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Wagner v. Georgetown University Medical Center3/8/2001
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After the voir dire, the trial court asked for argument. Mr. Camenisch contended that the prejudicial effect of the proposed impeachment outweighed its probative value. The sole reason that he gave for that contention was that there was still a possibility that the full membership of the AANS might reject the censure recommendation and exonerate Dr. Austin. The court rejected this argument, stating that "what's important here is the basis, the reasons for the determination." Concluding that the proposed impeachment had a legitimate bearing on Dr. Austin's credibility, the court decided to permit the questioning, as well as any explanation that might be offered.
When his cross examination before the jury resumed, Dr. Austin acknowledged that the AANS ethics and executive committees had recommended that he be censured for "unethical practices in the giving of testimony." He said that he was appealing the censure to the full membership of the AANS. The Wagners did not object to this testimony, and they did not request a limiting instruction. Dr. Austin was questioned no further about the matter. He was never asked about the circumstances which underlay his AANS discipline, and the jury was never told the specific nature of the "unethical practices" in which he allegedly engaged.
2. Analysis
" witness may be cross-examined on a prior bad act that has not resulted in a criminal conviction only where (1) the examiner has a factual predicate for the question, and (2) the bad act bears directly upon the veracity of the witness in respect to the issues involved n the trial." Portillo v. United States, 609 A.2d 687, 690-91 (D.C. 1992) (citations and internal quotation marks omitted). The trial court "is vested with broad discretion" in deciding whether to permit such cross examination. Murphy v. Bonnano, 663 A.2d 505, 509 (D.C. 1995) (quoting Roundtree v. United States, 581 A.2d 315, 323 (D.C. 1990)). In exercising that discretion, the trial court should assess both the sufficiency of the examiner's factual predicate and the relevance of the prior bad act to the witness's veracity. The court should also evaluate whether the probative value of the proffered cross examination is substantially outweighed by the danger of unfair prejudice. See (William) Johnson v. United States, 683 A.2d 1087, 1099 (D.C. 1996) (en banc); see also Clayborne v. United States, 751 A.2d 956, 962-64 (D.C. 2000) (discussing test in context of cross examination for bias).
Challenging the impeachment of Dr. Austin on appeal, the Wagners contend that the trial court abused its discretion in failing to inquire or make findings regarding the factual predicate for the impeachment, the relevance of the AANS censure to Dr. Austin's credibility, and the probative value of the evidence versus the danger of unfair prejudice. In making these claims, the Wagners emphasize especially that the nature of Dr. Austin's supposedly "unethical practices" in testifying was never disclosed.
The only reason, however, that the Wagners gave the trial court for resisting the impeachment of Dr. Austin was that the AANS censure was on appeal and not yet final. By itself that reason, though arguably relevant to the court's evaluation of the factual predicate for the impeachment and the danger of unfair prejudice, was insufficient. The Wagners presented no evidence to show that the censure would be reversed on appeal. Even if the censure recommendations of the ethics and executive committees of the AANS were not the last word on the subject, they were a more than sufficient factual predicate for the proposed cross examination of Dr. Austin. See Clayborne, 751 A.2d at 963 (factual predicate requirement is f
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