noting that the jury can, through common sense infer that a witness with children would not want to be convicted of perjury because she would not want to lose custody of her kids
How later courts described this case
- noting that the jury can, through common sense infer that a witness with children would not want to be convicted of perjury because she would not want to lose custody of her kids
- "Juror No. 1 could properly be removed only if the requirements of Rule 24(c) were satisfied.”
Written by the judges who cited it.
The opinion
FARRELL, Associate J.,
concurring.
I agree with Judge Schwelb’s resolution of the juror replacement issue and appellant’s other contentions, but I agree with Judge Ruiz’s conclusion — though not all of her reasoning' — -that the trial judge imposed an unconstitutional limitation on the cross-examination of Ms. Johnson. Unlike the dissent, however, I am convinced that that error was harmless beyond a reasonable doubt, and I therefore join Judge Schwelb in voting to affirm.
The trial judge erred in disallowing all questioning of Ms. Johnson about whether she feared that the outcome of the trial — and a possible focus by the authorities on her own conduct — would affect her ability to regain (or retain) custody of her children. However much or little the witness feared being charged criminally for her actions on the night in question, her possible concern that an ongoing dispute over the custody of her children would be influenced by whether authorities believed her description of the violent events or appellant’s was a separate and “appropriate [subject of] cross-examination designed to show a prototypical form of bias on the part of the witness.” Delaware v. Van Arsdall, 475 U.S. 673, 680 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986). The government rightly points to the danger that injecting a complainant’s fitness as a parent into a case such as this may deter the bringing of well-founded charges of domestic assault. But that risk must be addressed by limitations on the scope and amount of questioning permitted, see id. at 679 , 106 S.Ct. 1431 , and by a limiting instruction underscoring that only the witness’s state of mind, not her character or fitness as a parent, is at issue. The jury here, for example, would not have needed to learn that the Child Protective Services agency had removed Ms. Johnson’s children (or two of them) from her home, and it likewise would not have had to learn that a determination of “neglect” had been made with respect to the children. It would have sufficed for defense counsel to be able to bring out that she was engaged in a controversy over the custody of her children and to ask if she was afraid this would be affected by the outcome of the trial. But preclusion of any bias cross-examination on the subject was error under Van Arsdall .
Nevertheless, in my view we “may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Id. at 681 , 106 S.Ct. 1431 . If the jury was going to accept appellant’s defense that Ms. Johnson was the aggressor and her injuries an accident, it had an ample record on which to do so. *35 On that record, in fact, it acquitted appellant of everything but the least serious offense charged, simple assault. Both parties testified and admitted to a sometimes turbulent relationship in which Ms. Johnson — larger in size than appellant — had not shied from using force against him. She also admitted to having threatened and assaulted another woman for actions in appellant’s presence. Yet the fact remained that on the night in question Ms. Johnson, not appellant, had been burned in the face and neck by hot grease or oil and that, while still in obvious pain and distress, she had reported his responsibility for the burning to the police and a hospital physician.
In short, Ms. Johnson’s character for potential violence was before the jury, and, as Judge Schwelb explains, her incentives to shift the blame to appellant were explored to a considerable extent. “The jury had ample reason to disbelieve [her account] if they were so inclined.” McCoy v. United States, 760 A.2d 164, 178 (D.C.2000). On the other hand, her fresh complaint to the police and hospital of the cause of her injuries corroborated her testimony in court. See Van Arsdall, 475 U.S. at 684 , 106 S.Ct. 1431 . Viewing the whole record, and even “assuming that the damaging potential of the [erroneously disallowed] cross-examination were fully realized,” Van Arsdall, 475 U.S. at 684 , 106 S.Ct. 1431 , I nonetheless am convinced there is no realistic possibility that a jury having learned all it did about both disputants would have acquitted appellant altogether.