) out of 55 trials. That’s about 35 percent.

Another big reason is that people accused of a crime are meaningfully prevented from testifying — and if a trial turns on what a person knew, as many white-collar cases do, their ability to put on a defense is compromised by their inability to testify. They can see a bad verdict coming….

In Flash Boys (affiliate link), Michael Lewis tells the story of Sergey Aleynikov, a Russian computer programer who worked at Goldman Sachs. When he was accused by the federal government of stealing tweaked open source code from Goldman (in the only criminal case involving Goldman Sachs since the market crash, Lewis notes), he opted not to testify at trial — because he has a thick accent, tends to speak in precise computer code, and generally is not good at explaining himself to an ordinary juror.

That’s relatively benign (except for the part where it looks like Aleynikov had a viable defense if it could be properly explained and is now would be serving 8 years in prison — his conviction was overturned on appeal). There will always be people who are not articulate. Those people become computer programmers instead of lawyers, and when they come into our turf they tend to fare less well. It’s tragic, but c’est la guerre.

There is, though, a structural reason why many people aren’t able to testify at their own trial — Federal Rule of Evidence 608(b).

Federal Rule of Evidence 608(b) looks benign enough. It says (in relevant part):

(b) Specific Instances of Conduct. [T]he court may, on cross-examination, allow [specific instances of a witness’s conduct] to be inquired into if they are probative of the character for truthfulness or untruthfulness of… the witness…

If a person accused is “the witness”, what this means is that the government will argue that it can ask the person accused about any prior conduct that reflects on the witness’s character for untruthfulness.

And, to make things worse — many AUSAs take the position that they aren’t obligated to disclose documents related to whatever the cross would be, because they are only using the documents in cross, and not in the government’s case in chief.

So the person accused of a crime gets sandbagged on the stand about an allegedly dodgy thing that happened years ago, which his lawyer hasn’t had a chance to review or challenge, and that the jury wouldn’t hear about if the person hadn’t testified.

Let’s see this in action. I previously wrote about United States v. Abair — a Seventh Circuit opinion in a smurfing case.

There, the sole question at trial was whether the woman accused of structuring financial transactions — Abair — engaged in making bank deposits in a certain way in order to avoid financial reporting requirements. She took the stand to explain why she did what she did.

Here’s how the Seventh Circuit describes what happened next:

In cross-examining Abair, the prosecutor sought to ask about her 2008 joint income tax return and the Free Application for Federal Student Aid (“FAFSA”) forms she filed while attending nursing school. Her attorney objected…. In a sidebar conference, the prosecutor said he believed Abair misrepresented her business expenses on the tax return and lied on her student aid applications about her business income and her assets. He intended to ask about the filings to attack Abair’s truthfulness under Federal Rule of Evidence 608(b)…. Abair’s ex-husband had testified that he was the one who filled out the disputed expense information on their joint tax return, and the online FAFSA allowed Abair to skip questions about assets. The judge ruled that the filings were probative of Abair’s truthfulness under Rule 608(b)

Get that? She didn’t fill out the forms, and they were used to attack her on cross. She wasn’t required to fill in that part of the form, but the government got to imply that she did something shady by not filling it in.

Here’s the start (it’s long) of the Seventh Circuit’s description of the government’s cross:

“Isn’t it true that you helped make prior statements — false statements — in submissions that related to financial matters; both on your tax returns and on your financial aid applications, you made false statements?” Abair denied this, but the questioning continued. Didn’t the FAFSA form ask her to state her assets? No, not exactly. Didn’t she recall being asked about her assets? No, the computer let her skip that part.

Thankfully, the Seventh Circuit reversed Abair’s conviction because of the government’s cross, finding that “[i]n this case, there simply was no reason — at least, none that the government has offered — to believe the filings had any material bearing on Abair’s truthfulness.”

But in courts around the country, 608(b) keeps people off the stand.

Federal Rule of Evidence 608(b)
U.S. District Courts—Criminal Defendants Disposed of, by Type of Disposition and Offense [U.S. Courts]

Earlier: Shouldn’t Somebody Be Suing Goldman Sachs Right Now?
Inspector Javert Goes Smurfing In Indiana

(hidden for your protection)

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