Schmitz: Error To Ask "Were-they-lying" Questions

In U.S. v. Schmitz, No. 09-14452 (March 4, 2011), the Court reversed convictions for theft concerning a program receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(A), but affirmed mail fraud convictions obtained against an Alabama state legislator who collected $177,000 in salary for a federal program but did little or no work.

Reviewing the issue for plain error, the Court found that it was “error” for the prosecution to repeatedly ask the defendant, on cross-examination, whether prosecution witnesses were “lying” when they testified to matters inconsistently with the defendant’s version of events. The Court held that “were-they-lying?” questions are improper for four reasons.

First, “were-they-lying” questions are not permitted by the Federal Rules of Evidence. They ask a witness to testify about matters beyond the witness’ personal knowledge.

Second, “were-they-lying” questions usurp the jury’s role as the sole maker of credibility determinations.

Third, “were-they-lying” questions put the defendant in a no-win situation of either accusing another witness of lying, or undermining his own version of events.

Fourth, the predominant purpose of the questions is to “make the defendant look bad.”

The Court recognized that in some circumstances a “were-they-lying” question might be appropriate, for example, when the defendant opened the door to such a question by testifying on direct about the truthfulness of another witness.

The error in Schmitz’ case was not “plain” because this was a matter of first impression in the Eleventh Circuit.

Turning to the indictment, the Court held that the counts charging § 666 thefts should have been dismissed, because the government neglected to allege any facts supporting these charges. The Court rejected the argument that the facts alleged in the mail fraud counts could be incorporated into the § 666 counts. The Court noted that each count of an indictment is treated independently, unless it incorporates another count by express reference, which the indictment here failed to do.

The Court found sufficient evidence to support the mail fraud counts, noting that the jury could reasonably infer that three letters Schmitz mailed were in furtherance of her fraudulent scheme to obtain pay for a job at which she did nothing.