Swastikas & the Confrontation Clause

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We’ve never spent too much time pondering the Confrontation Clause. In fact, it doesn’t appear to have ever been mentioned on the Law Blog. So here goes.

Are a witness’s swastika tattoos admissible as evidence of bias when the witness is testifying in the trial of a Hispanic man? The Second Circuit ruled recently, in U.S. v. Figueroa, that a district judge’s refusal to allow a defense lawyer to cross examine a government witness about his swastika tattoos violated the Confrontation Clause. (However, the appeals court found that the error was harmless and affirmed Figueroa’s conviction.) Here’s a report from the NYLJ.

Edwin Figueroa was on parole in 2004 when parole officers learned from his neighbor that he’d discharged a firearm in his apartment. An unannounced search uncovered a spent shell casing on the floor that matched a sawed-off .22 caliber rifle found just outside in a common hallway. Figueroa was convicted of unlawful possession of a firearm and sentenced as an armed career criminal to 18 years in prison.

One of the witnesses against him was Jonathan Wright, a white man who testified that he bought the rifle at a Wal-Mart and sold it to Figueroa, who is Hispanic. Figueroa’s attorney asked permission to cross-examine Wright about two swastika tattoos to impeach Wright’s testimony as to his bias and credibility.

The district judge denied that line of questioning. “So if it’s meant to show this man has a bad character because he has a swastika and may have some affinity to follow that cause, I think that’s just character evidence, which I don’t think is admissible and I don’t think this wearing of a tattoo goes to truthfulness or untruthfulness,” he said.

On the appeal, the circuit ruled that the judge had abused his discretion in barring the questioning. “Inasmuch as the tattoos suggested that Wright harbored animus against racial or ethic minority groups and their members, they were relevant to and probative of Wright’s credibility, bias and a motive to lie when testifying against Figueroa,” said Judge Sack, citing the Supreme Court case of Delaware v. Van Arsdall for the proposition that the “Confrontation Clause protects the right to engage ‘in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.’”

Nonetheless, the Second Circuit ruled there was an abundance of evidence to convict Figueroa, including a roommate who testified that Figueroa had shown him a sawed-off gun, a neighbor who testified that she had seen a bullet hole in the wall of his apartment, the physical evidence and the testimony of the parole officers.

Jon P. Getz of Muldoon & Getz repped Figueroa. “It’s unfortunate because I think that’s something the jury ought to see,” he said. AUSA Joseph Karaszewski repped the government.

LB Blog Recommendation: For those who just can’t get enough of the Sixth Amendment’s Confrontation Clause, there’s a blog especially for you. The Confrontation Blog, written by Michigan law prof Richard Friedman, is “devoted to reporting and commenting on developments related to Crawford v. Washington,” the case that “transformed the doctrine of the Confrontation Clause.”