"Collateral Evidence Doctrine," by Unaiza Riaz

By: Unaiza Riaz
Defense Trial Counsel of West Virginia Newsletter
Fall 2017

The collateral evidence doctrine forbids the introduction of extrinsic evidence to contradict a witness on a collateral matter. Frederick C. Moss, The Sweeping-Claims Exception and the Federal Rules of Evidence, 1982 Duke Law Journal 61-112 (1982). Its purpose is to “limit the scope of impeachment to the introduction of evidence that is relevant to the important issues in dispute.” Id. Therefore, it functions as a corollary to the relevancy requirement; it excludes evidence that is logically relevant to the credibility of witnesses. Id.

“It is a fundamental principle of law that counsel may not introduce extrinsic evidence on a collateral matter for the purpose of impeaching credibility.” David E. Seidelson, Extrinsic Evidence on a Collateral Matter May Not Be Used to Impeach Credibility: What Constitutes Collateral Matter, 9 Rev. Litig. 203, 242 (1990). When a cross-examiner is questioning a witness about a collateral matter, the cross-examiner is bound by the witness’s answer to matters solely affecting credibility. The cross examiner cannot call another witness to refute answers that the witness gave during cross-examination. The basic reason for the rule is that if the cross examiner were able to call a subsequent witness to impeach the first witness’s credibility on the collateral matter, opposing counsel would do the same to the second witness, in an effort to rehabilitate the first witness’s credibility. Id. Thus, a large portion of trial could be solely focused on a collateral issue and create a “trial within a trial,” and thereby distract the jury from the substantive issues of the trial at hand. David E. Seidelson, Extrinsic Evidence on a Collateral Matter May Not Be Used to Impeach Credibility: What Constitutes Collateral Matter, 9 Rev. Litig. 203, 242 (1990).

An example of collateral evidence in West Virginia is the commonly cited State v. McGinnis case. 193 W. Va. 147, 160, 455 S.E.2d 516, 529, 1994 W. Va. LEXIS 235, *34. There, the prosecution spent their opening statement and three full days of their case in chief discussing collateral crime evidence. Id. The Defendant had been indicted for murdering his wife. Id. The State claimed that presenting evidence of Defendant’s other crimes, i.e. circumstantial evidence linking him to the murder, was admissible. Id. Their argument was that evidence of his prior crimes fit within Rule 404(b) to show motive. Id. Specifically, the trial court let in evidence of defendant’s infidelity, mail fraud, and arson. Id. During the course of the prosecution’s case-in-chief, the testimony of approximately fifteen witnesses covered only collateral evidence. Id. In addition to the fifteen witnesses, the prosecution elicited other collateral crime information during the course of the trial. Id. However, the admission of all such collateral evidence was error. Id. Under West Virginia Rule of Evidence 404(b), the trial court was required to, but did not, hold a meaningful in camera hearing and find by a preponderance of the evidence that defendant committed the acts and that the evidence was relevant under West Virginia Rules of Evidence 401 and 402 and not unduly prejudicial under Rule 403. Id.

There was no logical nexus between the massive collateral evidence and the material issues in the case. Id. Despite a limiting instruction, “it was likely that the jury convicted defendant solely because of the collateral evidence.” Id. For example, “the error was exacerbated by the introduction of evidence regarding the federal mail fraud conviction.” Id. That type of collateral evidence’s relevance was not shown from the trial record. Id. Another example was the prosecution’s evidence that the “Defendant was two million dollars in debt to a Huntington bank.” Id. The State contended that the Defendant’s debt, along with the embezzlement and mail fraud conviction, caused him to “panic,” and “become concerned that his wife would learn about his wrongdoings.” Id. Thus, they argued this proved motive under Rule 404(b). Id. The Supreme Court of Appeals of West Virginia (“SCAWV”) held that this argument was “implausible,” and the “Defendant’s problem was not with his wife, but with the Huntington bank and the state and federal prosecutions. Even if his wife learned about these events, as long as she remained his wife, she was prevented by law from being a witness against him at least in State prosecutions.” W. Va. Code, 57-3-3 (1923); State v. McGinnis, 193 W. Va. 147, 162, 455 S.E.2d 516, 531, 1994 W. Va. LEXIS 235, *41.

The United States District Court for the Southern District of West Virginia (“District Court”) has used the State v. McGinnis standard as well and cited it as “the seminal” case in West Virginia for this doctrine. In Kitchen v. Ballard, 2011 U.S. Dist. LEXIS 111171, *1-2, 2011 WL 4528461, the District Court agreed that a Petitioner’s argument lacked merit regarding the SCAWV’s admission of collateral evidence. The Petitioner’s specific ground for relief was that: the State . . . introduce[d] collateral evidence of prior uncharged misconduct against Kitchen without conducting an in camera hearing and making evidentiary findings required by State v. McGinnis and W.V.R.E. 404(b), [and] impugned fundamental fairness and denied Kitchen due process and a fair trial in contravention of his constitutional rights. Kitchen v. Ballard, 2011 U.S. Dist. LEXIS 116364, *7- 8, 2011 WL 4528465. The State introduced evidence of marijuana theft that the Petitioner and co-defendant had allegedly cultivated in order to prove motive for first degree murder. Id. Specifically, the State alleged that the Petitioner stole marijuana from the victims prior to alleged first degree murder in order to show Petitioner’s motive to commit the murder. Id. The District Court held that the SCAWV correctly found that the evidence of marijuana cultivation was properly admitted as res gestae of the crime. Kitchen v. Ballard, 2011 U.S. Dist. LEXIS 111171, *1-2, 2011 WL 4528461. Specifically, the SCAWV correctly held that the collateral evidence was "inextricably intertwined with the offense of murder because it indicate[d] the appellant’s motive for the murder. Thus, there was “a sufficient basis for admission of the testimony concerning marijuana cultivation that it met the exceptions under Rule 404(b) of the West Virginia Rules of Evidence, that the probative value of the evidence outweighed the prejudicial effect, and that, at any rate, the evidence was res gestae of the crimes with which Petitioner was charged.” Kitchen v. Ballard, 2011 U.S. Dist. LEXIS 116364, *93-95, 2011 WL 4528465.