Testifying Police Officers Can be Confronted with Instances of Untruthfulness in Older Cases
State v. Su (HSC June 23, 2020)
Background. Samuel Joo Su was charged with operating a vehicle while under the influence of an intoxicant. HPD Officer Jared Spiker was the key witness for the prosecution at trial. Prior to trial Su filed a notice of intent to present impeachment evidence against Officer Spiker. Su wanted to use extrinsic evidence that in three other cases, Officer Spiker submitted false evidence.
The first case involved a hearing in the Administrative Driver’s License Revocation Office (ADLRO). Su included a transcript showing that Officer Spiker admitted to submitting statements that he knew were not true.
In the second case, Su requested judicial notice of the records and files in another OUI case. There, Su wanted to use testimony from Officer Spiker about how the defendant was driving on the wrong side of the road, but in light of other evidence, the district court in that case found that Officer Spiker’s testimony made no “physical sense” and acquitted the defendant.
The third case was a prosecution for harassment. There, Su again asked judicial notice of the record of that trial. Officer Spiker’s report described a brawl in the lobby of the Ala Moana Hotel. The details in his report, however, were contradicted by video evidence.
The prosecution opposed admission of the proffered evidence. The prosecution argued that the evidence of untruthfulness was minimal and that Officer Spiker was only human.
The district court, presided by the Hon. Judge Trish Morikawa, reserved questions of admissibility until the bench trial. At the trial, the prosecution presented evidence that the police pulled Su over for driving in an “S” pattern on the roadway. Once pulled over, the officer could smell booze and saw that Su’s eyes were red, watery, and glassy. Then Officer Spiker testified that he took over from the initial officer. Officer Spiker testified that he performed three field sobriety maneuvers, also detected signs of impairment, and arrested Su for drunk driving. After his direct examination, he was excused from the courtroom.
The district court heard argument about admitting the proffered evidence and ultimately ruled that evidence of the three prior cases was inadmissible. Su was found guilty and he appealed. The ICA affirmed.
Impeaching Witnesses with Specific Instances of Conduct. A party can cross-examine about specific instances of conduct for the purpose of undermining credibility:
Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking the witness’ credibility, if probative of untruthfulness, may be inquired into on cross-examination of the witness and, in the discretion of the court, may be proved by extrinsic evidence.
HRE Rule 608(b). The rule allows admission of “specific collateral conduct” when the conduct “is relevant to veracity.” Commentary to HRE Rule 608(b).
The HSC then clarified that the admissibility of evidence pursuant to HRE Rule 608(b) is a two-step inquiry: “(1) whether the specific conduct evidence proffered for the purpose of attacking the witness’s credibility is probative of untruthfulness, and, if so, (2) whether the probative value of the evidence of the specific conduct is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence pursuant to HRE Rule 403.”
The HSC noted two cases about HRE Rule 608(b). In State v. Stanley, 110 Hawai'i 116, 128, 129 P.3d 1144, 1156 (App. 2005), the ICA concluded that the evidence of a witness sticking his middle finger at the defendant was not related to the witness’s credibility and was correctly precluded. The other example, however, was State v. Estrada, 69 Haw. 204, 738 P.2d 812 (1987). There, evidence of a police officer’s false statements on his application to work for the police department should have been admitted under HRE Rule 608(b) because it went directly to the testifying officer’s credibility. Id. at 219, 738 P.2d at 823.
Once the witness is presented with the evidence of untruthfulness, the witness can either admit or deny it. At that point, the proponent of the evidence can seek to admit extrinsic evidence of the incident and the trial court has the discretion to admit it using HRE Rule 403—the 2d step.
The District Court Erred Here. The HSC held that the district court erred in precluding two of the three specific instances. The false ADLRO statements and the evidence from the fight at the Ala Moana Hotel showed that Officer Spiker on prior instances was untruthful. The other case—in which Officer Spiker’s testimony did not make “physical sense” was not pertaining to credibility. The HSC vacated the judgment and remanded the case for new trial.
It Pays to Keep Tabs on your Police. This is a nice example of the defense knowing his police officers. There’s a tendency for the same cops to testify in multiple cases. When it comes to prior instances of untruthfulness, it’s good to keep track for the future. You never know when you’ll get to use it again.