M.D.Pa.: Credibility finding against officer in motion to suppress hearing in another case not admissible impeachment

The district court’s findings in another case that the officer here was not credible in his suppression hearing testimony could not be used to impeach the officer at trial in this cases, following United States v. Thompson, 2011 WL 2446564, *3 (N.D. Iowa June 15, 2011), United States v. Guerrier, 2021 U.S. Dist. LEXIS 32022 (M.D. Pa. Feb. 22, 2021):

Notwithstanding defendant Guerrier’s rights under the Confrontation Clause, his counsel will not be permitted to question Ference on cross-examination and to impeach him with the prior judicial findings made by the court in Gilliam, i.e., Ference was not entirely credible when he testified in the suppression hearing in that case. Defendant will not be permitted to ask Ference whether the court in Gilliam found that he lied or testified falsely, and he will not be allowed to ask this witness whether the court found that he was not credible or that his testimony lacked credibility. Such lines of inquiry are precluded by FRE 608 and, they are barred as hearsay. See United States v. Davis, 183 F.3d 231 (3d Cir. 1999) (Third Circuit concluded that a credibility finding is inadmissible extrinsic evidence under Rule 608(b)).

Moreover, as the government contends, the defendant should not be permitted to use the court’s credibility determinations in its opinion regarding the conduct of the officers during the Gilliam suppression hearing to impeach Ference at trial since those judicial determinations are inadmissible hearsay. Defendant does not address this hearsay argument raised by the government in his brief. Nonetheless, “the Government is correct that judicial findings generally do not fall under the hearsay exception established by Rule 803(8)(C),” [which] provides that, “in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, [are not excluded by the hearsay rule] unless the sources of information or other circumstances indicate lack of trustworthiness.” U.S. v. Nelson, 365 F.Supp.2d 381, 388 (S.D. N.Y. 2005). Thus, Judge Mariani’s opinion in Gilliam is an out of court statement offered for the truth of the matter asserted, i.e., to show Ference’s testimony in Gilliam was not entirely credible, and thus constitutes hearsay. See Internat’l Land Acquisitions, Inc. v. Fausto, 39 Fed.Appx. 751, 756-57 (3d Cir. 2002) (citing Nipper v. Snipes, 7 F.3d 415, 417 (4th Cir.1993) (“Rule 803(8)(C), on its face, does not apply to judicial findings of fact; it applies to ‘factual findings resulting from an investigation made pursuant to authority granted by law.’ Fed.R.Evid. 803(8)(C). A judge in a [] trial is not an investigator, rather a judge.”); United States v. Jones, 29 F.3d 1549, 1554 (11th Cir. 1994) (finding that judicial findings are inadmissible hearsay that cannot be corrected under 803(8)); In re Japanese Elec. Prod. Antitrust Litig., 723 F.2d 238, 275 (3d Cir. 1983), rev’d sub nom. Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348 (1986) (concluding that prior judicial findings were not admissible under Rule 803(8)(C), and that the trustworthiness analysis required under Rule 803(8)(C) would be unsuited to evaluating judicial findings because a judge is not a proper witness under Rule 605)).

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