Trial Court Can’t Stop Lawyers from Asking Witnesses if they Lie
State v. Locken
(ICA November 28, 2014)
Background. Andrew Locken was charged with assault in
the second degree against Larsen Kaneda and assault in the third degree against
Karinne Wong, Kaneda’s girlfriend. Locken lived with two brothers: Konrad and
Hans Bruesehoff. The Bruesehoffs lived with Kaneda. This group and some others
went out to Dave & Buster’s for about two hours. Outside D&B, Locken
got into an argument with a “local guy” that escalated to a challenge to fight.
Wong intervened and the group drove home. From there, the testimonies are
dramatically different.
Kaneda and Wong testified for the prosecution. Their version
was that once back at the Bruesehoff house, Wong asked Locken why he’d want to
start a fight when Hans was disabled (he had a pacemaker and artificial discs
in his back). Wong testified that less than six months before that night, Locken
was in a similar incident in which Locken wanted to fight a “local guy” that
had “falsecracked” Konrad. On that night, Wong asked if Locken would pick his
pride over other people’s safety. Locken said he’d pick his pride and got
aggressive with them. He challenged Hans to a fight. Locken was restrained by
others there, but called out to Hans.
As Wong tired to calm Locken down, Locken grabbed Wong’s
hair and kicked her in the thigh. Kaneda intervened and Locken started kicking
him. He landed about three kicks on Kaneda. Eventually others intervened and
Locken was subdued.
The defense called two witnesses who were there. They said
that Wong and Hans were acting drunk and that Wong was pestering Locken. She
was yelling hysterically at him and Locken told her to mind her own business.
That was when Wong lunged at Locken and tried to scratch or strike him. Kaneda
attempted to pull Wong away and Konrad pushed at Locken. Locken did not grab
Wong and didn’t kick or strike Wong or Kaneda.
During the trial, Locken’s counsel attempted to
cross-examine Kaneda about his statements to the examining doctor. During that
cross-examination, Locken asked if Kaneda lied to the doctor. The prosecution objected
on the grounds that it was argumentative and the objection was sustained. After
a few more objections were sustained, Locken moved for a mistrial. During a
bench conference, the circuit court explained that it believed that asking a
witness if he or she was lying called for a legal conclusion of some kind that
only the jury could determine. The circuit court later ruled that Locken could
not ask any witnesses if they lied. The judge (Judge Ahn) said that such
questioning was prohibited and “is just not done.”
The jury found Locken guilty of the lesser-included assault
in the third degree against Kaneda and guilty as charged for Wong. The circuit
court sentenced him to probation for a year. Locken appealed.
“Falsecracked” Konrad. Locken argued that Wong should have
never been permitted to testify about the incident in which Locken wanted to
fight a “local guy” that “falsecracked” Konrad. The ICA disagreed.
Evidence of prior bad acts are not admissible to show the
character of a person, but may “be admissible where such evidence is probative
of another fact that is of consequence to the determination of the action, such
as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, modus operandi, or absence of mistake or accident.” HRE Rule 404(b).
This list is not exhaustive. State v.
Clark, 83 Hawaii 289, 300, 926 P.2d 194, 205 (1996). According to the ICA,
the prior bad act was not to show a propensity, but rather to explain why Wong
asked Locken about choosing between his pride and other people’s safety. It was
“relevant to showing the context for the questions directed at Locken by Wong
and Locken’s reaction to those comments.” The ICA held that it also showed why
Wong questioned Locken in the first place. That was enough for the ICA to hold
that the prior bad act was relevant and admissible under HRE Rule 404(b).
Witnesses Know when they’re
Lying. The ICA did,
however, hold that the circuit court erred in ruling that the defense could not
ask a witness if he was lying. Such a question—you lied to so-and-so or “weren’t
you lying just now?”—must be distinguished from asking them to comment on other
witnesses’ veracity. See State v. Maluia,
107 Hawaii 20, 25, 108 P.3d 974, 979 (2005). Asking a witness if he is lying is
different than asking them to comment on the veracity of another witness.
Whether a witness was lying goes directly to the witness’s credibility and prohibiting
the defense from asking such questions is erroneous.
However, because Locken was able to show that Kaneda’s
statements to the police were inconsistent with his trial testimony, the ICA
held that he had sufficiently attacked Kaneda’s credibility and that the
circuit court’s erroneous ruling was not harmless.
Comments