Ernest Willis was convicted of various sexual assault offenses that occurred in 1997.1 He appealed those convictions in State v. Willis, by arguing that the court erred in admitting certain portions of a police interrogation recording into evidence.2 The conviction arose from Willis’s interactions with a fifteen-year-old girl who attended his church. On one occasion, Willis had sexual contact with the victim during a driving lesson. About one month later, he had sexual intercourse with the victim at her home.3 In October 1997, the victim disclosed to a neighbor, who was a member of her and the Willis’s church, that she was pregnant with his child. The neighbor notified both the victim’s mother and church pastor. The pastor investigated and met privately with Willis, who acknowledged his relationship with the victim. After receiving confirmation from Willis, the pastor informed the police and the New Hampshire Division for Children, Youth and Families (DCYF).
The investigation stalled in 1997, but was reopened by a detective in 2010. The investigation led to Willis meeting with detectives and participating in a recorded interview. During the interview, an officer told the defendant that he did not “see the motivation for [the victim] to lie.”4 The prosecution sought to admit the tape into evidence and play it for the jury. Willis submitted a pretrial motion to exclude portions of the recorded interrogation from evidence, along with other items, which included the officer’s “motive to lie” statement.5 Willis argued that the statement was the officer’s opinion as to the victim’s—and thus Willis’s—credibility. That is, the recording of the officer’s statement exposed the jury to the officer’s view that the victim had no motive to lie, and thus implied that she was truthful. Willis also argued that the statement should have been excluded because its prejudicial effect substantially outweighed its probative value. The prosecution countered that the officer was not attempting to convince anyone that the defendant was lying; rather, it was an interrogation technique utilized to convince Willis to tell the truth.
The trial court denied the part of Willis’s motion concerning the motive-to-lie statement, but issued a limiting instruction informing the jury that “‘the question part of the tape that you have just heard is only being admitted for the purpose of . . . context, what elicited a particular response of the Defendant,’ and not for the truth of any assertions contained within the officers’ questions.”6 This issue of first impression was appealed to the New Hampshire Supreme Court.
The Admissibility of Statements Made During Police Interrogations Relating to Witness Credibility
At the center of evidence law is the principle of relevance.7 In New Hampshire—like most states—evidence is “relevant” when it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”8 Generally, evidence can only be admissible if relevant, but this is subject to many exceptions.9 One such exception is Rule 403 of the New Hampshire Rules of Evidence, which allows relevant evidence to be excluded if its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”10 Unfair prejudice typically would lead a jury to reach a verdict based on evidence that triggers horror, outrage, or some other strong emotion, as opposed to a logical evaluation of all the evidence presented.11 For example, New Hampshire courts largely prohibit questions regarding a witness’s opinion about the credibility of another witness.12 The courts reason that such questioning is not probative and “such questioning interferes with the jury’s obligation to determine the credibility of witnesses.”13 Nevertheless, whether recorded police interviews implicate the same concerns that underlie the prohibition on witness testimony regarding the trustworthiness of other witnesses is subject to much debate.
There is a chance that by admitting such evidence jurors may confuse an officer’s statement as being submitted to prove the truth of the matter asserted—i.e., that the victim is not lying—instead of just providing context in the case. Presenting these interviews with only the defendant’s responses, however, may harm the recording’s effectiveness by requiring it to be redacted and therefore making it confusing.
Prior to its decision in Willis, the New Hampshire Supreme Court had not considered whether a police officer’s statement during an interrogation was admissible if it concerned a witness’s credibility.14 Several other state and federal courts have addressed the issue and there is no consensus.15 The Kansas Supreme Court has held that a trial court erred by showing the jury a video recording of a police officer commenting on the defendant’s credibility.16 That court concluded that “[a] jury is clearly prohibited from hearing such statements from the witness stand in Kansas and likewise should be prohibited from hearing them in a videotape, even if the statements are recommended and effective police interrogation tactics.”17 In contrast, although the Washington Supreme Court acknowledged that such video recordings are generally inadmissible without a limiting instruction, it held that the lack of a limiting instruction by the trial court was harmless error and thus affirmed the defendant’s conviction.18 Similarly, the Ninth Circuit has held that recordings of police commentary on credibility do not deprive defendants of due process because limiting instructions cure any errors.19 Further, Missouri courts have allowed this type of evidence, reasoning that the recordings are simply part of an interrogation technique.20 Pennsylvania courts, on the other hand, have held the opposite, deciding that explicit or implicit police accusations of untruthfulness must be redacted from a tape before the jury views it.21
Despite this split, most courts have recognized that interrogations are an effective investigatory tool and officers’ statements during interrogations provide context to understand defendants’ responses.22 Few courts, however, have drawn the very fine distinction between statements that claim a witness is lying and those statements or questions that ask a person to comment on a witness’s motive to lie. While the former directly comments on someone else’s truthfulness, which is prohibited by New Hampshire law, the latter explores whether someone else may have a potential bias, which is permissible.
The Willis Court’s Decision
The New Hampshire Supreme Court affirmed Willis’s conviction, and drew different conclusions regarding the admissibility of the various challenged pieces of evidence.23 Regarding the officer’s statement about the victim’s motive to lie, the court held that the danger of unfair prejudice did not substantially outweigh its probative value. Therefore, the trial court’s admission of the statement was not an “unsustainable exercise of discretion.”24 In reaching its decision, the court reasoned that the motive-to-lie statement was probative because it provided context for Willis’s explanations of the victim’s conduct and bias.25 The court further reasoned that the risk of prejudice was minimal because the officer’s statements were not an appeal to the jury’s emotion or an opinion as to the victim’s credibility; instead, they merely posed questions that explored a witness’s potential bias.26
The New Hampshire Supreme Court’s decision initially appears to provide clear guidelines for the admissibility of recorded interrogations. That is, recorded interrogations are admissible when the defendant’s statements may reveal consciousness of guilt or explore a witness’s potential bias, and officers’ statements are necessary to provide context for the defendant’s statements.27 Notwithstanding this guideline, the court’s decision in Willis may have created a slippery slope by characterizing the officer’s statement as exploring bias, rather than as commenting on the victim’s credibility. In Willis, all of the officer’s statements suggested that he could not understand what would motivate the victim to lie.28 However, one could conclude that the officer was explicitly suggesting that he did not believe the victim had a motive to lie, and thus had no bias.29 By permitting this type of evidence, the court allowed an inference that the victim was truthful, and therefore Willis was guilty. A limiting instruction that an officer’s statement is only offered for context—and not for the truth—may assist in eliminating the risk of unfair prejudice. Nevertheless, a law enforcement officer’s statement carries with it an aura of reliability and trustworthiness, which could unduly prejudice a jury.
Courts will surely continue to grapple with whether an officer’s comment on a witness’s credibility should be admissible with a limiting instruction. Some argue that could be enough to taint a jury and render the proceedings fundamentally unfair. Others contend, as the Willis court did, that such evidence provides important context, and that juries can be trusted to heed limiting instructions. Courts should decide these questions on case-by-case bases, utilizing the discretion evidence law provides to the trial judge. Future litigation should continue to address the potential prejudice that defendants may encounter under such circumstances, and provide further guidance to avoid unjust results.
Julianne Campbell, Case Note, Providing Context: New Hampshire Supreme Court Allows Recording of Officer’s “Motive to Lie” Statement into Evidence, 2 Suffolk U. L. Rev. Online 24 (Apr. 20, 2014), http://suffolklawreview.org/campbell-Willis.
- See State v. Willis, 75 A.3d 1068, 1070 (N.H. 2013); N.H. Rev. Stat. Ann. §§ 632-A:2 to :3 (2014) (defining aggravated felonious sexual assault and felonious sexual assault). ↩
- See Willis, 75 A.3d at 1070. ↩
- Id. at 1070-71. ↩
- Id. at 1077. ↩
- See Willis, 75 A.3d at 1071-72, 1078-79 (discussing other evidence challenged, on grounds of religious privilege and references to anonymous reports). ↩
- State v. Willis, 75 A.3d 1068, 1075 (N.H. 2013) (alteration in original). ↩
- 2 Clifford S. Fishman, Jones On Evidence § 11:1, at 258 (7th ed. 1992) (“Evidence that is irrelevant should not be admitted at trial. Evidence that is relevant should be admitted, unless barred by some other rule.”). ↩
- N.H. R. Evid. 401. “There are so many qualifiers in the language of the Rule that nearly anything can be considered ‘relevant’ if the trial court wants to admit it.” Id. reporter’s notes. ↩
- N.H. R. Evid. 402. These exceptions include other rules of evidence, statutes, and constitutional requirements. Id. ↩
- N.H. R. Evid. 403 (providing for exclusion of relevant evidence due to risk of unfair prejudice). ↩
- See State v. Nightingale, 8 A.3d 136, 141 (N.H. 2010) (citing common examples of unfair prejudice). ↩
- See State v. Parker, 999 A.2d 314, 322-23 (N.H. 2010). ↩
- See State v. Lopez, 937 A.2d 905, 911 (N.H. 2007) (concluding trial court erred in permitting prosecutor to ask defendant to comment on witness’s credibility). ↩
- State v. Willis, 75 A.3d 1068, 1076 (N.H. 2013). ↩
- See Lanham v. Commonwealth, 171 S.W.3d 14, 26 (Ky. 2005) (“[I]t is quite difficult to synthesize a majority rule, especially given that the evidentiary rules in these various states differ significantly.”). Compare State v. Boggs, 185 P.3d 111, 121 (Ariz. 2008) (holding no fundamental error in admitting evidence), with State v. Cordova, 51 P.3d 449, 453-55 (Idaho Ct. App. 2002) (deciding admission was improper). ↩
- See State v. Elnicki, 105 P.3d 1222, 1229 (Kan. 2005). ↩
- Id. ↩
- See State v. Demery, 30 P.3d 1278, 1283-85 (Wash. 2001) (en banc). ↩
- See Dubria v. Smith, 224 F.3d 995, 1002 (9th Cir. 2000) (en banc). ↩
- See State v. Palmes, 964 S.W.2d 241, 243 (Mo. Ct. App. 1998). ↩
- See Commonwealth. v. Kitchen, 730 A.2d 513, 521 (Pa. Super. Ct. 1999). ↩
- See Lanham v. Commonwealth, 171 S.W.3d 14, 27 (Ky. 2005) (recognizing majority view). ↩
- See State v. Willis, 75 A.3d 1068, 1070-75, 1079 (N.H. 2013) (holding religious-privilege exception not applicable and comments on anonymous report not sufficient to warrant reversal). ↩
- See id. at 1078; see also N.H. R. Evid. 403. ↩
- See Willis, 75 A.3d at 1078. ↩
- See id. ↩
- See id. at 1078, 1080-82. ↩
- See id. 1077-78 (setting forth officer’s statements). ↩
- See State v. Willis, 75 A.3d 1068, 1077-78 (N.H. 2013). ↩