Evidence of bias

Rick Kittel and KU Defender Project student Amy Hall won in State v. Scott, No. 96,879 (Kan. App. Feb. 22, 2008), gettting a new trial in an Atchison County prosecution for sale within 1000' of a school. Although the COA found sufficient evidence to support a conviction, the COA held that the district court improperly excluded some defense testimony:

Scott contends that the trial court erred when it refused to admit testimony at trial that Soden [state's witness] was being criminally investigated for forging Scott's checks. Scott maintains that such evidence was essential to his ability to present a full and complete defense.

. . . .

Here, evidence concerning the alleged forgery came out at the preliminary hearing when Soden admitted that he had signed Scott's name to two checks and had cashed them in March and April 2004. Soden testified that Scott was at home at the time and had told him to write the checks. Nevertheless, defense counsel asserted that Scott was in custody on a parole violation when the checks were written and could not have authorized Soden to write the checks.

Before trial, defense counsel asked the trial court to allow to him present testimony from a law enforcement officer about an ongoing forgery investigation involving Soden and the checks. The trial court denied defense counsel's request on the ground that only evidence of a conviction is allowed for impeachment purposes, not evidence of an investigation. Defense counsel then asked the trial court if he could question Soden concerning his failure to respond to an inquiry directed to him by the officer investigating the forgery. The trial court again denied defense counsel's request on the ground that there had been only an investigation. The trial court told defense counsel that he could characterize the checks as a debt between Scott and Soden to show bias or ill will in that context.

. . . .

Here, while evidence of the forgery investigation against Soden was inadmissible under K.S.A. 60-421 for general impeachment purposes, the evidence was admissible to show Soden's testimony might be influenced by bias or a motive to testify falsely. . . . Here, the evidence concerning the forgery investigation could establish an incentive for Soden to testify falsely against Scott. By testifying against Scott and sending him to prison on the cocaine charges, Soden could possibly avoid the debt he owed to Scott and cast doubt on Scott's claim that he had not given Soden permission to sign and cash his checks.

The COA went on to find that the fact that other impeachment evidence regarding the witness did not render the district court's error harmless:

Nevertheless, none of the evidence pointed to by the State showed the extent of the contentious relationship that existed between Scott and Soden. The friendship had soured to the extent that Soden possibly cashed Scott's checks without his permission and Scott was willing to turn his friend in to the police. Here, Soden was the principal witness used to convict Scott of the charges. Soden was the only witness who could identify Scott as the person who had gotten him the crack cocaine. His credibility was vitally important in this case.

As a result, the COA ordered a new trial.

[Update: the state did not file a PR and the mandate issued on March 27, 2008.]