See also: CROSS-EXAMINATION
EXPERTS 5(a) Bias
IMPEACHMENT.

1.  Generally

Evidence of bias is used to impeach a witness by showing the witness’ "willingness to testify falsely"{footnote}3A Wigmore, Evidence § 947 (Chadbourn ed. 1970).{/footnote} in favor of one of the parties or in favor of one side of an issue.{footnote}United States v. Abel, 469 U.S. 45, 49-51 (1984) ("[A] defendant should be afforded the opportunity to present facts which, if believed, could lead to the conclusion that a witness who has testified against him either favored the prosecution or was hostile to the defendant."{/footnote}  While impeachment

Possible biases have been summarized as "favor, hostility, self-interest, or fear."{footnote}3A Wigmore, Evidence § 945 (Chadbourn ed. 1970).{/footnote}  A witness may always be impeached with evidence of bias.{footnote}Hawaii R. Evid. 609.1; Hyman v. United States, 342 A.2d 43 (D.C. 1975).{/footnote}  “[P]roof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony."{footnote}United States v. Abel, 469 U.S. 45, 52 (1984).
See also Delaware v. Van Arsdall, 475 U.S. 673, 677 (1986).{/footnote}

Evidence of bias should not be admitted if the probative value of the evidence is outweighed by the unfair prejudice that might result.{footnote}United States v. Weiss, 930 F.2d 185 (2d Cir.), cert. denied, 502 U.S. 842 (1991).
See generally FRE 403 and PREJUDICE.  {/footnote}
The Federal Rules do not address impeaching a witness with evidence of bias,{footnote}But see, e.g., Hawaii R. Evid. 609.1.{/footnote} although the Supreme Court has stated that it is clear that the Rules contemplate such impeachment.{footnote}United States v. Abel, 469 U.S. 45 (1984) (bias evidence admissible under FRE 402, which provides that all relevant evidence is admissible). {/footnote}

2.  Extrinsic Evidence of Bias

Evidence of bias may be introduced either through a witness’ admission on cross-examination. Unlike other forms of impeachment, however, if the witness denies the matter offered to show bias, it may be proven through extrinsic evidence.{footnote}United States v. Abel, 469 U.S. 45, 52 (1984) (evidence of defense witness’ membership with defendant in gang admissible to show bias); United States v. Weiss, 930 F.2d 185 (2d Cir.), cert. denied, 502 U.S. 842 (1991); United States v. Haggett, 438 F.2d 396 (2d Cir. 1971); United States v. Battaglia, 394 F.2d 304 (7th Cir. 1968).
Md. R. Evid. 5-616; Smith v. State, 943 S.W.2d 234 (Ark. 1997); People v. Taylor, 545 P.2d 703, 706 (Colo. 1976) (defendant entitled to present extrinsic evidence of complaining police officer’s racial bias as impeachment, but trial court erred in permitting broad inquiry into the details of the prior arrests); People v. Key, 522 P.2d 719 (Colo. 1974); People v. Simmons, 513 P.2d 193 (Colo. 1973); State v. Elijah, 289 N.W. 575 (Minn. 1940); Beck v. State, 824 P.2d 385, 388-89 (Okla. Crim. App. 1991), overruling Woods v. State, 657 P.2d 180, 182 (Okl.Cr.1983).
But see United States v. Mallah, 503 F.2d 395 (2d Cir. 1974).{/footnote} Extrinsic evidence may include the testimony of other witnesses.  Most jurisdictions require that the witness first explain or deny the evidence of alleged bias before any extrinsic evidence will be allowed.{footnote}United States v. Weiss, 930 F.2d 185 (2d Cir.), cert. denied, 502 U.S. 842 (1991) (foundation in form of a preliminary question often required)
Hawaii R. Evid. 609.1:

(b) Extrinsic evidence of bias, interest, or motive. Extrinsic evidence of a witness’ bias, interest, or motive is not admissible unless, on cross-examination, the matter is brought to the attention of the witness and the witness is afforded an opportunity to explain or deny the matter.

State v. Shaw, 378 P.2d 487 (Ariz. 19__); Mann v. Schurr, 474 P.2d 183 (Colo. App. 1970); Brown v. State, 362 So. 2d 437 (Fla. App. 1978); State v. Guillory, 461 So.2d 492 (La. App. 1984); Billings v. Stanley, 759 S.W.2d 277, 280 (Mo. App. 1988) (but error waived due to failure to object on this ground).
Contra Wintjen v. State, 398 A.2d 780 (Del. Sup. 1979); State v. Williams, 573 N.E.2d 704 (Ohio App. 1988).
See generally Annotation, Necessity And Sufficiency Of Foundation For Discrediting Evidence Showing Bias Or Prejudice Of Adverse Witness, 87 A.L.R.2d 407.{/footnote}  See also 4(f).  Prior Statements Reflecting Bias.

The trial court may in its discretion limit the evidence which is admitted to show bias.{footnote}United States v. Greenwood, 796 F.2d 49 (4th Cir. 1986); United States v. Brown,  547 F.2d 438 (8th Cir. 1977); United States v. Dadanian, 818 F.2d 1443 (9th Cir. 1987); United States v. Gambler, 213 App. D.C. 278, 662 F.2d 834 (D.C. Cir. 1981)(prosecution witness).
People v. Taylor, 545 P.2d 703, 706 (Colo. 1976) (defendant entitled to present extrinsic evidence of complaining police officer’s racial bias as impeachment, but trial court erred in permitting broad inquiry into the details of the prior arrests){/footnote}  "When the main circumstances from which  bias proceeds have been proven, the trial judge has discretion to determine how far the details, whether on cross-examination or by other witness, may be allowed to be brought out."{footnote}E. Cleary, Mccormick On Evidence § 40, at 88 (3d ed. 1984). {/footnote}

3.  Prosecution Witnesses

The Sixth Amendment to the Constitution generally guarantees the right of a criminal accused to cross-examine the witnesses against him as to bias.{footnote}See generally U.S. Const. Amend. VI.  See CONFRONTATION.{/footnote} As the United States Supreme Court held in Delaware v. Van Arsdall:

criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.{footnote}475 U.S. 673, 680 (1986) (citation omitted).{/footnote}
Defendants therefore must be given considerable latitude in cross-examining prosecution witnesses for bias,{footnote}Delaware v. Van Arsdall, 475 U.S. 673 (1986) (court may not deny defense opportunity to show bias of prosecution witness; but error may be held harmless); Davis v. Alaska, 415 U.S. 308, 315 (1974) (interest of the accused in confronting prosecution witness about prior juvenile offenses to show that witness was testifying out of fear for his probationary status supercedes state’s interest in the anonymity of juvenile offenders); District of Columbia v. Clawans, 300 U.S. 617 (1937) (trial court unduly restricted cross-examination relevant to bias);  United States v. Singh, 628 F.2d 758 (2d Cir. 1980); United States v. Cooks, 52 F.3d 101, 103-04 (5th Cir. 1995) ("Cross-examination to expose a witness'[s] motive for testifying is always relevant as discrediting the witness and affecting the weight of his testimony, and is especially important with respect to witnesses who may have substantial reason to cooperate with the government."); United States v. McLernon, 746 F.2d 1098 (6th Cir. 1984) (court may not deny defense opportunity to explore bias of prosecution witness).
Hollingsworth v. United States, 531 A.2d 973 (D.C. 1987) (trial court improperly denied defense opportunity to recall defense witness to testify that after his original testimony he was threatened by prosecution witness; evidence held probative of prosecution witness’ bias against defendant); People v. Bartell, 652 N.Y.S.2d 172 (1996) (trial court violated defendant’s right of confrontation by restricting defense counsel’s cross-examination of police officer with regard to a sexual harassment complaint filed against officer by defendant’s wife; error found harmless); People v. Gary, 61 A.D.2d 563, 403 N.Y.S.2d 63 (N.Y. Sup. Ct. 1978) (in rape prosecution, alleged victim’s three similar false rape reports
But see Smith v. United States, 392 A.2d 990 (D.C. 1978) (cross-examination as to prosecution witness’ juvenile convictions properly disallowed; defense did not state that purpose of evidence was show bias, but instead indicated purpose was to attack witness’ character as law-abiding citizen).{/footnote} although trial courts have the discretion to impose reasonable limits on such cross-examination based on "legitimate considerations of harassment, prejudice, confusion of issues, the witness’ safety or interrogation that is redundant or of only slight relevance to the matter in issue."{footnote}Delaware v. Van Arsdall, 475 U.S. 673, 676 (1986).
See also Springer v. United States, 388 A.2d 846 (D.C. 1978) (defense improperly denied opportunity to show prosecution witness was paid police informant).{/footnote}  The Sixth Amendment is not violated so long as the jury has sufficient information to adequately gauge a witness’ credibility and possible bias.{footnote}United States v. Cooks, 52 F.3d 101, 103-04 (5th Cir. 1995); United States v. Easter, 66 F.3d 1018, 1022-23 (9th Cir. 1995), cert. denied, ___U.S.____, 116 S. Ct. 1026 (1996); United States v. Diaz, 26 F.3d 1533, 1539-40 (11th Cir. 1994), cert. denied  ___ U.S.___, 115 S. Ct. 1110 (1995).
State v. Balisbana, 924 P.2d 1215, 1220 (Hawaii 1996).{/footnote}

A prosecution witness may be impeached by evidence that he or she has received or been promised leniency or immunity as to criminal charges in exchange for testifying.{footnote}United States v. Hogan, 23 F.2d 905 (3d Cir. 1956); United States v. Goff, 847 F.2d 149 (5th Cir. 1988); Greene v. Wainwright, 634 F.2d 272 (5th Cir. 1981); United States v. Brown, 546 F.2d 166 (5th Cir. 1977)(party may bring out fact that prosecution witness is subject to pending criminal charges); United States v. Mayer, 556 F.2d 245 (5th Cir. 1977).
Check United States v. Muscarella, 585 F.2d 242 (7th Cir. 1978).{/footnote}  See also PLEA AGREEMENTS.  That a witness received payments from the government shortly before the trial is admissible to show bias,{footnote}Harris v. United States, 371 F.2d 365 (9th Cir. 1967).{/footnote} as is evidence that the witness can expect payment after trial from the government.{footnote}United States v. Leja, 568 F.2d 493 (6th Cir. 1977).{/footnote}  The prosecution may rehabilitate a witness whose credibility has been attacked in this way by bringing out the witness promised to testify truthfully as a condition to the plea agreement.{footnote}United States v. DiLoreto, 888 F.2d 996 (3d Cir. 1989).{/footnote}

4.  Particular Forms of Bias

Evidence of bias can take various forms, but it has been held that such evidence must be direct and positive.{footnote}Taylor v. Checker Cab, 34 Ill. App. 3d 413, 339 N.E.2d 769 (1st Dist. 1975)(that witness had been fired fifteen years before by one of the parties not admissible to show bias against that party, because too remote).{/footnote}

4(a).  Family Relationship with Party

A witness may of course be impeached by showing that he or she is related to a party.  However the fact that some other  family member of a witness has some bias or interest in the outcome of the litigation is generally held inadmissible.{footnote}Templeton v. United States, 151 F.2d 706 (6th Cir. 1945).
But see United States v. Bagaric, 706 F.2d 42, 69 (2d Cir.), cert. denied, 464 U.S. 840 (1983) (government properly impeached defendant’s wife her brother’s unrelated conviction as evidence of bias).{/footnote}

4(b).  Friendship

  A witness may not only be impeached by showing that they are a friend of one of the parties, but they may also be impeached by evidence that they have a friend with some interest or bias with respect to the litigation.{footnote}Frost v. United States, 80 F.2d 341 (5th Cir. 1935).{/footnote}

Extrinsic evidence may be introduced to establish the friendship.{footnote}Frost v. United States, 80 F.2d 341 (5th Cir. 1935).{/footnote}

4(c).  Business Relationship With Party

A witness may be impeached by evidence that he or she is employed by one of the parties to a lawsuit,{footnote}Thurber v. Fairchild Motor Corp., 269 F.2d 841 (5th Cir. 1959).{/footnote} or by a party’s insurer,{footnote}Charter v. Chleborad, 551 F.2d 246 (8th Cir. 1977).

Check Majestic v. Louisville & N.R. Co., 147 F.2d 621 (6th CIr. 1945) (admissible even though bring’s to jury’s attention the fact of insurance; limiting instruction should be used).{/footnote} or has some financial interest in the outcome of the suit.{footnote}Wheeler v. United States, 351 F.2d 946 (1st Cir. 1965); Gladden v. P. Henderson & Co., 385 F.2d 480 (3d Cir. 1967).{/footnote} 
 

4(d).  Compensation for Testifying

A witness may be impeached by evidence that he or she has received or been promised compensation for time or expenses in exchange for testifying.{footnote}Harris v. United States, 371 F.2d 365 (9th Cir. 1967)(informant’s compensation admissible).

Gabosch v. TUllman, 21 Ill. App. 3d 908, 316 N.E.2d 226 (1st Dist. 1974).{/footnote}

4(f).  Prior Statements Reflecting Bias

Evidence of prior statements made by the witness reflecting hostility, bias or an adverse interest are admissible.{footnote}Billings v. Stanley, 759 S.W.2d 277, 279-280 (Mo. App. 1988) (plaintiff’s profane remarks regarding defendant’s race properly admitted to show bias).{/footnote}  It has been held, however, that it is first necessary to lay the proper foundation by asking the witness on cross-examination whether or not he made the statement at issue, thereby giving him an opportunity to explain the statement.{footnote}U.S. v. Betts, (7th Cir. 199_); United States v. Marzano, 537 F.2d 257, 265 (7th Cir. 1976), cert. denied, 429 U.S. 1038 (1977); U S. v. White, 225 F. Supp. 514 (D.C. Dist. Col. 19__).
Tex. R. Crim. Pro. 612(b):

Examining  witness  concerning  bias  or interest. In impeaching a witness, by proof of circumstances or statements showing  bias  or interest, on the part of such  witness,  and before further cross-examination concerning, or extrinsic evidence of, such  bias  or interest may be allowed, the circumstances supporting such claim or the details of such statement, including the cotents and where, when and to whom made, must be made known to the witness and the witness  must be given an opportunity to  explain or dny  suchc ircumstnaces or statement. If written, the writing need not be shown to him at t hat time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits such bias or interest, extrinsic evidence shall not be admitted. A party shall be permitted to present evidence rebutting any evidence impeaching one of said party’s witnesses on grounds of bias or interest.
People v. Ward, 505 N.E.2d 1251 (Ill. App.), cert. denied, 515 N.E.2d 1251 (1987); Billings v. Stanley, 759 S.W.2d 277, 280 (Mo. App. 1988) (but error waived due to failure to object on this ground).
See generally 3 Louisell & Mueleer § 341, at 479-80 & n.40 (1979); 3 Weinstein’s Evidence && 607(03), 607(54) (1976 & Supp. 1990).
See also § 2.  Extrinsic Evidence of Bias.{/footnote}

4(g).  Cooperation or Non-Cooperation with a Party or Its Counsel

The fact that a witness spoke with or gave a statement to one side before trial is admissible to show bias, and a witness’ refusal to talk with or give a statement to one side is likewise  admissible to show hostility.{footnote}See, e.g., Goertz v. Chicago and North Western Ry Co., 153 N.E.2d 486 (Ill. App. 1958); Alexander v. State, 610 So. 2d 320 (Miss. 1992) (dictum).{/footnote}

4(h). Other Disputes or Lawsuits

A witness may be shown to be biased by virtue of being a party to a prior dispute{footnote}See Staton v. United States, 466 A.2d 1245 (D.C. 1983) ("an important way of demonstrating witness’ bias is showing possibility of hostility stemming from previous conflict between witness and adverse party").{/footnote} or lawsuit involving one of the parties to the suit being tried, or involving the same factual situation.{footnote}Katz v. Shaf Home Builders, 418 N.E.2d 822 (Ill. App.  1981); Feigl v. Terminal R.R. Assn., 332 N.E.2d 416 (Ill. App. 1975).{/footnote}

The majority of courts have held that a party may cross-examine a witness  concerning a contemplated future civil action against the cross-examining party to show bias.{footnote}State v. Underwood, 281 N.W.2d 337 (___1979); State v. Arlington, 875 P.2d 307, 315 (Mont. 1994) (but denial of impeachment held harmless error); State v. Ferguson, 450 N.E.2d 265 (Ohio 1983); Wooten v. State (1985), 464 So.2d 640 (__ 1985).
Contra People v. Martinez, 458 N.E.2d 104 (Ill. App. 1983) (potential litigation too speculative and uncertain to form basis for impeachment as to bias); People v. Bradford, 397 N.E.2d 863 (Ill. App. 1979) (same){/footnote}

4(i).  Prejudice

Witnesses may be impeached by evidence that they are prejudiced against a group to which the party against whom they are testifying is a member.{footnote}United States v. Kartman, 417 F.2d 893 (9th Cir. 1969).
People v. Taylor, 545 P.2d 703, 706 (Colo. 1976) (defendant entitled to present extrinsic evidence of complaining police officer’s racial bias as impeachment, but trial court erred in permitting broad inquiry into the details of the prior arrests); Billings v. Stanley, 759 S.W.2d 277, 279-280 (Mo. App. 1988) (plaintiff’s profane remarks regarding defendant’s race properly admitted to show bias).
Check Mack v. First Security Bank of Chicago, 511 N.E.2d 714 (Ill. App. 1987)(racial prejudice).{/footnote}

4(j).  Other Evidence of Hostility or Bias

Many other forms of evidence to show bias or hostility have been held admissible.{footnote}Wynn v. United States, 130 App. D.C. 60, 397 F.2d 621 (D.C. Cir. 1967).{/footnote}

5.  Rehabilitation

Evidence may be introduced showing that an allegation or implication of bias is unfounded.  However, a party may not try to introduce evidence that the witness’ hostility to the other party is reasonable or justified under the circumstances, since this is by itself irrelevant.{footnote}People v. Pierce, 269 Cal. App. 2d 193 (1969).{/footnote}

6.  Appeal

Whether to allow impeachment through evidence of bias is a matter within the discretion of the trial court,{footnote}State v. Crowley, 578 A.2d 157 (Conn. App.), app. denied, 216 Conn 816, 580 A2d 62 (1990).
But see State v. Balisbana, 924 P.2d 1215, 1220 (Hawaii 1996) (whether evidence is probative bias is reviewed under “right/wrong standard”){/footnote} although constitutional considerations come into play where a defendant in a criminal case has been denied an opportunity to impeach a prosecution witness.  Even an erroneous infringement on the defendant’s right of confrontation, however, made be held harmless error.{footnote}E.g., People v. Bartell, 652 N.Y.S.2d 172 (1996) (trial court violated defendant’s right of confrontation by restricting defense counsel’s cross-examination of police officer with regard to a sexual harassment complaint filed against officer by defendant’s wife; error found harmless).{/footnote}  See 3.  Prosecution Witnesses, supra.

Bibliography

Sidonie C. Jeffers, The Confrontation Clause and the Establishment of Bias in Criminal Prosecutions, 32 How. L.J. 149 (1989).
Annotation, Necessity And Sufficiency Of Foundation For Discrediting Evidence Showing Bias Or Prejudice Of Adverse Witness, 87 A.L.R.2d 407.