Evidence offered to demonstrate that a witness has a relationship, interest, or allegiance creating a motive to slant testimony for or against a party. Such evidence is always relevant because it assists the jury in assessing the accuracy and truth of the witness's statements. It may be shown through cross-examination or extrinsic proof, including membership in an organization whose tenets require members to lie or give favorable accounts on behalf of fellow members.
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Cases
How its tested
Common Examples
3
Hacker Collective Membership Questioned
Inventor Maya Ortiz sued CipherCore for misappropriating her encryption algorithm. CipherCore engineer Elena testified that the firm developed the code independently. On cross-examination, the prosecutor asked Elena about her membership in an underground hacker collective whose code requires members to lie to outsiders to protect one another regarding data breaches. The court permitted the questions because the evidence tended to show Elena had an incentive to favor CipherCore's account.
Fraternity Pledge Explored on Cross
Maria Lopez sued Dr. Daniel Chen for malpractice after a misread MRI. Chen's colleague Dr. Evan Ross testified that Chen met professional standards. On cross-examination Lopez asked Ross about his membership in a professional fraternity whose written pledge requires members to give misleading testimony to protect one another from legal trouble. The court allowed the inquiry to let the jury evaluate whether Ross had a motive to favor Chen.
Pena-Rodriguez v. Colorado137 S. Ct. 855, 861 (2017)
In 2007, two teenage sisters were sexually assaulted in the bathroom of a Colorado horse-racing facility. The girls identified the assailant as a racetrack employee, and police arrested Miguel Angel Peña-Rodriguez. Each girl separately identified him as the man who assaulted her. State prosecutors charged Peña-Rodriguez with harassment, unlawful sexual contact, and attempted sexual assault on a child.
Before the jury was empaneled, members of the venire received a written questionnaire asking if anything would make it difficult to be a fair juror. The court and defense counsel repeatedly asked prospective jurors whether they could be fair and impartial. None of the empaneled jurors expressed reservations based on racial bias. After a three-day trial, the jury convicted Peña-Rodriguez of unlawful sexual contact and harassment but failed to reach a verdict on the attempted sexual assault charge.
When the jury was discharged, the court gave the mandated instruction that whether jurors discussed the case was their own decision. Following discharge, two jurors remained in the jury room to speak privately with defense counsel. They reported that during deliberations another juror, identified as H.C., had expressed anti-Hispanic bias toward Peña-Rodriguez and his alibi witness. With the trial court's supervision, counsel obtained sworn affidavits from the two jurors.
The affidavits stated that H.C. said Mexican men had a bravado that caused them to believe they could do whatever they wanted with women. The affidavits further stated that nine times out of ten Mexican men were guilty of being aggressive toward women and young girls. H.C. believed Peña-Rodriguez was guilty because he is Mexican and Mexican men take whatever they want. H.C. did not find the alibi witness credible because the witness was an illegal.
The trial court acknowledged H.C.'s apparent bias. It denied Peña-Rodriguez's motion for a new trial on the ground that Colorado Rule of Evidence 606(b) generally prohibits a juror from testifying about statements made during deliberations in a proceeding inquiring into the validity of the verdict. A divided panel of the Colorado Court of Appeals affirmed, agreeing that the statements did not fall within an exception to the rule. The Colorado Supreme Court affirmed by a 4-3 vote.
The United States Supreme Court granted certiorari to decide whether there is a constitutional exception to the no-impeachment rule for instances of racial bias.
Longshoreman Fellowship Inquiry Allowed
Dawn Vessel sued Summit Ocean for cargo damage. Longshoreman Terry testified that the containers were properly sealed. On cross-examination Dawn Vessel asked Terry about his membership in the Seafarers' Divine Fellowship, whose practices encourage members to give favorable accounts shielding the shipping line from liability claims. The court permitted limited questions so the jury could assess whether Terry had an organizational motive to slant his testimony.
Warger v. Shauers135 S. Ct. 521 (2014)
Gregory Warger was riding his motorcycle on a highway outside Rapid City, South Dakota, when a truck driven by Randy Shauers struck him from behind. Warger claims he was stopped at the time of the accident, while Shauers claims that Warger suddenly pulled out in front of him. The accident resulted in serious injuries to Warger that ultimately required the amputation of his left leg.
Warger sued Shauers for negligence in Federal District Court. During jury selection, counsel for both parties conducted lengthy voir dire of the prospective jurors. Warger's counsel asked whether any jurors would be unable to award damages for pain and suffering or for future medical expenses. Counsel also asked whether there was any juror who thought they could not be a fair and impartial juror on this kind of case. Prospective juror Regina Whipple, who was later selected as the jury foreperson, answered no to each of these questions.
The jury ultimately returned a verdict in favor of Shauers. Shortly thereafter, one of the jurors contacted Warger's counsel to express concern over juror Whipple's conduct. The complaining juror subsequently signed an affidavit claiming that Whipple had spoken during deliberations about a motor vehicle collision in which her daughter was at fault for the collision and a man died, and had related that if her daughter had been sued, it would have ruined her life.
Relying on this affidavit, Warger moved for a new trial. The District Court refused to grant a new trial, holding that the only evidence that supported Warger's motion, the complaining juror's affidavit, was barred by Federal Rule of Evidence 606(b). The Eighth Circuit affirmed the District Court's decision. The Supreme Court granted certiorari to review the case.
5 common questions
Students Frequently Ask...
How is bias shown when a witness belongs to an organization?
A cross-examiner may ask about membership in a group whose tenets require members to lie, cheat, or give favorable accounts on behalf of fellow members. This evidence directly supports an inference that the witness has a motive to shade testimony. The trial court has broad discretion over the scope of such cross-examination.
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Does bias evidence require proof that the witness actually lied in the present case?
No. Bias impeachment focuses on the witness's motive or inclination to testify in a slanted way, not on whether the witness has already been caught in a lie. The proponent need not first prove a specific false statement before offering the evidence.
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Is bias impeachment limited to reputation or opinion testimony?
No. Bias may be proved by any relevant facts, including specific relationships, financial interests, or organizational memberships that give the witness a reason to favor one side. The character-evidence limitations that apply to reputation or opinion do not restrict bias proof.
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Can settlement statements be admitted to show bias?
Yes. Although compromise offers and related statements are generally inadmissible to prove liability or to impeach by contradiction, the rules expressly permit their use for other purposes such as proving a witness's bias.
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Does religious framing of an organizational loyalty oath bar bias impeachment?
No. When evidence is offered solely to demonstrate organizational pressure creating bias rather than to attack credibility on the basis of religious belief itself, the inquiry is permissible. Courts may limit the questions to keep the focus on the organizational incentive.
Supporting sources
EvidencePresentation of evidence · Impeachment, contradiction, and rehabilitationUBEIntermediate