Court of Appeals Vacates Conviction after Finding Prior Lies By Police Officer Probative and Relevant, Cross-Examination Should Have Been Allowed

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


Police have credibility through their perceived authority and oath to protect and serve the community. Juries in most instances believe law enforcement officers, even when their testimony is border-line preposterous. Some jurors even believe that if a police officer is lying, she must have a good reason for doing so, probably because the defendant is “bad.”


Imagine the following scenario: A police officer testifies in court, at a federal pre-trial hearing, that he stopped and frisked a drug user based on information he received from an unidentified informant.  The police officer says he found the suspected drugs and made an arrest. But, before the case ever reaches a trial, the police officer’s pre-trial testimony is completely discredited, some of which is determined to be outright false. In fact, the judge hearing the officer’s testimony says parts of his testimony were not worthy of belief (in layman’s terms, he’s a liar). A few years later the same officer, under similar circumstances, arrests you following a stop and frisk. Do you believe your attorney should have the right on cross-examination to elicit testimony about the officer’s prior false testimony in order to impeach his testimony against you? The Second Circuit Court of Appeals recently answered this question.


Lance White was convicted of possession of a weapon by a felon. He was sentenced to 235 months in a Federal prison. In August 2008, a joint task force of the FBI and the New York Police Department, based on information from a confidential informant, stopped a minivan occupied by Smith and four female companions in Queens, New York. A search of the vehicle produced three firearms with one allegedly being found in White’s right front pocket and the other two in one of the women’s purse. White and the four women were arrested on a state charge of illegal possession of firearms. The state charge was subsequently dismissed after White was charged with the Federal offense of a felon being in possession of a firearm.

Prior to trial, the U.S. District Court excluded two pieces of crucial evidence: First, that the women in the minivan had been initially charged with possessing the firearm allegedly found in White’s possession; and, second, that prior discredited testimony of one of the Government’s law enforcement officers was not probative and relevant. On August 30, 2012, the Second Circuit reversed White’s conviction and remanded the case for a new trial. The appeals court based its reversal on a decision, United States v. Cedeno, it handed down last year which set forth seven factors a trial court should consider when determining whether prior false testimony is probative and relevant. The seven Cedeno factors are:


  1. Whether the prior judicial finding addressed the witness’s veracity in that specific case or generally;
  2. Whether the two sets of testimony involved similar subject testimony;
  3. Whether the lie was under oath or was made in a less formal context;
  4. Whether the lie was about a significant subject matter;
  5. How much time had elapsed since the lie was told and whether there had been any intervening credibility determination;
  6. The apparent motive for the lie and whether a similar motive existed in the current proceeding; and
  7. Whether the witness offered a plausible explanation for the lie.


The trial court in White’s case did not have the benefit of the Cedeno decision when it prevented his attorney from eliciting information about the prior false law enforcement testimony. Defense counsel tried to establish the prior false testimony because there was “lab evidence” that one of the four women possessed all three weapons, including the one supposedly found in White’s pocket. Defense counsel wanted to present evidence that U.S. District Court Judge Fredrick Block, in the case of Phoenix Goines, had found that testimony given by NYPD Detective Paul Herrmann was not worthy of belief. Like Lance White, Goines had been charged with illegal possession of a firearm seized by Herrmann in a street encounter. After hearing Hermann’s testimony at a pretrial suppression hearing, Judge Block granted the motion to suppress the gun and ammunition seized in the case because he did not find Herrmann’s account of what happened before, during, and after Goines arrest to be credible.


The Government in White’s case moved the trial court to preclude White’s defense counsel from using the Goines case on cross-examination of Herrmann during White’s trial. The trial court granted the Government’s motion, saying Judge Block in the Goines case had made no finding of Herrmann’s “general veracity” and that the Goines case was “entirely unrelated” to White’s case. The Second Circuit, however, disagreed and went on to explained why Herrmann’s testimony in White’s case was so crucial:


“At trial, the Government introduced testimony from several of the officers who were present during White’s arrest. The main Government witness was Hermann, a junior member of then NYPD Major Case Unit. Hermann testified that, as part of a joint FBI and NYPD investigation, he and his partners learned that White would be traveling in a maroon minivan near 155th Street and 115th Drive in Jamaica, Queens. Hermann and Lieutenant Sandro Rizzotti were traveling in an unmarked car driven by Sergeant Frank Cuarino. The other members of the team traveled in two unmarked police cars.


“After stopping the minivan, Herrmann and Rizzotti walked to the passenger side of the van while Guarino approached the driver, ‘engaged [her] in conversation,’ and asked her to get out of the vehicle. Herrmann testified that he heard Guarino tell White ‘in the back [seat] to stop moving around.’ Herrmann ‘then opened up the sliding door to the passenger side and asked [White] to show [him] his hands and step out of the vehicle.’ Rizzotti similarly testified that it was ‘[r]ight after’ Guarino directed the driver out of the minivan that he said, ‘[Y]ou stop with your hands,’ and that it was ‘[a]t that point,’ not at some later time, that Herrmann opened the passenger door.


“Certain portions of Herrmann’s testimony were inconsistent. While, on direct examination, Herrmann did not testify that White had been talking on a cell phone before he was frisked, on cross examination, he acknowledged that White had been on a cell phone ‘briefly.’ Defense counsel also questioned him about whether Guarino had told White to stop talking on the phone. Herrmann initially testified that he did not remember any of this, but after his recollection was refreshed with a previous affidavit, he recalled that White was talking on a cell phone while Guarino was talking to the driver, and that Guarino told White to stop speaking on the phone. Herrmann denied that it was the motion of White putting away the phone that caused him to open the back door of the minivan. Instead, Herrmann testified that he opened the car door after White put away the phone, when Guarino subsequently told White to stop moving. Herrmann admitted, however, that he had stated in a prior sworn affidavit ‘Sergeant Guarino then told the defendant in sum and substance to stop moving around in the back of the minivan, [and] the defendant stated that he was putting away his cellular phone.’


“After White stepped out of the minivan, Herrmann frisked White. Herrmann testified that while frisking White, he felt a firearm in the right front pocket of White’s jeans and shouted ‘hot lunch,’ code words that White was carrying a firearm. Rizzotti testified that when he heard the words ‘hot lunch,’ he was standing behind White and handcuffed him. Herrmann further stated that after White was handcuffed, he (Herrmann) removed a ‘Cobra, .380 caliber handgun,’ ‘[s]ilver with a black handle,’ ‘loaded with seven bullets’ from White’s pocket. Rizzotti and Federal Agent Kieran Smith testified that they observed Herrmann take the gun from White’s pocket.


“Herrmann, again, faltered in his account of the search, however. He first testified that he also retrieved White’s cell phone from White’s pocket. When asked if he had taken White’s wallet from his back left pocket, he said he could not ‘recall where [he] got it from.’ He then testified that he was not sure whether White had a wallet and added that the ‘only thing [he] recovered was the firearm.’ He did not ‘recall’ recovering a cell phone, keys, or a wallet from White.


“Herrmann further testified that, after recovering the firearm from White’s pocket, he went around to the driver’s side of the minivan and ‘observed a gray canvas bag that had a firearm inside of it.’ He searched the bag and ‘found another firearm.’ On cross-examination, Herrmann acknowledged a prior sworn affidavit stating that Guarino had searched the minivan and told Herrmann that he ‘found a revolver inside the purse lying on the rear seat.’ Rizzotti testified that two firearms were recovered from the interior of the vehicle, but testified that he had no personal knowledge of how this came about. Smith testified that Guarino noticed a handbag on the driver’s side of the rear seat and alerted Smith and Herrmann to the presence of two firearms in the purse, after which Herrmann recovered the guns. In Smith’s prior sworn affidavit, he made no mention of the recovery of a second gun, but explained that he might not have been asked what firearms were found at the scene, where they were found, or whether there was a second gun.


“During the cross-examination of Herrmann, in response to the testimony that two firearms were found in the purse at the scene, the defense sought to introduce impeachment evidence in the form of a portion of the Government’s memorandum of law on an earlier suppression motion. That memorandum stated that ‘[t]he purse was . . . taken to the precinct, at which time an additional handgun was recovered from inside the purse.’ Defense counsel offered this statement as an admission by a party opponent pursuant to Federal Rule of Evidence 801(d)(2).The Government, in opposition, argued that because the statement was an attorney-drafted summary of the statements of three different officers, it was not admissible, as a prior inconsistent statement, to impeach Herrmann. The Government also noted that if the court admitted the document, the main prosecutor in the case would be required to take the stand to explain his basis for what were his statements. The court said that it did not want to ‘open the door to that’ and ruled that the authority provided by the defense to support introduction of the evidence did not go ‘to the issue of courts admitting contents of memoranda that are submitted to the court by counsel.’”

Rule 608(b) of the Federal Rules of Evidence provides a trial court with discretion to allow a witness’s “character for truthfulness” to be “inquired into” on cross examination if evidence to the contrary is “probative of the character for truthfulness or untruthfulness” of a witness. The Second Circuit in the Cedeno case pointed out that while a trial court may place “reasonable limits” on cross examination to protect against “harassment, prejudice, confusion, and waste,” the court must nonetheless “give wide latitude to a defendant in a criminal case to cross-examine government witnesses.” While it has long been the position of the Second Circuit that a witness can be cross-examined based on “prior occasions when his testimony in other cases had been criticized by [a] court as unworthy of belie,” White’ attorney wanted to cross examine Herrmann relative to Judge Block’s lacking of credibility finding against the officer in the Goines case.


The Second Circuit said the trial court in the White case had concluded that Judge Block’s lack of credibility finding against Herrmann was not probative or relevant in the that case. Specifically, the appeals court rejected the Government’s attempt to distinguish the fact-situation of Cedeno from the Goines case:


“White argues that the district court, like the lower court in Cedeño, erred in considering only the two Cruz factors. The Government demurs, arguing that Cedeño is entirely inapplicable because it involved a finding that the witness had previously lied: specifically, the Government claims that while Judge Block found certain aspects of Herrmann’s testimony not credible, he did not expressly find that Herrmann had lied and hence … Cedeño [does not apply]. We reject this distinction. A finding that a witness is not credible is not fundamentally different from a finding that the witness lied. It often just reflects a fact finder’s desire to use more gentle language. Nothing, moreover, suggests that Cedeño is limited to explicit findings that a witness lied. The instant case, therefore, is controlled by our decision in Cedeño.”


Having made it clear that there is no real difference in findings of lack of credibility and lying, the appellate court made its position abundant clear:


“Significantly, the additional factors we identified in Cedeño weigh strongly in favor of admissibility here. First, Herrmann’s testimony was made under oath in a judicial proceeding. Second, his testimony plainly involved an important matter: at issue in Goines was whether a firearm and ammunition seized by law enforcement officials should be suppressed. Third, the suppression hearing in Goines took place on February 26, 2009, just months before White’s trial on December 14, 2009. Fourth, in attempting to secure a conviction, the motive for Herrmann’s discredited testimony in Goines is identical to his purported motive in the instant case. Finally, Herrmann offered no explanation for the previous inconsistencies in his testimony.


“Guided by Cedeño, we have little trouble concluding that Judge Block’s prior credibility finding against Herrmann was relevant and highly probative in this case. The defendant in Goines, like White, was charged with possession of a firearm. The district court in that case unequivocally discredited Herrmann’s testimony; it concluded that it could not ‘credit’ some of Herrmann’s testimony and that portions of Herrmann’s testimony ‘conflict[ed] with his earlier testimony.’ The district court even suggested that Herrmann himself had recanted certain aspects of his testimony. (‘The Court does not credit Herrmann’s testimony that Goines broke into a run; this testimony is contradicted not only by Goines’s testimony at the evidentiary hearing, but also by Herrmann’s own testimony at the parole hearing and his eventual acknowledgment at the evidentiary hearing that Goines did not have time to run away before he was tackled.’) Further, the court implied that Herrmann had lied in a state-court criminal complaint with respect to the same incident. (‘The Court does not credit that Goines ‘punch[ed]’ Herrmann, as Herrmann stated in the state-court criminal complaint, or that Goines swung at Herrmann’s face, as Herrmann testified at the evidentiary hearing.’)  These credibility judgments are plainly probative of Herrmann’s veracity and could affect a jury’s determination as to his willingness to lie to secure a criminal conviction. Moreover, they are particularly relevant in the case before us where the crux of the defense was that Herrmann lied about finding a weapon in White’s pocket instead of elsewhere in the vehicle.


“We find the district court’s conclusion to the contrary erroneous. The district court noted that while Judge Block discredited certain aspects of Herrmann’s testimony, he relied on other portions. In that vein, the court opined that the inconsistencies in Herrmann’s testimony could have been because of passage of time, confusion, or lack of first-hand knowledge. We agree with White that this reading of Goines is ‘insupportable.’ Judge Block did not attribute any such innocent explanation to Herrmann’s discredited testimony. He instead repeatedly emphasized that he could not credit the testimony, portions of which Herrmann himself was forced to disavow on cross-examination. In choosing to excuse Herrmann’s discredited testimony by ascribing blameless reasons and explanations to it, without even a hint from the Goines court in support of such explanations, the district court clearly erred.


“Moreover, the district court’s fear that admitting the evidence would confuse the jury because it would require the attorneys to delve into the facts and history of the Goines case is misplaced. The district court retained the authority to ‘impose ‘reasonable limits’ on cross-examination to protect against, e.g., harassment, prejudice, confusion, and waste.’ Furthermore, and dispositively, the defense simply sought to inquire ‘whether [Herrmann] previously gave testimony . . . under oath, in another federal gun possession case, and whether the judge in that case refused to credit six different aspects of [that] testimony.’ It did not seek to delve into the facts of the Goines case or inquire about the specific instances when Herrmann’s testimony was discredited. The Government could have asked the opposite: whether the Goines court also relied on some aspects of Herrmann’s testimony. This line of questioning would have given White the ‘wide latitude’ that should be afforded to criminal defendants when cross-examining a Government witness, while allaying the district court’s fear that the evidence would ‘invite . . . distraction and confusion of the jury’


“To the extent the district court’s consideration of jury confusion was targeted at the Rule 403 analysis, we also disagree that any such jury confusion would substantially outweigh the probative value of Judge Block’s adverse credibility finding. The district court characterized the prior credibility finding as ‘far afield from the actual issues in the case.’ We disagree …”

Lying is lying. It should always be a probative and relevant issue in a criminal trial because the very purpose of such a trial is to seek the truth. So we applaud the Second Circuit ruling. Too many innocent people are languishing in American prisons today because the police fabricated evidence, lied under oath, or “fudged the truth” to such a degree that it amounted to borderline perjury. If a witness testifies falsely, especially a law enforcement officer, in an earlier criminal proceeding, the juries in future cases in which the witness testifies should be apprised of the prior false testimony.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization