UNITED STATES v. PISARI.
|636 F.2d 855 (1st Cir. 1981))|
|COFFIN, C.J. On June
5, 1980 we issued our opinion in this case, reversing appellant's conviction
and holding that rebuttal testimony of a government witness, Coombs, was
improperly admitted, being admissible neither as independent proof of appellant's
identity, Fed. R. Evid. 404(b), nor as impeachment by prior inconsistent
statement. On August 4 we granted the government's petition for rehearing
and withdrew our opinion. After receiving and considering new briefs from
the parties, we arrive at the same result, a reversal, via a different analysis....
The parties, the district court, and this court have been mistaken in various ways in their analysis of the admissibility of agent Coombs' statement. The district court, as noted, admitted the evidence as proof of a prior inconsistent statement relevant to the credibility of the defendant. The government defends the district court's admission of the evidence for impeachment purposes, or as a proper resort to Rule 404(b), the testimony tending to prove that defendant had committed an earlier "strikingly similar'' crime and therefore was the person who committed the crime at bar. Appellant has attacked the testimony as constituting extrinsic evidence of specific conduct, in violation of Rule 608(b). He opposes the application of Rule 404(b), arguing that the testimony was not admitted on this basis and that in any event the evidence of misconduct was neither direct nor competent. As for the impeachment ground, appellant argues that defendant's denial of having engaged in robbery by knife is not necessarily inconsistent with his having falsely told the undercover agent that he had committed such an act. In our earlier opinion, we rejected both proffered grounds for admissibility on the rationale now understandably defended on rehearing by appellant.
In our rethinking of the admissibility of the Coombs testimony, we consider first the impeachment ground specifically relied on by the district court. The government has suggested the proper starting point for analysis by acknowledging that a denial on cross-examination which relates to a collateral matter cannot be disputed by extrinsic evidence, citing McCormick, Law of Evidence, ch. 56, §36 at 70 (2d ed. 1972). See also Saltzburg and Redden, Federal Rules of Evidence Manual, 390 (2d ed. 1977). As one treatise summarizes the test at common law,
The test for collateralness proposed by Wigmore and endorsed by a number of federal courts [footnote omitted] is "Could the fact, as to which the prior self-contradiction is predicated, have been shown in evidence for any purpose independently of the self-contradiction?'' In other words, the [prior inconsistent] statement may be proved if it relates to a matter which the examiner could have proven even if the witness had said nothing on the subject. 3 Weinstein's Evidence, ¶ 607, at 607-69, -70 (1978).
While at common law the test for collateralness was frequently mechanical,
we are advised by commentators that: "The better approach--and one
in accord with the structure of the federal rules--would be to eliminate
mechanical application of the 'collateral' test in favor of the balancing
approach mandated by Rule 403. Evidence at which the collateral test is
primarily directed, which is relevant solely because it suggests that
the witness may have lied about something in the past would generally
be excluded because of its low probative value and its tendency to prejudice
the jury. Evidence of higher probative value would be assessed in terms
of its impact on the jury in light of the particular circumstances presented.''
Id. at 607-71 to -72.
to prove other like crimes by the accused so nearly identical in method as to ear-mark them as the handiwork of the accused. Here much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature. (Emphasis in original.) Id. at 404-92, quoting McCormick, Evidence §157 (1954)....
Our own precedents allowing "other crimes as signature'' evidence
have involved the conjunction of several identifying characteristics or
the presence of some highly distinctive quality. In United States v. Eatherton,
519 F.2d 603, 611 (1st Cir.), cert. denied, 423 U.S. 987 (1975), a gun
and three ski masks taken from defendant corresponded in character and
number to accessories used in a robbery a few days earlier. In United
States v. Barrett, 539 F.2d 244, 248 (1st Cir. 1976), testimony that defendant
possessed expertise in the operation of burglar alarms was admissible
where, in the case at bar, a burglary had been facilitated by bypassing
an alarm, "so distinctive a feature of the stamp burglary'' that
defendant's expertise "reinforced the evidence that linked him to
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