Counsel for Appellant Danail M. Mizinov
Counsel for Appellee Timothy P. Zintak
Appeal from the Trial Division, the Honorable Kathleen M. Salii, Associate Justice, presiding.
[ 5] A trial ’s decisiocisions concerning the admission of evidence are reviewed for abuse of discretion. Kumangai v. ROP, 9 ROP 79, 82 (2002). Under this sta, “a trial court’s decision will not be overturerturned unless the decision was
arbitrary, capricious or manifestly unreasonable, or because it stemmed from an improper motive.” Remengesau v. ROP, 1 113, 118 (2011). DISCUSSION
[ 6] Dulei cos that the TrialTrial Division violated his rights under Article IV, § 7’s Examinatiouse to e to “be
permitted full opportunity to examinewitnesses” by sustaining the Republic’s objectijections to several of his questions
on cross-examination because doing soented him from “meanimeaningfully cross-examining” his girlfriend and the police
investigator. The arguments presented by Dulei and the Republic rely entirely on United States case law to define the scope of Dulei’s
right to effectively cross-examine the Republic’s witnesses. We have previously noted that the Examination Clause of Article
IV, § 7 is &;sufficiently similarmilar” to the United States’s Confrontation Clause “to make it worthwhile
to look to U.S.ority” when considering arguments that this right has been violated. Ngiraked v. R v. ROP, 5 ROP Intrm. 159, 170-71 (1996). Neither party argues that the differences in phrasing between these two clauses would affect the
outcome of this case.
[ 7] United States coecisionssions in “Confrontation Clause cases fall into two broad categories: cases involving the admission
of out-of-court statements and cases involving restrictions imposed by law or by the trial court on the scope of cross-examination.”
Delaware v. Fensterer, [1985] USSC 228; 474 U.S. 15, 18 (1985). “Cross-examination is the principle means by which the believability of a witness and the truth of his testimony
are tested.” Davis v. Alaska, [1974] USSC 39; 415 US 308, 316 (1974). “So essential is cross-examination to this purpose that the absence of proper confrontation ‘calls into
question the ultimate integrity of the fact-finding process.’” U.S. v. Riggi, [1992] USCA3 151; 951 F.2d 1368, 1376 (3rd Cir. 1991) (quoting Ohio v. Roberts, [1980] USSC 137; 448 U.S. 56, 64 (1980)). However, “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable
limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, [1986] USSC 65; 475 US 673, 679 (1986).
I. QUESTIONS REGARDING THE PROSECUTION’S PRE-TRIAL MEETING WITH THE DEFENDANT’S GIRLFRIEND
[ 8] Dulei as that there was was a “possible violation” of ROP Rule of Criminal Procedure 16(a)(1)(E) because the Republic
did not provide a written summary of ting between the prosecutor, the police investigator, and hand his girlfriend which took place
shortly before trial. Rule 16(a)(1)(E) requires the government to provide the defendant the opportunity to inspect and copy:
The name and address of any person whom the [prosecution] intends to call as a witness at trial or at any hearing, and the statements
and the record of any felony convictions of such proposed witnesses. As used in this subdivision, a “statement” of a
witness means:
(i) a written statement made by the witness that is signed or otherwise adopted or approved by the witness; or
(ii) a substantially verbatim recital of an oral statement made by the witness that was recorded contemporaneously with the making
of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or transcription thereof.
[ 9] dant appears to have take taken the position at trial that this rule required the Republic to prepare and provide the Defendant
with written summaries of all “witness interviews,” ding those conducted by they the Republic in preparation for trial.
On appeal, Defendant acknowledges that the rules “do not require the prosecution to memorialize witness interviews to writing,”
but argues it should have been permitted to ask the participants of said meeting whether any such written summary was prepared.
The Trial Division sustained the Republic’s objection to this line of questioning on relevance grounds after the Republic represented
that no such written summary was prepared. Defendant now argues on appeal that prohibiting this line of questioning violated his
Examination Clause rights.
[ 10] As Defendant now ackngeledges, Rule 16(a)(1)(E) does not require the Government to prepare written summaries of any interactions
between the Republic and potential witnesses. Furthermore, Rule 16(a)(1)(E) does not even require the disclosure of any written
summaries which are prepared, only the “statements” of proposed witnesses, which must either be (i) signed, adopted,
or approved by the witness, or (ii) a “substantially verbatim recital” which was “recorded contemporaneously.”
A written summary prepared by the prosecution team is unlikely to fall into either of these categories, and so is unlikely to fall
under Rule 16(a)(1)(E)’s disclosure obligation.[2] See Goldberg v. United States, [1976] USSC 51; 425 U.S. 94, 122 n.9 (1976) (Powell, J, concurring in judgment) (“Counsel rarely take down verbatim what witnesses say in [pretrial] conferences.
Consequently, prosecutors’ notes may be expected to meet the requirements of [‘substantially verbatim statements’]
very infrequently.”).
[ 11] In short, Duleis to s to show any reasonable basis for believing there were any discovery violations by the Republic. Therefore,
Dulei’stions about the Republic’s pre-trial meetings were not even marginally relevant to hito his guilt or innocence
of sexual assault, and the Trial Division’s prohibition on these questions during cross-examination could not have violated
his Examination Clause rights.
II. QUESTIONS REGARDING WHETHER THE MINOR VICTIM HAD MADE UP STORIES IN THE PAST
[ 12] Dulei asserts that he s he should have been permitted to ask his girlfriend whether she “knew of [the minor] making up
stories in the past.” The Trial Div initially overruled the Republic’s objection to this this question, but sustained
that objection after a sidebar conference[3] where the Republic argued that it was improper for Dulei to ask his girlfriend about the minor’s credibility or about specific
instances of conduct. Dulei argues that the Trial Court abused its discretion by imposing a “wholesale prohibition of [Dulei’s]
efforts to impugn the credibility of the victim through a third party,” and that these questions should have been allowed under
Rule of Evidence 608. He asserts that this this ruling prevented “a meaningful cross-examination of the witness” in
violation of his Article IV, § 7 rights. A. ROP Rule of Evidence 608
[ 13] ROP RulEvidence 608, wh8, which is identical to U.S. Federal Rule of Evidence 608, places clear limitations on a litigant’s
ability to use one witness to provideence about the general credibility of another witness, prov providing in relevant part that:
(a) . . . [T]he credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but . . .
the evidence may refer only to character for truthfulness or untruthfulness . . . [and]
(b) . . . [S]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility
. . . may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness
or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the
witness being cross-examined has testified.
[ 14]20;This rule of evidencedence has not been considered by this Court. Accordingly, we turn the United States law interpreting
the identical Federal Rule of Evidence for guidance.” Teil v. ROP, 9 ROP 139, 139, 141 (2002). “Fed. R. Evid. 608(b) allows a party to attack the credibility of a witness by cross-examining
[that witness] on specific instances of past conduct.” United States v. Whitmore, [2004] USCADC 50; 359 F.3d 609, 618 (D.C. Cir. 2004). The Rule is not a basis to allow a witness to be cross-examined on specific instances of past conduct of
some other witness.
[ 1erefore the question of whof whether Dulei’s girlfriend “knew of [the minor] making up stories in the past”
is not permitted under Rule 608. To the extent that this question is seeking an opinion on the minor’s general credibility,
it violates 608(a)’s restriction that the question “refer only to character for truthfulness or untruthfulness,”
not be about specific conduct by the minor that would have contributed to his girlfriend’s opinion that the minor was generally
truthful or untruthful. To the extent that this question is attempting to elicit specific instances of the minor “making up
stories,” it runs afoul of Rule 608(b)’s restriction that questions regarding specific instances of conduct can only
be asked (1) of the witness whose credibility is being attacked or (2) of a different witness who has provided an opinion (as permitted
under Rule 608(a)) that the witness whose credibility is being attacked is a truthful person. Dulei’s girlfriend did not offer
an opinion as to the minor’s general character for truthfulness on direct examination, so Rule 608 does not permit questions
about specific instances of the minor being untruthful on cross-examination.
B. Examination Clause
[ 16] Finally trial courtRt’s Rule 608(b) ruling was not a “wholesale prohibition of [Dulei’s] efforts to impugn
the credibility of the victim through ad party.” Dulei was not restricted in introducing evng evidence admissible pursuant
to Rule 608, and he offered no such evidence.
CONCLUSION
[ 17] For thegoing reasons, Dns, Dulei’s conviction is AFFIRMED.
SO ORDERED, this 17th day of August, 2017.
[1] According to her trial tesl testimony, she was his girlfriend at the time of the incident and remained so at the time of trial.
[2] Of course, there are other discovery obligations which require the Republic to disclose information learned in witness interviews
to the defense, whether or not a written statement was made by the witness. For example, the Republic has an affirmative obligation
under the Due Process clause of Article IV, § 6 of our Constitution to turn over any exculpatory evidence upon request by the
defendant. Ngiraked, 5 ROP Intrm. at 172 (adopting the rule of Brady v. Maryland, [1963] USSC 92; 373 US 83 (1963)). But Dulei admits he is not aware of anything exculpatory that was learned in the pre-trial meeting with his girlfriend,
and he points to no other basis on which he believes the substance of the Republic’s pre-trial meeting with his girlfriend
should have been disclosed.
[3] This sidebar conference created difficulties in the record, because the recording devices are not set up for sidebar conferences.
When it is necessary to conduct a conference outside the hearing of a witness or jury, the better practice is to excuse the witness
or jury and avoid substantive sidebar conferences.
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