Archive for November 20, 2008

You represent a man who belongs to an ethnic minority, charged with shooting a weapon illegally. The state’s main witness is his acquaintance, a caucasian male. He gives some damning and incrimination testimony. Then you notice tatoos on his arm. Swastikas. Do you cross-examine about any bias he might harbor toward a man of color?

That’s pretty close to the scenario that unfolded in U.S. v. Figueroa, in which the Second Circuit recently ruled that it was an abuse of discretion for the trial court to bar such cross-examination.

Judge Sack writing for a panel of the Second decided:

Inasmuch as the tattoos suggested that Wright harbored animus against racial or ethic minority groups and their members, they were relevant to and probative of Wright’s credibility, bias and a motive to lie when testifying against Figueroa

…

The fact that a witness customarily carries or displays a swastika, as a tattoo or otherwise, therefore would tend to suggest that he or she holds racial, religious or ethnic prejudices. That in turn suggests a basis on which the jury could find the witness’s testimony not credible.

It makes sense. The point of questioning the witnesses affiliation with any white supremacist groups is precisely to determine whether he had any motivation for fabricating his testimony. A lot of people who sport swastika tattoos make no bones (hah) about the fact that they consider themselves racially superior to others. And when you harbor such deep bias against another person on the basis of their skin color, it is a fair question whether that in of itself is sufficient to render the testimony incredible.

So why is there not a more excited tone in this post? Because the Second Circuit eventually ruled that it was harmless error. D’oh!

[The swastika, incidentally, has a long history that is not all Nazi-related. In some cultures, it is a revered symbol, which signifies good, as opposed to evil.]

photo credit: Mez Love