Case 2:10-cr MHT-WC Document 2277 Filed 02/09/12 Page 1 of 5

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1 Case 2:10-cr MHT-WC Document 2277 Filed 02/09/12 Page 1 of 5 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, v. CR. NO. 2:10cr186-MHT MILTON E. MCGREGOR, THOMAS E. COKER, LARRY P. MEANS, JAMES E. PREUITT, HARRI ANNE H. SMITH, and JARRELL W. WALKER, JR., Defendants. UNITED STATES MEMORANDUM OF LAW IN SUPPORT OF ORAL MOTION REGARDING IMPROPER IMPEACHMENT OF WITNESSES The Government submits this memorandum of law in support of its oral motion to preclude impeachment or character attacks on witnesses who have not yet testified. As explained below, courts routinely disapprove of anticipatory impeachment, and the Eleventh Circuit has specifically noted that the practice may leads to confusion, may be irrelevant, and is typically beyond the scope of cross-examination. For decades, courts have disapproved of anticipatory impeachment. Several courts discuss the rule as if it is simply accepted trial practice. See, e.g., Hall v. Vasbinder, 563 F.3d 222, 233 (6th Cir (noting that anticipatory impeachment of a witness is generally disfavored (internal quotation marks omitted; Creekmore v. Crossno, 259 F.2d 697, 698 (10th Cir ( The difficulty is that the impeaching evidence was received before the witness who was sought to be impeached had testified. The credibility of [the witness] was neither relevant

2 Case 2:10-cr MHT-WC Document 2277 Filed 02/09/12 Page 2 of 5 nor material until he testified as to some material fact. ; Bryant v. United States, 120 F.2d 483, (5th Cir ( [The witness] was not on trial, and he had not testified at the time the question was asked. The question was pertinent and material for purposes of impeachment only, and a witness may not be impeached before he has testified.. Circuit stated: In United States v. Baptista-Rodriguez, 17 F.3d 1354 (11th Cir. 1994, the Eleventh Impeachment of a witness who has not yet testified, by its very nature, may be confusing to a jury. In addition, anticipatory impeachment may turn out to be irrelevant, because the government may elect not to call the expected witness. When, as here, the impeachment is attempted through cross-examination of another witness, it may be beyond the scope of cross-examination, because the credibility of a future witness typically is not an appropriate subject on direct examination. Thus, we conclude that the district court did not abuse its discretion when it precluded the defense from using the cross-examination of [a federal agent witness] to impeach the expected witness.... Id. at (internal citations omitted. For the reasons outlined by the Eleventh Circuit, the Government moves the Court to prohibit defense counsel from using anticipatory impeachment during its cross-examination of Government witnesses. First, it will cause jury confusion. By subverting the standard, preferred order which properly allows a witness to testify as to a material fact before she is impeached on that testimony defense counsel would cause the jury to speculate as to an as-yetunidentified witness s role in the facts of the case. See United States v. Portis, 542 F.2d 414, 417 (7th Cir ( If the jury is to hear refuting testimony, it would ordinarily appear to be preferable that such testimony be directed toward actual testimony heard by the jury. That which will be heard must necessarily remain somewhat in the speculative area until it is articulated from the witness stand.. Depending on the progression of the trial, it is possible that the jury 2

3 Case 2:10-cr MHT-WC Document 2277 Filed 02/09/12 Page 3 of 5 might not have even heard the relevant witness s name up to that point, leading to confusion as to the witness s identity and relevance in the case. Further, the jury will have no context as to any opinions regarding the future witness s reputation for truthfulness, or any inconsistencies in the testimony he or she may or may not give. Moreover, as the Eleventh Circuit notes, the Government may choose not to call the expected witness to testify. That would render the anticipatory impeachment irrelevant, and would also cause additional jury speculation as to the Government s strategy and motives in failing to call a witness whose character has been attacked. Such speculation would be unwarranted and unfair. Instead, the Government submits, the more logical approach is to allow the Government to call its witnesses in the order it deems appropriate, and for defense counsel to impeach witnesses on cross-examination and in its own case-in-chief. In following this approach, the Court would ensure that the parties present a coherent and practically ordered case to the jury, eliminating any confusion or speculation stemming from anticipatory impeachment. 3

4 Case 2:10-cr MHT-WC Document 2277 Filed 02/09/12 Page 4 of 5 For the foregoing reasons, the Government requests that the Court preclude impeachment or character attacks on witnesses who have not yet testified. Dated: February 9, 2012 Respectfully submitted, LANNY A. BREUER Assistant Attorney General Criminal Division Attorney for the United States Acting Under Authority of 28 U.S.C. 515 JACK SMITH, Chief By: /s/ M. Kendall Day M. Kendall Day Edward T. Kang E. Rae Woods Marquest Meeks Public Integrity Section U.S. Department of Justice 1400 New York Ave., NW, 12th Floor Washington, DC ( ( m.kendall.day@usdoj.gov Edward.kang3@usdoj.gov Rae.woods@usdoj.gov Marquest.meeks@usdoj.gov 4

5 Case 2:10-cr MHT-WC Document 2277 Filed 02/09/12 Page 5 of 5 Certificate of Service I hereby certify that on February 9, 2012, I caused notice of the instant filing to be sent to counsel of record via the CM/ECF system. /s/ M. Kendall Day M. Kendall Day Edward Kang Rae Woods Marquest Meeks Public Integrity Section U.S. Department of Justice 1400 New York Avenue, 12 th Floor Washington, D.C ( edward.kang@usdoj.gov 5