We are currently engaged in a trial of a defendant for interference with the duties of a police officer at a public school function, and it is anticipated that the defendant will testify. Can the defendant be impeached as to an underlying intent to prosecute a civil suit aganist the school/officer, etc.?

Have you given 404B notice that you would go into the intent of the defendant to sue the school/police or is this just something that the defense has opened the door to?

Without giving notice to the defendant, I don't think you can go there. You should try however by approaching the bench first and ask to go down that road. Good luck.

Thanks, but aren't we looking at a question of bias or motive (R. 613b), rather than character, provided the proper predicate is laid? If a defendant who testifies is treated as any other witness, Hoyos v. State, 982 SW2d 419, suggests that a defendant can be cross'd about a pending lawsuit if it is tied to the criminal litigation and he has a stake in the outcome. That case, though, dealt with a victim suing a third party in a negligence issue growing out of the criminal act committed by the defendant (and the court did not allow the defendant to get into it).

I don't think you need to give Rule 404(b) notice of evidence offered to impeach the defendant on cross-examination.

Under Rule 613 "Texas Court's allow litigants great latitude in showing any fact that demonstrates 'ill feeling, bias or motive for fabrication' on the part of a witness." Cathy Cochran, Texas Rules of Evidence at 636. There are lots of cases where a defendant is allowed to show that a prosecution witness has filed a civil suit against the defendant. E.g., Cox v. State, 523 S.W.2d 695, 700 (TCA 1975).

The problem is that a defendant's bias not to get convicted is so obvious that its not clear what is added by the civil suit. Moreno v. State, 22 S.W.3d 482, 489 (Tex.Crim.App. 1999)(discussing whether pending deferred could be admitted to show bias, noting "The defendant's credibility was already impeached by his interest as the defendant in the lawsuit.").

The best case I could find for you was Roth v. State, 626 P.2d 583, 585 (Alaska App., 1981) ("the trial court could have reasonably concluded that the defendant's fear that a misdemeanor conviction would handicap a major civil suit involving the same facts, might increase his bias and be relevant to the credibility of his testimony."); State v. Nevens, No. M2000-00815-CCA-R3-CD, 2001 WL 430602 at *8 (Tenn.Crim.App. April 27, 2001) (not published)("the trial court did not err in allowing the state to cross-examine the defendant and his mother regarding whether they had talked to an attorney about suing [store where shoplifting took place].")

I guess I'd be reluctant to try this unless you had a well thought out justification for why it showed bias.

I appreciate the input, and your thoughts are well taken.

I have, on numerous occasions, impeached a defendant regarding pending civil matters, either against the government, company or a private person/entity. I may have a case on it at the office. I'll look in the morning. I recall reading Nevins, and I believe it was the leading case in the area from ALR.