US v. Thomas, No. 04-2386 (10/27/06) brings up a long-simmering issue: the degree to which a confidential informant can be questioned his prior stealing of drugs. Applying FRE 608(b) and rejecting a 6th amendment challenge, the court holds that introducing another witness to rebut the informant’s denial that he stole the drugs would be collateral evidence. The court also refers to the advisory notes that separate the issue of “character for truthfulness” from “contradiction” and “bias” which should properly be analyzed under 402 and 403.
Unfortunately, the First drops the ball in its Crawford analysis, and simply holds that:
Second, turning to the Confrontation Clause question, in the post-Crawford v. Washington, 541 U.S. 36 (2004), era, a “balancing of interests” is still called for and the result must depend “upon the circumstances of the case.” White v. Coplan, 399 F.3d 18, 24 (1st Cir. 2005). [(our coverage here)]Here, in refusing to allow a trial within a trial on a collateral matter, the trial court struck the proper balance.
This is disappointing. The First could have done better on this issue.
On the facts of the case, the evidence is held to be sufficient.
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