In discussing the Jussie Smollett story and Kellen Winslow II Trial find out why I said:
- “I am a firm believer in transparency in our government”
- “Exposing a witness’s bias is one of the cornerstones of any cross examination”
A Court in Illinois ordered the release of certain documents related to the Jussie Smollett story. In Texas, the Freedom of Information Act governs requests like these. The stated policy of the act reaffirms the “fundamental philosophy of the American constitutional form of representative government,” that the “government is the servant and not the master of the people.” Here is the full section:
Sec. 552.001. POLICY; CONSTRUCTION. (a) Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.
b) This chapter shall be liberally construed in favor of granting a request for information.
A Cornerstone of Cross Examination
Kellen Winslow II is on trial in California for sexual assault. During the course of the trial, it was discovered that a witness set up a “gofundme” account for one of the victims after her testimony but before the conclusion of the trial. How would a court deal with this situation in Texas? Part of the analysis would include Rule 613 of the Texas Rules of Evidence. Among other proper methods of cross examination, the Rule provides that a party may examine whether a witness has a particular bias or interest that might help jurors in assessing their credibility. Each case must be decided on it’s own merit of course, but here’s the rule in Texas:
Rule 613. Witness’s Prior Statement and Bias or Interest….
(b) Witness’s Bias or Interest.
- (1) Foundation Requirement. When examining a witness about the witness’s bias or interest, a party must first tell the witness the circumstances or statements that tend to show the witness’s bias or interest. If examining a witness about a statement—whether oral or written—to prove the witness’s bias or interest, a party must tell the witness:
- (A) the contents of the statement;
- (B) the time and place of the statement; and
- (C) the person to whom the statement was made.
- (2) Need Not Show Written Statement. If a party uses a written statement to prove the witness’s bias or interest, a party need not show the statement to the witness before inquiring about it, but must, upon request, show it to opposing counsel.
- (3) Opportunity to Explain or Deny. A witness must be given the opportunity to explain or deny the circumstances or statements that tend to show the witness’s bias or interest. And the witness’s proponent may present evidence to rebut the charge of bias or interest.
- (4) Extrinsic Evidence. Extrinsic evidence of a witness’s bias or interest is not admissible unless the witness is first examined about the bias or interest and fails to unequivocally admit it.
Here is an excellent article written by Judge John B. Stevens discussing examining a witness about a prior inconsistent statement called, “Cross Examination: A Look at Impeachment Using Prior Inconsistent Statements.”
For the federal practitioner, click here for a summary of helpful holdings related to the Federal Rules of Evidence by Don Samuel.