United States v. Medical Therapy Sciences, Inc.

United States Court of Appeals for the Second Circuit · 1978 · Evidence

EvidenceRule 608(a)Witness rehabilitationConspiracyPerjuryFRE 608(a)FRE 607FRE 609(a)(2)

Facts

Berman ran a medical equipment company that fraudulently obtained Medicare payments by double billing carriers, claiming more expensive equipment than was provided, and billing for supplies not delivered or not needed. Barbara Russell, an employee who supervised much of the billing, testified for the government. On direct examination, the government briefly elicited Russell's prior fraud-related convictions and Berman's prior accusation that she had taken money, and on cross-examination the defense sharply questioned her about those convictions and accused her of embezzling money and stealing patients to support the theory that Russell alone committed the fraud. Over objection, the trial judge allowed the government to call character witnesses to support Russell's truthfulness.

Issue

Did the district court err under Federal Rule of Evidence 608(a) by allowing the government to present character witnesses supporting Barbara Russell's truthfulness after the government had itself elicited some damaging background facts on direct, and after the defense cross-examined and otherwise accused Russell of fraud-related misconduct? Also, was there sufficient evidence of conspiracy, and was the perjury conviction proper?

Rule

Rule 608(a) permits evidence of a witness's truthful character only after the witness's character for truthfulness has been attacked by opinion or reputation evidence or otherwise. A party's brief disclosure on direct of a witness's damaging background does not necessarily itself amount to an attack on veracity; if the opponent later attacks the witness's truthfulness through fraud-based convictions, accusations of corrupt conduct such as embezzlement or theft, or contradiction specifically implicating veracity, the trial judge has sound discretion to admit supporting character evidence, subject to careful use and ordinary evidentiary limits.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a wire-fraud trial in Chicago, the prosecution calls Lena Ortiz, a former bookkeeper, as a key witness. On direct, the prosecutor briefly asks Lena to acknowledge a prior conviction for filing false loan applications, explaining that the government wants to be candid with the jury; on cross, defense counsel dwells on that conviction and argues Lena is the kind of person who lies whenever money is involved.

May the trial judge permit the prosecution to call a reputation witness that Lena is known in her community as truthful?

Explanation. Rule 608(a) permits evidence of truthful character after the witness's character for truthfulness has been attacked. The majority explained that a party may briefly reveal damaging background on direct without necessarily attacking its own witness's veracity. When the opponent then uses a fraud-related conviction for impeachment, that can amount to an attack on truthfulness opening the door to rehabilitation, subject to the judge's discretion.