Legal Authority- Evidence of Bias
Section 90.608(2), Florida Statutes, provides that the credibility of a witness may be attacked by showing that the witness is biased. See Morrison v. State, 818 So. 2d 432, 446-47 (Fla. 2002); Caton v. State, 597 So. 2d 412-412-13 (Fla. 4th DCA 1992) (holding that it was error to restrict defense cross-examination of officer about his motive for pursuing a battery charge).
Bias, interest, motive, and animus are never collateral matters on cross-examination and are always proper. U.S. v. Abel, 469 U.S. 45 (1984); Wallace v. State, 26 So. 713, 722-23 (Fla. 1899); Mouery v. State, 884 So. 2d 1029 (Fla. 4th DCA 2004); Lavette v. State, 442 So. 2d 265 (Fla. 1st DCA 1983) (finding error to prohibit cross-examination on the specific motives of a State witness).
When discrediting a witness, “a wide range of cross examination is permitted as a matter of right with regard to his motives, interest, or animus as connected with the cause or the parties thereto . . .” Gelabert v. State, 407 So. 2d 1007, 1010 (Fla. 5th DCA 1981). A defendant must be afforded wide latitude to demonstrate bias or possible motive for a witness’s adverse testimony. Daniels v. State, 34 So. 2d 1166, 1167 (Fla. 2d DCA 1979).
Although a court may exercise its discretion to determine the proper scope of cross examination, trial courts may not prohibit all questioning into witness’s biases. Childers v. Floyd, 642 F. 3d 953, 970 (11th Cir. 2011).
Standard for Admissibility
Evidence relating to bias and prejudice is admissible when it is probative of the credibility of the witness. State v. Pettis, 520 So. 2d 250 (Fla. 1988). The extent of the inquiry into the details of the matter is within the trial court’s discretion. Coolen v. State, 696 So. 2d 738, 743 (Fla. 1997).
Subjects of Cross Examination
A witness’s relationship to a party or cause, the personal feelings of a witness toward a party, and the fact that a prosecution witness is under threat of a criminal charge or investigation have all been recognized by Florida Appellate Courts as proper subjects of cross-examination relating to bias, motive, interest, prejudice, or animus.
- Sias v. State, 416 So. 2d 1213, 1218(Fla. 3d DCA 1982) (relationship);
- Hitchcock v. State, 578 So. 2d 685, 692 (Fla. 1990) (friendly or unfriendly feelings of a witness towards a party: the fact that a witness was on death row);
- Richardson v. State, 789 So. 2d 1055, 1056 (Fla. 3d DCA 2001) (friendly or unfriendly feeling toward a party: contents of a hateful letter sent to defendant by an alleged victim);
- Jones v. State, 678 So. 2d 890, 892 (Fla. 4th DCA 1996) (friendly or unfriendly feeling towards a party: statements about a party’s homosexuality);
- Gibson v. State, 661 So. 2d 288, 291 (Fla. 1995) (friendly or unfriendly feelings of a victim: specific allegations about an alleged marital affair);
- Nelson v. State, 602 So. 2d 550, 552 (Fla. 2d DCA 1992) (friendly or unfriendly feelings of victim: details of prior drug deals engaged in between a victim and defendant).
A defendant is also permitted to inquire of a witness regarding charges that were recently dismissed, even where there is no proof of an an agreement between the witness and the State. Lewis v. State, 623 So. 2d 1205, 1206 (Fla. 4th DCA 1993); Jean-Mary v. State, 678 So. 2d 928, 929 (Fla. 3d DCA 1996).
Even if evidence is inadmissible through other methods of impeachment, it remains admissible if it is probative of the witness’s biases. Flores v. Miami-Dade County, 787 So. 2d 955, 958 (Fla. 3d DCA 2001). Thus, even though a pending juvenile charge is not admissible under Section 90.610 as impeachment for certain criminal convictions, a defendant may nontheless inquire into the charge if it shows that the witness has an interest in pleasing the State. Tuell v. State, 905 So. 2d 929, 930 (Fla. 4th DCA 2005).
Scope of Cross Examination
Although a trial court has discretion to limit the scope of inquiry into the matters giving rise to an alleged bias, interest, motive, or animus, Florida Appellate Courts have not limited defendants to generalized inquiries regarding a witness’s feelings towards a party to the action.
For example, in Powe v. State, 413, So. 2d 1272 (Fla. 1st DCA 1982), the First District Court of Appeal reversed a defendant’s conviction where the trial court refused defense counsel’s request to inquire as to whether the State’s witness was aware that the charge to which he eventually pleaded carried a five-year minimum mandatory sentence. Although the jury was made aware of the witness’s plea and its terms, the court found it significant that the witness’s knowledge of the five-year minimum mandatory may have impacted significantly the witness’s willingness to testify against the defendant. Id. At 1273.
Numerous Florida Appellate Court decisions illustrate the degree of latitude afforded to the defense in inquiring about sources of bias, interest, motive, prejudice, or animus. Some example cases include the following:
- Jones v. State, 687 So. 2d 890, 892 (Fla. 4th DCA 1996) (permitting inquiry about prior statements made by a defendant regarding an alleged victim’s homosexuality);
- Holmes v. State, 642 So. 2d 1387, 1389 (Fla. 2d DCA 1994) (refusal to allow the defense to cross examine a victim about an earlier case where she testified against the defendant was error because it would show “the victim’s bias and her motivation to lie because she was angry that [the defendant] was acquitted in the prior case”);
- Nelson v. State, 602 So. 2d 550 (Fla. 2d DCA 1992) (approving inquiry about prior drug deals between the defendant and a prosecution witness);
- B.M. v. State, 66 So. 3d 1013, 1014 (Fla. 3d DCA 2011) (approving inquiry by a juvenile defendant into previous administrative complaints the juvenile had filed against a testifying law enforcement officer);
- Nelson v. State, 704 So. 2d 752, 754 (Fla. 5th DCA 1998) (recognizing as relevant evidence that a defendant has filed previous domestic violence petitions against the alleged victim);
- Blue v. State, 8 So. 3d 454 (Fla. 1st DCA 2009) (approving inquiry regarding prior false allegations made by a victim against a defendant); Lloyd v. State, 909 So. 2d 580, 581 (Fla. 2d DCA 2005) (approving inquiry about a prior physical altercation between a defendant and the alleged victim);
- Brandful v. State, 858 So. 2d 367 (Fla. 3d DCA 2003) (approving inquiry about a pending civil suit);
- Nelson v. State, 704 So. 2d at 753 (approving inquiry into a civil suit brought by the defendant against the witness/victim prior to being charged with the crime at issue);
- Hinajosa v. State, 857So. 2d 308, 310 (Fla. 2d DCA 2003) (approving inquiry into prior investigations of a police officer where the testimony gave a “plausible motive” for officer’s misrepresentations regarding an assault incident);
- Henry v. State, 123 So. 3d 1167 (Fla. 4th DCA 2013) (approving cross examination of a victim-witness to establish that the victim was charged with aggravated stalking, that the charge was a third degree felony, that the maximum penalty was five years imprisonment, and that the victim received 18 months of probation as a result of a plea deal with the State);
- Lewis v. State, 623 So. 2d 1205, 1206 (Fla. 4th DCA 1993) (approving cross-examination of a state witness where charges were brought against the witness, but had been recently nolle prossed);
- Jean-Mary v. State, 678 So. 2d 928, 929 (Fla. 3d DCA 1996) (stating that cross examination of a witness about recent charges is permissible even where the charges have been recently nolle prossed and there was no evidence of an agreement between the State and the witness);
- Sarmiento v. State, 371 So. 2d 1047 (Fla. 3d DCA 1979) (holding that the defense’s entitlement to question a police detective about a recent criminal investigation by the State was not altered by the fact that the grand jury returned a “no true bill” against the detective).