Opinion
01 Cr. 848 (SWK)
October 16, 2002
OPINION AND ORDER
The Government moves in limine to preclude certain crossexamination of Investigator William Kelly at trial. Investigator Kelly testified twice previously at suppression hearings in this matter. The Court credited Kelly's testimony at the February 2002 hearing and denied various suppression motions made by the defendant, Jose Luis Perez. At the October 2002 hearing regarding Perez's invocation of his Sixth Amendment right to counsel, the Court granted Perez' a motion to suppress statements he may have made to Kelly during his arrest on August 31, 2001 based upon ambiguities in the testimony as to when the defendant invoked his right to counsel. See October 7, 2002 Opinion and Order at 3-4, 6-7
Contrary to the defendant's assertions that Investigator Kelly's October 2, 2002 testimony was "false" or that his testimony of February 28, 2002 was "perjured, " the Court did make either of those findings in its October 7, 2002 Opinion and Order. As clarified during the October 9, 2002 pre-trial conference, the Court felt that there existed ambiguities as to precisely when Perez requested counsel during his arrest on August 31, 2001.
The Court holds that cross-examination of Investigator Kelly shall be limited to topics other than the credibility finding the Court made in its October 7, 2002 Opinion and Order. To allow questioning as to that credibility finding would be unduly prejudicial to the Government, because the jury may place undue weight and consideration upon the Court's finding and not properly evaluate the trial evidence. See Fed. P. Evid. 403; see also Niper v. Snipes, 7 F.3d 415, 417-18 (4th Cir. 1993) (judicial findings are not covered by Rule 803(8) and "sound judicial policy" requires exclusion under Rule 403 because "judicial findings . . . `would like; be given undue weight by the jury, thus creating a serious danger of unfair prejudice.'") The Government asserts that investigator Kelly will not be testifying at trial as to events surrounding the adverse credibility finding made by the Court. The Court has not found that Investigator Kelly lacks credibility as to the events he testified about on February 28, 2002. Accordingly, cross-examination of Investigator Kelly will be limited to topics unrelated to the those events described in his October 2, 2002 testimony.