holding that the defendant failed to preserve his challenge to an in limine ruling that impeachment of the arresting officers for bias would open the door to evidence of the defendant’s prior arrests, where the defendant chose to forego the bias impeachment and the trial court was never called upon to decide precisely what evidence the government would be allowed to present in rebuttal
How later courts described this case
- holding that the defendant failed to preserve his challenge to an in limine ruling that impeachment of the arresting officers for bias would open the door to evidence of the defendant’s prior arrests, where the defendant chose to forego the bias impeachment and the trial court was never called upon to decide precisely what evidence the government would be allowed to present in rebuttal
- upholding admission of testimony that defendant “had numerous contacts” with a police officer “in an official police manner”
Written by the judges who cited it.
The opinion
NEWMAN, Senior Judge,
concurring:
I would make explicit what Judge Reid’s opinion clearly implies. We adopt Luce v. United States, 469 U.S. 38 , 105 S.Ct. 460 , 83 L.Ed.2d 443 (1984) with the limitation provided in the concurrence of Justice Brennan, joined by Justice Marshall.
Explicitly stated, where a pretrial eviden-tiary ruling is one which is committed to the discretion of the trial court (such as the one in this case, i.e., the scope of cross-examination and resultant re-direct and rebuttal), Luce would apply. To preserve such pretrial ruling for appellate review, the proponent is required to present such evidence during trial and obtain an in-trial ruling. On the other hand, where the evidentiary issue presented pretrial is a question of law and, in the words of Justice Brennan, turns on “legal and not factual considerations” a pretrial ruling is sufficient to preserve the issue for appellate review. One such issue was posed by Justice Brennan — “... the constitutionality of admitting immunized testimony for impeachment purposes, ...” Other such examples where a pretrial ruling would appear to be sufficient are the erroneous denial of a psychotherapist/patient privilege, see Jaffee v. Redmond, — U.S. —, 116 S.Ct. 1923 , 135 L.Ed.2d 337 (1996), or an attorney/client privilege. In such cases, there is little need for factual context in order to inform appellate review.
It is based on this reading of Judge Reid’s opinion that I join it.
POSTSCRIPT
I write this postscript to respond in part to Judge Ferren’s concurrence. I disagree that the proffer made by the defense was inadequate. One must keep in mind that what the defense sought to do was in the cross-examination of several government witnesses. Stated another way, the proffer related to the scope of cross-examination. In this context, the proffer was the best one could reasonably expect and, in my judgment, was clearly good enough. Thus, it is upon my understanding that we have adopted Luce , and only on that understanding, that I join in affirming the conviction.
Judge Ferren finds comfort for his view in Marshall v. United States, 623 A.2d 551 (D.C.1992) which he cites and relies upon at pp. 389-390 of his concurrence. Marshall is so factually dissimilar to our case as to simply be inapposite. Unlike Marshall , in the present case the time period of the alleged bias and harassment (the impeachment material) was well defined and there was no ques *399 tion as to when Butler and the witnesses to be impeached (Officers Baker and Spalding) knew each other during that time period. Butler proffered that he testified as a defense witness in a trial in 1992 in which Baker and Spalding were the two chief government witnesses. The crime for which Butler was convicted occurred on September 11, 1994. Thus during this two-year time frame Butler alleged Baker and Spalding harassed Butler out of their anger at him for testifying for a criminal defendant who was acquitted. The alleged harassment started with this 1992 trial, and unlike Marshall , it was clear that the witnesses to be impeached were fully informed from that date as they testified at the trial, knew Butler testified at the trial, and knew the outcome of the trial.
Again, in my view, Marshall is simply inapposite.
In Section II of his concurrence, Judge Ferren set forth his views on why Luce should have been rejected. I will, with one exception, only respond to this section by describing what Judge Ferren said as Jeremy Bentham did in another context in the 19th century as a view “which one would suppose to have found its way from the gaming-table to the bench,” 3 J. Bentham, Rationale of Judicial Evidence 579 (1827), reprinted in 7 Works of Jeremy Bentham 171 (J. Bowring ed. 1843).
The one exception reserved, above, related to Judge Ferren’s view that we, as a court, should not create a disincentive for criminal defendants to take the stand as witnesses at trial. I do not read Luce as creating a disincentive for criminal defendants to testify for it is only if they present the proffered defense, which may or may not entail their taking the stand, that they may preserve the pretrial ruling for appellate review. Looking at it from that perspective one could in fact argue that Luce creates an incentive to testify (or at least to present the proffered defense), for only by doing so is the ruling preserved for appellate review. From the same perspective one could argue we have created an incentive for parties to make objections at trial, for only by objecting to a judge’s ruling is the issue preserved for appeal under the “harmless error” standard of review as compared to the more difficult “plain error” standard. But the purpose of encouraging parties to make objections or to present proffered theories is not to make incentives or disincentives, but to get all the facts on the table, all the players on the field. I have always thought our role as a court was to provide a constitutionally balanced and level playing field for that contest called a “trial” to take place. Nothing less; nothing more.