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.