Defense Attempts to Obtain Information, Testimony of Police Witnesses Stymied

U.S. v. Embry, 2011 WL 6275934 (12/16/11) (Okl.) (unpub'd) - It was not against the interests of justice for the magistrate to refuse to order the government to produce personnel files and FBI-302's involving the two officers who claimed to see the defendant drop a gun. That the government and/or the officers had previously not been forthcoming about the identities of witnesses of the police encounter with the defendant did not establish a pattern of suppression that warranted the belief the government or the police must be hiding impeachment evidence.

The district court did not abuse its discretion when it ruled the defense would not be allowed to question one of the officers on direct about impeaching information that the officer was friends with, and engaged in independent investigation for, corrupt Tulsa officers. In three prior trials that ultimately bore no fruit for the government, the government had presented the officer's testimony in its case-in-chief. In the fourth trial, the government chose not to present that officer's testimony. The defense wanted to call the suspect officer to suggest he may have planted the gun. But a party may not call a witness as a means of impeaching him. A party can present extrinsic impeaching evidence on direct only if (1) the witness denies making a prior inconsistent statement; (2) a party already attacked the credibility of the witness by referring to specific instances of conduct or (3) the party calling the witness anticipates cross aimed at showing untruthfulness through specific-instances evidence. None of that was happening in this case.