Evidence - Defendant's Right To Present Exculpatory Evidence

Holmes v. South Carolina, 547 U.S. 319 (2006)

The United States Supreme Court reversed a South Carolina conviction in which the defendant was barred from introducing certain evidence that implicated another person in the commission of the crime. South Carolina had a rule of evidence that barred certain evidence implicating another perpetrator if the state presented forensic evidence that, if believed, strongly supported a guilty verdict. The Supreme Court unanimously (Justice Alito’s first opinion) held that this rule violated the defendant’s Due Process rights. See Washington v. Texas, 388 U.S. 14 (1967); Chambers v. Mississippi, 410 U.S. 284 (1973); Crane v. Kentucky, 476 U.S. 683 (1986); Rock v. Arkansas, 483 U.S. 44 (1987).

United States v. Scheffer, 523 U.S. 303 (1998)

Though a defendant has a constitutional right to introduce evidence in his defense, this is subject to appropriate and rational rules of evidence. In military prosecutions, polygraph evidence is per se inadmissible. The Supreme Court held that this per se ban does not violate the defendants’ constitutional rights, because it is neither arbitrary, nor disproportionate.

Montana v. Egelhoff, 518 U.S. 37 (1996)

The Due Process Clause places limits on the state’s ability to bar evidence, but only when the restriction offends some principle of justice so rooted in traditions and conscience as to be fundamental. Montana’s rule which bars a defense based on voluntary intoxication does not offend the Due Process Clause under this standard.

Taylor v. Illinois, 484 U.S. 400 (1988)

Though the Court held that a defendant may be barred from presenting any alibi evidence because of a willful failure to comply with a state discovery rule requiring pre-trial notice of alibi testimony, the Court canvassed a number of recent decisions which stressed the right of a defendant to present a defense. Among these cases are Crane v. Kentucky, Rock v. Arkansas, Mathews v. United States, and Pennsylvania v. Ritchie.

Rock v. Arkansas, 483 U.S. 44 (1987)

Prior to trial, the defendant was hypnotized in order to improve her memory. The state had a per se prohibition on witnesses testifying if their memory had been hypnotically refreshed. The defendant could only testify to matters “remembered and stated” prior to being hypnotized. This rule could not be applied to the defendant. The defendant has a Sixth and Fifth Amendment right to testify and present a defense which was impaired by the state evidentiary rule in this case.

United States v. Haischer, 780 F.3d 1277 (9th Cir. 2015)

The defendant is entitled to present a defense of coercion, as well as a defense that she lacked the mens rea to commit the offense. The defendant in this case claimed that she suffered abuse at the hands of her boyfriend and explained that this was the basis of her coercion defense. The trial court erreoneously excluded this evidence on the basis that the defendant did not admit that she committed the offense (i.e., that she knew that she was engaged in a fraudulent scheme).

United States v. Bowling, 770 F.3d 1168 (7th Cir. 2014)

The defendant was charged with making a false statement on a firearms form that he filled out in order to purchase a gun. He denied that he was a convicted felon. In fact he was a convicted felon (a fact that he acknowledged at trial), but he claimed that he was laboring under a mistake of fact when he filled out the form, because when he pled guilty to the predicate offense, he thought it was a misdemeanor offense. He sought to introduce evidence at the false statement trial that the prosecutor in the prior case had communicated an offer to the defense attorney in that case offering a misdemeanor disposition which the lawyer then communicated to the defendant. This, he claimed, was the source of his confusion. Excluding this evidence was reversible error.

Alvarez v. Ercole, 763 F.3d 223 (2d Cir. 2014)

The state trial court erred in preventing the defense from cross-examining the lead detective about other investigations that were not pursued. The investigation that was not done was not subject to a hearsay objection, because the issue is not the truthfulness of what was told to a police officer conducting the investigation, but whether there were leads that were not followed. Denying the defense the right to cross-examine the detective violated the Confrontation Clause and was particularly harmful, because the prosecutor arged in closing that the investigation was thorough.

United States v. Certified Environmental Services, Inc., 753 F.3d 72 (2d Cir. 2014)

Federal and State laws regulate the removal of asbestos from buildings, including OSHA regulations and the Clean Air Act. A company that removes asbestos must comply with various laws regarding the method of removal and a separate “monitoring” company must monitor the air after the removal is accomplished. The defendants in this case (a company and several employees) were involved in monitoring asbestos removal and were charged with not properly monitoring the asbestos removal and submitting false monitoring reports. The defense sought to introduce evidence at trial about certain conversations with officials about their monitoring practices, specifically, whether particular monitoring practices were required if the location was not sufficiently “contained” (i.e., the area where the asbestos was being removed was not fully contained which might result in the monitoring causing more contamination in nearby areas). The government objected that these conversations were hearsay. The trial court’s exclusion of this evidence was reversible error. The evidence relating to the conversations with regulators was not offered to prove the truthfulness of the information provided by the regulators, but to prove that the defendants were acting in good faith when they engaged in certain monitoring practices. The fact that some of the conversations occurred after the criminal conduct did not make the evidence irrelevant, because it was consistent with what the defendants claimed was there long-standing understanding of the monitoring rules.

United States v. Delgado-Marrero, 744 F.3d 167 (1st Cir. 2014)

The defense sought to introduce evidence to impeach the testimony of a police officer who had participated in undercover activities that involving luring the defendant (a police officer) into corrupt efforts to provide security for a drug deal. The evidence that the defense proffered involved other efforts of the undercover officer to lure police to engage in corrupt activities. This testimony was offered to support the entrapment defense. The trial court excluded the evidence pursuant to Rule 608(b), on the theory that extrinsic acts of misconduct on the part of a witness are not admissible if the evidence is offered to impeach the credibility of the witness. The First Circuit reversed: Rule 608(b) only limits extrinsic evidence that is offered for the sole purpose of attacking the character of the witness. Rule 608(b) does not limit the defendant’s right to offer evidence that impeaches the witness for bias, or prior inconsistent statements, or to impeach his trial testimony. Quoting from United States v. Abel, 469 U.S. 45 (1984), the First Circuit wrote, “It would be a strange rule of law which held that relevant, competent evidence which tended to show bias on the part of a witness was nonetheless inadmissible because it also tended to show that the witness was a liar.”

United States v. Murray, 736 F.3d 652 (2d Cir. 2013)

In rebuttal, the government presented the testimony of a cell tower expert who provided an opinion (albeit somewhat equivocal) about the defendant’s location based on the cell tower evidence. The defendant sought to introduce surrebuttal evidence but the trial judge denied his request on the basis that the expert’s testimony was not significantly incriminating. The Second Circuit reversed.

United States v. Evans, 728 F.3d 953 (9th Cir. 2013)

The defendant was charged with various offenses involving his alien status and acquiring a false passport and certain federal benefits. The defendant sought to introduce a birth certificate he received from the State of Idaho. The trial court granted the government’s motion in limine excluding the birth certificate on the basis of Rule 403 and Rule 104 and the trial court’s conclusion that the birth certificate was fraudulently obtained. The Ninth Circuit reversed: Rule 104 is not a substantive rule of evidence. It simply is the procedure by which other rules of evidence (e.g., privilege, constitutional, hearsay). The trial court’s conclusion that the birth certificate was fraudulently obtained was not a decision that the trial court could make, especially since it was based on the judge’s credibility determination of the witnesses. When making a decision based on Rule 403, the judge must assume the truthfulness of the proffer regarding the evidence. Excluding the evidence in this case was a constitutional due process violation.

United States v. Hernandez-Meza, 720 F.3d 760 (9th Cir. 2013)

The trial court erred in this case in permitting the government to re-open the evidence and introduce evidence that was no previously produced to the defense as required by Rule 16. The government protested that the defendant’s defense was unexpected (it was revealed when the defendant submitted his proposed requests to charge) and that the additional evidence was needed to refute the newly-revealed theory of defense. The Ninth Circuit held that allowing the government to re-open the evidence was reversible error. The fact that the new defense was factually not realistic is not relevant, the defense had the right to raise this defense and to point out the gaps in the government’s proof. Judge Kozinski wrote,

“[A] criminal defendant, unlike the government, needn't have a good faith belief in the factual validity of a defense. So long as the defendant doesn't perjure himself or present evidence he knows to be false—and Hernandez–Meza presented no evidence at all—he's entitled to exploit weaknesses in the prosecution's case, even though he may believe himself to be guilty. What matters in satisfying the government's burden of proof in a criminal case is not objective reality nor defendant's personal belief, but the evidence the government presents in court. No competent prosecutor would be surprised, based on what he thinks defendant should know, to find defense counsel poking holes in the government's case. The argument is without merit, yet the government made it before the district court, and again on appeal.

The government’s failure to produce the evidence in its Rule 16 production was not justified. The Rule requires the production of all documtns “material to the preparation of the defense.” Information is material even if it simply causes a defendant to completely abandon a planned defense and take an entirely different path. If the defendant in this case knew that government had this evidence, the defendant may not have relied on this defense. Moreover, a defendant need not spell out his theory of the case in order to obtain discovery. Nor is the government entitled to know in advance specifically what the defense is going to be. Discovery must still be provided pursuant to Rule 16(a)(1)(E)(i). The Ninth Circuit held that the trial judge’s summary rejection of the defendant’s Rule 16 argument, as well as his unsupported decision to allow the government to re-open the evidence, required that the case be remanded and that a new judge preside over the case.

United States v. Phillips, 731 F.3d 649 (7th Cir. 2013)

In this en banc decision, the Seventh Circuit held that the defendants should have been permitted to introduce evidence that the defendants (who were charged with making a false statement to a bank in violation of § 1014) were told by their broker that lying in response to certain questions on a loan application form was permissible. Th evidence was relevant to whether the defendants actually knew that their answers were false and whether they believed that answering the questions in that way would “influence” the bank’s decision.

United States v. Garcia, 729 F.3d 1171 (9th Cir. 2013)

The defendant was charged with murder and involuntary manslaughter as a result of his killing a person with whom he was fighting. The defendant sought to introduce evidence that the victim had previously engaged in various acts of violence towards others and the defendant knew of these other incidents. The trial court erred in excluding this evidence. In a self defense case, the defendant’s knowledge of the victim’s prior assaultive behavior is relevant to show his state of mind in shooting the victim. See also United States v. Saenz, 179 F.3d 686 (9th Cir. 1999); United States v. James, 169 F.3d 1210 (9th Cir. 1999).

Harris v. Thompson, 698 F.3d 609 (7th Cir. 2012)

The trial court’s decision to exclude a defense witness who was 6-years old based on the child’s competence as a witness violated the defendant’s Compulsory Process rights to present evidence in his defense. The child had critical exculpatory evidence and the jury should have been allowed to evaluate the credibility issue. The fact that the child believed in the tooth fairy, Santa Claus and Spiderman did not render him unfit to testify. (Part of the child’s apparent confusion about who was “real” and who was not “real” was the way that questions were posed, which drew a distinction between characters in movies that were cartoons, or animated, and characters who were played by live actors). The state trial court violated the state statute that placed the burden of proving incompetency of a witness on the state, rather than proving competence of witness on the party calling the witness, as the court did in this case. In addition, the court held that the trial attorney provided ineffective assistance of counsel in failing to properly litigate the competency issu and to interview and prepare the child to testify. This case contains an encyclopedic review of Compulsory Process cases.

Cudjo v. Ayers, 698 F.3d 752 (9th Cir. 2012)

The defendant was charged with murder. His brother was a key prosecution witness (his testimony at a preliminary hearing implicating the brother was offered at trial, though he refused to testify at trial). At trial, the defense sought to introduce the testimony of another man who was prepared to testify that the brother had confessed to him that he was the perpetrator, not the defendant. The trial court excluded this testimony because it was too unreliable, despite the fact that it was a statement against penal interest that would be admissible under that exception to the hearsay rules. Based on Chambers v. Mississippi, 410 U.S. 284 (1973), the Ninth Circuit granted the writ.

Jackson v. Nevada, 688 F.3d 1091 (9th Cir. 2012)

The defendant was charged with raping his ex-girlfriend. He sought to introduce evidence of numerous false allegations of rape (including the testimony of police officers who had responded to earlier claims of rape). The state court excluded this evidence. In part, the exclusion was based on the defendant’s failure to comply with a state law requiring pretrial notice of the intent to introduce prior false allegation evidence. See also Holley v. Yarborough, 568 F.3d 1091 (9th Cir. 2009). THE SUPREME COURT REVERSED in Nevada v. Jackson, 133 S. Ct. 1990 (2013). The Court held that the Nevada rule of evidence (comparable to Rule 608(b) FRE) that barred extrinsic evidence of a witness’s prior acts of dishonesty was not unconstitutional. The Court also noted that the state rule also permitted such evidence of prior false allegations if the defendant provided pretrial notice, a rule that the Court held was properly enforced in the state courts.

United States v. Carmen, 697 F.3d 964 (9th Cir. 2012)

Deporting a potentially exculpatory witness prior to providing the defense an opportunity to interview the witness violates the defendant’s right to compulsory process and to due process. The defendant, however, is required to show that the government acted in bad faith, a showing that was, in fact, made in this case.

United States v. Ibisevic, 675 F.3d 342 (4th Cir. 2012)

The defendant carried over $10,000 into an international flight from Dulles Airport heading to Bosnia. An ICE agent who had a Puerto Rican accent questioned the defendant and his mother (the mother spoke no English) about whether they were carrying cash. The defendant responded that they had $5,000.00. During this “questioning” the defendant turned to his mother and translated, “They are asking how much the luggage is worth if it is lost.” The defendant and his mother actually had about $40,000 in the luggage, on their persons and in the mother’s purse. At trial, the defendant claimed that he did not understand the question and that the mother’s testimony (about what the defendant said to the mother) was admissible as a “present sense impression” to show a lack of understanding. The trial court held that this was hearsay and inadmissible. The Fourth Circuit reversed: The defendant’s statement was not hearsay (it was not offered for the truth of the matter asserted; it nevertheless would qualify as a present sense impression; and it was important to his defense regarding his lack of understanding that he was making a false statement or knowingly failing to file a currency form in violation of the law.

United States v. Waters, 627 F.3d 345 (9th Cir. 2010)

The defendant was charged with arson in connection with her activities with an environmental “terrorist” group. After she was first contacted by the FBI, she called her cousin and told him that the FBI might contact him and told him, “I am innocent” and instructed him to “tell them the truth.” The first statement “I am innocent” is hearsay and the defendant was properly prohibited from introducing that out-of-court statement. But the second statement, urging her cousin to tell the truth, is not hearsay, because there is no assertion of fact that was being offered. That part of her statement was not hearsay and should have been admitted to show the defendant’s lack of guilty mindset. In a separate holding, the Ninth Circuit held that the trial court erred in excluding evidence of a document produced by the defendant that demonstrated her peaceful agenda in promoting change in environmental policies. Excluding this document was particularly an abuse of discretion given the trial court’s decision to allow the government to introduce various pro-anarchist and violence-promoting articles that the defendant supposedly gave to a co-conspirator.

Lunbery v. Hornbeak, 605 F.3d 754 (9th Cir. 2010)

Relying on Chambers v. Mississippi, 410 U.S. 284 (1973), the Ninth Circuit held that excluding evidence that a witness heard another person confess to the murder with which the defendant was charged was reversible error. If, as in this case, the hearsay evidence is reliable and the declarant is unavailable, excluding the evidence under a state rule of evidence violates the federal Due Process Clause.

United States v. Pineda-Doval, 614 F.3d 1019 (9th Cir. 2010)

This case involves a charge of smuggling illegal aliens resulting in death. The question presented to the Ninth Circuit is whether the defendant’s offense “caused” the death of the aliens. The aliens were in the van which the police were chasing. The police placed “spike strips” on the road as part of the pursuit and this resulted in the van crashing, killing numerous illegal aliens in the vehicle. The Ninth Circuit held that excluding evidence of the policies that governed the use of spike strips was error, because the question of proximate cause was hotly disputed. Harmless error.

United States v. Stever, 603 F.3d 747 (9th Cir. 2010)

The defendant was charged with growing marijuana on his property. He defended on the basis that Mexican drug organizations must have planted the marijuana on his property. He made a Rule 16 request for any information in the possession of the government about the practice of Mexican drug organizations planting marijuana on private property in this district. The government refused to provide the information. The Ninth Circuit held that the lower court’s failure to direct the government to produce this information was reversible error. The error was compounded by the lower court’s order directing both parties not to mention anything about Mexican drug organizations, because any such evidence was speculative. The Ninth Circuit held that the defendant is entitled to present evidence of an alternative perpetrator and the lower court may not bar the defendant from presenting his defense.

Gagne v. Booker, 606 F.3d 278 (6th Cir. 2010)

The Sixth Circuit held that the Michigan State Rape Shield Statute, as construed by the Michigan appellate court, was unconstitutionally applied. The defendant was charged, along with a co-defendant, of raping the defendant’s former girlfriend. The defendant sought to introduce evidence (in support of his consent defense) that he and the girl had participated in group sex previously. The Michigan court held that this evidence was barred under the state Rape Shield statute. The Sixth Circuit held that this evidence could not be excluded: the Due Process Clause assures a defendant that he may introduce evidence that is highly relevant and indispensable to the central dispute. REHEARING EN BANC GRANTED 7/20/2010. DECISION OF THE PANEL VACATED AND THE CONVICTION WAS REINSTATED. 680 F.3d 493 (6th Cir. 2012).

Barbe v. McBride, 521 F.3d 443 (4th Cir. 2008)

The defendant was charged with child sexual assault. An expert testified that the victim exhibited signs of sexual abuse. The defendant sought to introduce evidence that the defendant had been abused by other adults (and the child had made prior accusations about these prior assaults). Relying on the state rape shield statute, the trial court excluded the evidence. The Fourth Circuit granted the writ. Excluding evidence that would provide an alternative explanation for the expert’s findings violated the defendant’s right to confront the evidence against him. Pursuant to Michigan v. Lucas, 500 U.S. 145 (1991), the trial court must make a case-by-case determination whether the state evidence rule trumps the Sixth Amendment. In this case, the state trial court invoked a per se ban on any evidence of prior sexual activity of the victim.

Ferensic v. Birkett, 501 F.3d 469 (6th Cir. 2007)

Defense counsel was directed to furnish his expert witness reports to the state two months prior to trial, but waited until eleven days before trial to submit the report. The state trial court excluded the evidence. The Sixth Circuit affirmed the district court’s granting of a writ of habeas corpus. The exclusion of the evidence in this case operated to deny the defendant the Constitutional right to present a defense. See generally Taylor v. Illinois, 484 U.S. 400 (1988). Less severe sanctions were available to remedy the defense attorney’s error that would have protected the defendant’s rights. This is especially so, because there was an inadequate showing that the state was prejudiced by the tardy disclosure.

Christie v. Hollins, 409 F.3d 120 (2d Cir. 2005)

The prior testimony of a defense witness should have been admitted in this case in light of the showing by the defense that diligent efforts had been made to locate the witness and she had not been located.

United States v. Boulware, 384 F.3d 794 (9th Cir. 2004)

The defendant was charged with tax evasion and related charges. He claimed that the money that he allegedly skimmed from the company (and gave to his girlfriend) was actually legally still owned by the company (and simply being held by the girlfriend) and was therefore not taxable (i.e., there was no transfer of the money for tax purposes from the company to the defendant or the girlfriend). In a state court lawsuit, the state court agreed that the funds were still owned by the company. The trial court in the federal prosecution erred in excluding evidence of the state court judgment. The court also concluded that the state court judgment was not hearsay because under Rule 803(15) it was a statement in a document affecting an interest in property.

United States v. Hayes, 369 F.3d 564 (D. C. Cir. 2004)

The government introduced a tape that suggested that the defendant was participating in a cover-up. The defendant responded by offering a tape of a conversation shortly thereafter during which he told the person on the phone, “Just tell the truth.” The government persuaded the trial court that this was hearsay. The trial court erred in excluding this testimony. The defendant’s statement was not hearsay, because it was not offered to prove the truth of what he said, but rather to show that he instructed others to tell the truth. Harmless error.

United States v. Stephens, 365 F.3d 967 (11th Cir. 2004)

The defendant was charged with selling methamphetamine to an informant. The transactions were recorded on videotape, but the content of the tapes was hard to discern and did not clearly reveal the defendant handing any drugs to the informant. Nevertheless, the police testified that they searched the informant before he met with the defendant and he had money, but no drugs; and when he returned from the meetings, he had drugs and no money. Prior to trial, the informant died of natural causes. The defendant attempted to offer evidence at trial that the informant was regularly using, buying and selling drugs during the time period of the undercover work. Defense counsel explained that his theory was that the informant actually hid drugs on his person or in his car before he had the meetings with the defendant and he was tricking the police into believing that he was actually acquiring the drugs from the defendant. The trial court excluded the evidence, holding that this was an improper method of impeaching the informant – through prior bad acts evidence. The Eleventh Circuit reversed, holding that this evidence was admissible in support of the defendant’s theory that the informant had a source of drugs which explained how he had the drugs to give to the agents. The evidence was also admissible under Rule 404(b) – defendant’s use of Rule 404(b) – to show the informant’s other acts that explained his opportunity to commit the deception perpetrated on the police.

United States v. Moussaoui, 365 F.3d 292 (4th Cir. 2004)

In this celebrated 9/11 trial of the suspected terrorist, the defendant sought access to witnesses who were in custody of the U.S. military as suspected Al Quaeda terrorists. He sought access to them to interview them, and to take their depositions pursuant to Rule 15, Fred.R.Crim.P. The Fourth Circuit agreed with the lower court and held that the Compulsory Process Clause, as well as the defendant’s due process right to present a defense necessitated granting him access to these witnesses – or, in the alternative, granting some other relief (such as dismissal of the death penalty) if such access was denied as a matter of national security. See also 382 F.3d 453 (4th Cir. 2004).

Chia v. Cambra, 360 F.3d 997 (9th Cir. 2004)

It is clearly established federal law that when a hearsay statement bears persuasive assurances of trustworthiness and is critical to the defense, the exclusion of that statement may rise to the level of a due process violation. Chambers v. Mississippi, 410 U.S. 284 (1973). In this case, two DEA agents were murdered during an undercover deal. During the ensuing arrest of one of the perpetrators, the perpetrator was shot. He made several statements, however, some shortly before being wheeled into surgery and others after he was out of surgery. In each of these statements, he revealed who was involved in the murder. The defendant in this case was not named as a member of the conspiracy. At trial, the witness refused to testify. The defendant sought to introduce the witness’s statements. The Ninth Circuit held that there were sufficient indicia of trustworthiness associated with these statements to support their admission. Excluding this evidence violated the defendant’s due process right to present a defense.

United States v. Buffalo, 358 F.3d 519 (8th Cir. 2004)

The defendant contended that another man was the perpetrator of the assault with which he was charged. He called the other man to the stand and he denied being the perpetrator. The defendant then sought to call two other witnesses who were prepared to testify that the other man had confessed to them. The district court excluded the evidence because the “prior inconsistent statements” would have been inadmissible hearsay. Rule 613(b) allows a party to use a prior inconsistent statement to impeach a witness, but if the witness is called to the stand for sole purpose of impeaching him, the “impeachment” is really a subterfuge for admitting the hearsay. Nevertheless, the Eighth Circuit holds that because there are no Confrontation Clause concerns when the defendant (as opposed to the government) seeks to engage in this type of subterfuge, the proper course for the trial court is to employ the Rule 403 balancing test. In this case, because of the unique facts, the Eighth Circuit held that the defendant should have been permitted to introduce the prior inconsistent statement of the witness.

United States v. Turning Bear, 357 F.3d 730 (8th Cir. 2004)

The trial court erred in excluding a defense witness who was prepared to testify that in her opinion, the child-victim, was untruthful and “didn’t always tell the truth.” The witness in this case had a basis for forming the opinion (thus qualifying under Rule 701 to offer opinion testimony). Excluding this testimony violated the defendant’s constitutional right to offer evidence in his behalf.

United States v. Cruz-Garcia, 344 F.3d 951 (9th Cir. 2003)

The defense attempted to prove the facts underlying the witness’s prior convictions to show that he had the capacity to commit the offenses with which the defendant was charged. The trial court erroneously excluded this evidence. The evidence was admissible under Rule 404(b) to prove the witness’s capacity to commit the crime. Indeed, the prosecutor had repeatedly argued that the witness was too stupid to have committed the crime without the defendant’s help. The court noted that Rule 404(b) should be more liberally interpreted when the evidence is being offered against a witness, as opposed to the defendant.

United States v. Alvarez-Farfan, 338 F.3d 1043 (9th Cir. 2003)

The trial court erred in barring the defendant from introducing evidence of a motel receipt and a debriefing statement that was written by a witness to prove the witness’s handwriting. The jury is entitled to make a handwriting comparison.

Lewis v. Wilkinson, 307 F.3d 413 (6th Cir. 2002)

The Sixth Circuit held that the application of a state rape shied statute in this rape prosecution denied the defendant of his Sixth Amendment right of Confrontation. In the victim’s diary, there were various references to her other sexual conduct and the fact that she was apparently viewed by boys as a “nympho.” She wrote, “I’m just not strong enough to say no to them. I’m tired of being a whore. This is where it ends.” Excluding this evidence was reversible error.

Franklin v. Henry, 122 F.3d 1270 (9th Cir. 1997)

The defendant was charged in state court with child molestation. The victim had previously accused her mother of acts of sexual abuse similar to those alleged against the defendant. Barring the defendant from introducing this impeaching evidence was error of constitutional proportions requiring that the writ of habeas corpus be granted.

United States v. Mulder, 147 F.3d 703 (8th Cir. 1998)

Good faith constitutes a complete defense to a charge of fraudulent intent. In this case, the defendant was charged with bank fraud. At trial, he offered a financial statement which appeared to accurately reflect his assets and which was contained in the bank’s lending file. Excluding this document, even though it was internally inconsistent, was reversible error.

United States v. Lampkin, 159 F.3d 607 (D.C. Cir. 1998)

The trial court repeatedly – and erroneously – instructed the jury that two juvenile witnesses for the government could not be prosecuted by the AUSA, thus negating the defendant’s theory that the witnesses were testifying for the government in exchange for not being prosecuted. This erroneous instruction deprived the defense of its ability to mount a defense and was reversible error.

United States v. Gonzalez-Maldonado, 115 F.3d 9 (1st Cir. 1997)

The court retained a psychiatrist to determine if a co-defendant was competent to stand trial. The co-defendant was declared incompetent, but his recorded statements to undercover officers, statements that incriminated the defendant, were critical evidence for the prosecution. The defense wanted to call the psychiatrist as their witness to establish the mental illness of the co-defendant – a mental illness that led the witness to exaggerate, according to the psychiatrist. Excluding this testimony was reversible error. The psychiatrist was obviously qualified as an expert and his testimony related directly to the veracity of the declarant (i.e., the recorded statements of the incompetent co-defendant).

United States v. Mulinelli-Navas, 111 F.3d 983 (1st Cir. 1997)

The defendant, a loan officer at a bank, was charged with making fraudulent loans to car dealers. With respect to one of these counts, the defendant proffered evidence that the dealer was brought to the bank by a senior bank officer and that the defendant may have been negligent in making the loan, but the failure to adequately determine whether the dealer was qualified was due to the fact that he was brought to the bank by the senior officer. Excluding this evidence was reversible error on this count.

United States v. Shay, 57 F.3d 126 (1st Cir. 1995)

The defendant was accused of attempting to bomb his father’s car. He provided a statement to the police admitting his guilt. At trial, the defense sought to introduce evidence from a psychiatrist that the defendant suffered from a mental disorder that causes its victims to make false and grandiose statements without regard to the consequences – pseudologia fantastica. The trial court erred in excluding this evidence. The evidence was admissible under Rule 608(a) because the evidence was admissible opinion evidence relating to the character of a witness; it was admissible under Rule 405 to prove a relevant character trait; and it was admissible under Rule 702 because such expert testimony was necessary to contradict the common sense notion that people do not generally make untrue inculpatory statements.

United States v. Biaggi, 909 F.2d 662 (2d Cir. 1990)

If a defendant rejects an offer of immunity in exchange for testifying, and is then prosecuted, this evidence is admissible show defendant’s “consciousness of innocence.” This evidence is not barred by Rule 410.

United States v. Bailey, 834 F.2d 218 (1st Cir. 1987)

A defendant was accused of trying to bribe a juror. He attempted to interview other members of the jury panel as a means of probing the character of the juror who made the accusation. The trial court prohibited the defendant from questioning the other jurors. The First Circuit reverses, holding that the defendant had a right to interview these “witnesses.” The Court relied on the reasoning of Roviaro v. United States, and its analytical framework for determining whether to disclose the identity of an informant.

Lyons v. Johnson, 99 F.3d 499 (2d Cir. 1996)

One of two men shot the victim. The defendant and the other man resembled each other, were wearing similar jackets on the day of the shooting and both had gold-capped teeth. At the defendant’s trial, he requested permission to “exhibit” the other man to the jury. This request was denied, because (among other reasons) the other man asserted his Fifth Amendment right not to testify. The trial court erred. Moreover, offering the defendant the opportunity to introduce a photograph of the other man was not an adequate substitute.

Justice v. Hoke, 90 F.3d 43 (2nd Cir. 1996)

The state trial court erred in excluding testimony that would have demonstrated the key state witness’s motivation to lie about the defendant. The excluded evidence established that the state witness was a drug dealer for the defendant and had a dispute about money.

United States v. Doe, 63 F.3d 121 (2d Cir. 1995)

The defendant asked that the court be closed for his testimony, as well as other portions of the trial, so he could relate to the jury the extent of his cooperation with the government, which he claimed supported his “public authority” defense. The trial court denied his request for closure which resulted in the defendant’s refusing to reveal this information (for fear that he would be the victim of retaliation). Even though the defendant could not point to a direct threat that he had received, the court of appeals holds that the district court should have more carefully evaluated the defendant’s request. A remand was required for more findings.

United States v. Blum, 62 F.3d 63 (2d Cir. 1995)

The defendant was charged with creating false logbooks in violation of certain EPA laws. He offered evidence at trial that one of his employees was engaged in a series of thefts at the company and had an independent motive to falsify the log books to cover-up his thefts. The trial court erred in excluding this evidence. The evidence was admissible under Rule 404(b) to prove the witness’s motive to commit the offense and was probative on the issue of who the actual culprit was who committed the offense.

United States v. Diallo, 40 F.3d 32 (2d Cir. 1994)

The defendant was arrested smuggling heroin into the country from Africa. He claimed that he thought he was smuggling gold dust. At trial, the defendant sought to introduce expert testimony about the profitability of smuggling gold dust out of Benin, Africa. The trial court erred in excluding this testimony. The trial court held that the expert had never been to Benin, therefore, he was not qualified to offer expert testimony about the economics of smuggling gold dust out of that country. Pursuant to United States v. Onumonu, 967 F.2d 782 (2d Cir. 1992), such expert testimony is relevant. Moreover, though the expert in this case had never been to Benin, he had advised neighboring countries about exporting gold and was aware of the profits to be made by smuggling gold out of Africa, into the United States.

United States v. Onumonu, 967 F.2d 782 (2d Cir. 1992)

The defendant was caught at the airport with heroin which he ingested in condoms. The defendant claimed that he thought he was smuggling diamonds into the country. He sought to introduce evidence from an expert that Nigerians frequently smuggle diamonds out of the country. The trial court erred in excluding this expert testimony. It was relevant and beyond the ken of the average juror.

United States v. G.A.F., Corp., 928 F.2d 1253 (2d Cir. 1991)

During the second trial of this securities fraud trial, the defense sought to introduce a copy of the bill of particulars which had been provided prior to the first trial. The defense theorized that this would prove that the government at one time believed, and stated, that its proof established something different from what it claimed at the retrial. The Second Circuit held that the trial court erred in excluding this evidence.

United States v. Vargas, 920 F.2d 167 (2d Cir. 1990)

Though deciding the case on other grounds, the appellate court addressed the question of how a defendant should raise a claim that his attorney refused to call him to testify at trial. Without deciding the question, the court concludes that the defendant’s failure to complain at trial does not amount to a waiver of this claim that he was denied the constitutional right to testify.

Rosario v. Kuhlman, 839 F.2d 918 (2d Cir. 1988)

The defendant perpetuated the testimony of a witness who claimed that the defendant and his purported girlfriend (prosecution witness) were acquainted at the time of the robbery offense. That witness refused to honor the defendant’s subpoena and evaded the local police who attempted to secure his presence. The Second Circuit holds that the defendant should have been permitted to use the deposition testimony because of the witness’s refusal to appear in court.

Gilmore v. Henderson, 825 F.2d 663 (2d Cir. 1987)

The state trial court’s exclusion of testimony that would have explained the defendant’s flight and also contradicted a portion of another witness’ testimony was not harmless.

Virgin Islands v. Mills, 956 F.2d 443 (3rd Cir. 1992)

The trial court was advised that a witness who had previously refused to testify had changed his mind. The judge did not inform the parties of this. The witness never did testify, but would have testified in a manner which would have exculpated the defendant. The trial court’s actions amounted to a denial of defendant’s right to compulsory process. The Court of Appeals analogized the court’s actions to the actions of a prosecutor who hides an important defense witness, or intimidates a witness who would have testified favorably to the defense.

United States v. Stevens, 935 F.2d 1380 (3rd Cir. 1991)

The defendant was charged with robbery and sexual assault and attempted to offer the testimony of the victim of a similar crime who did not identify the defendant as his assailant. The defendant’s syllogism was as follows: Because of the similarity of the two crimes, one person probably committed both; the defendant did not commit the other crime; therefore, he did not commit the charged offense. The Third Circuit reviewed the case law on this subject from various state courts and concluded that the trial court erred in excluding the evidence. Characterizing the evidence as “reverse Rule 404(b)” evidence, the court held that it is relevant and, assuming the defendant can lay the proper foundation, must be admitted. The court concluded, “Our resolution of this issue is informed by our general belief that a criminal defendant should be able to advance any evidence that, first, rationally tends to disprove his guilt, and second, passes the Rule 403 balancing test. To garner an acquittal, the defendant need only plant in the jury’s mind a reasonable doubt.”

United States v. Cavin, 39 F.3d 1299 (5th Cir. 1994)

The defendant, an attorney, was charged with fraud in connection with his efforts to help his client obtain regulatory approval for an insurance company. The attorney sought to offer evidence of the ethical problems involved in representing a client in such regulatory proceedings and also offered evidence of the uncertainties of the regulations in this area. The absence of clear guidance as to what an attorney should do when he becomes aware of his client’s fraud was also offered. The trial court erred in excluding this evidence. Such evidence was probative of the defendant’s state of mind and thus was probative of his intent to defraud. See United States v. Kelly, 888 F.2d 732 (11th Cir. 1989); United States v. Garber, 607 F.2d 92 (5th Cir. 1979)(en banc).

United States v. Gaumer, 972 F.2d 723 (6th Cir. 1992)

Pursuant to Cheek, the defendant should have been given an opportunity to read tax protestor articles into the record, as well as portions of the Congressional Record and old Supreme Court decisions in order to show the basis of his belief that he was not obligated to pay taxes.

United States v. Poindexter, 942 F.2d 354 (6th Cir. 1991)

It was reversible error to preclude the defense attorney from arguing about the lack of fingerprint evidence on the container in which the cocaine was found. The attorney simply wanted to argue that the government’s failure to present fingerprint evidence – after it was determined that the container had been “dusted” – was sufficient to raise a reasonable doubt.

United States v. Roberts, 887 F.2d 534 (6th Cir. 1989)

In defendant’s drug prosecution, he sought to introduce psychological testimony that he did not intend to violate the law but was simply attempting to apprehend drug dealers. Though the error was harmless given the strength of the government’s case, this evidence should have been permitted.

United States v. Montgomery, 100 F.3d 1404 (8th Cir. 1996)

When the police opened the defendant’s luggage pursuant to a consent search at a train station they discovered cocaine. The defendant claimed that the shirt in which the cocaine was wrapped did not belong to him and the cocaine must have been placed in his suitcase by his companion (who was not charged). At trial, the government compelled the defendant to try on the shirt, which he did. The defendant sought to compel the companion to try on the shirt, as well. The trial court denied this request. This was error. The companion, a witness, had no Fifth Amendment right to refuse to try on clothing. Even though the witness may have refused to testified, this did not affect the defendant’s right to have him try on the shirt in front of the jury.

United States v. Bear Stops, 997 F.2d 451 (8th Cir. 1993)

The defendant was charged with child sex abuse. The child had previously suffered abuse at the hands of another. The defendant sought to introduce detailed evidence of the prior offense in order to explain why the victim exhibited certain symptoms of a sex abuse victim. Limiting this evidence was reversible error. Such evidence fell within Rule 412’s exception for evidence which is “constitutionally required.”

United States v. Morales, 108 F.3d 1031 (9th Cir. 1997)

The defendant was charged with making false entries in a union ledger. The falsity of the information was not contested at trial. Whether the errors were mistakes or were intentional, however, was disputed. The defendant offered expert accounting testimony that the defendant lacked basic bookkeeping understanding. The trial court committed reversible error in excluding this evidence. Rule 704 prohibits the introduction of expert testimony (psychiatric, or otherwise) on the issue of whether the defendant had the mental state or condition constituting an element of the crime charged or of a defense thereto. Nevertheless, the testimony offered in this case was not that the defendant did or did not intend to make false entries. Rather, the testimony related to a “predicate” matter: the defendant’s understanding of bookkeeping principles.

United States v. Young, 86 F.3d 944 (9th Cir. 1996)

Generally, a criminal defendant is not entitled to compel the government to grant immunity to a witness. In order to fall under an exception to this rule, defendant must show that: (1) the testimony was relevant; (2) the government distorted the judicial fact-finding process by denying immunity. In this case, a witness was prepared to testify for the defense (if immunized) that he overheard a government witness state that he was going to offer false testimony to inculpate the defendant. The failure to immunize this witness was reversible error.

United States v. Crosby, 75 F.3d 1343 (9th Cir. 1996)

Someone brutally assaulted the victim. The defendant was charged with the assault, but offered evidence that the victim’s husband lived in the vicinity, had previously beaten the victim, had previously been arrested for beating the victim, and that the victim had reported that the husband repeatedly beat her. The trial court committed reversible error in excluding this evidence. Fundamental standards of relevancy require the admission of testimony which tends to prove that a person other than the defendant committed the crime that is charged.

United States v. Thompson, 37 F.3d 450 (9th Cir. 1994)

The defendant was arrested at the L.A. airport and her suitcase contained several kilos of crack. She claimed that she was an unwitting mule – her friend gave her the suitcase to bring to a person in Cleveland. The government moved in limine to exclude evidence that the government failed to take any fingerprints from inside the suitcase. The trial court erred in granting this motion: Evidence comes in various forms, some stronger and some weaker, and a defendant is entitled to argue to the jury that the government’s failure to present a particular type of strong evidence against her – e.g., fingerprints – weakens its case. Where, as here, the defense is lack of knowledge, the absence of fingerprint evidence may be argued in closing argument.

United States v. Thomas, 32 F.3d 418 (9th Cir. 1994)

The defendant bought fruit from growers and sold it to wholesalers. He kept a percentage and remitted the balance back to the growers. At some point, he decided to start averaging the prices. He would then send a fixed amount to the growers, sometimes paying them more than he actually received, sometimes keeping more than the agreed upon commission. By an agreed upon final accounting, this averaging scheme resulted in losses to him of over $700,000. Nevertheless, the government indicted him for mail fraud. At trial, the government called as witnesses certain growers who were underpaid. The defendant was denied the right to call growers who were overpaid, in order to prove that there was no “scheme to defraud.” This was reversible error. Such testimony would have been relevant in establishing the defendant’s intent in devising the averaging system. Individuals accused of criminal behavior should be permitted to present, within reason, the strongest case they are able to marshal in their defense. See also United States v. Garvin, 565 F.2d 519 (8th Cir. 1977); United States v. Foshee, 569 F.2d 401 (5th Cir. 1978); United States v. Etheridge, 948 F.2d 1215 (11th Cir. 1991).

United States v. Blaylock, 20 F.3d 1458 (9th Cir. 1994)

The defendant was charged with being a felon in possession of a firearm. The police testified that when they were called to a domestic disturbance scene, they saw the defendant with a gun and that he ran back inside. The defendant sought to introduce medical records which showed that he was infirm and incapable of “running.” The trial court excluded the evidence on the basis of a lack of foundation. The government, however, had stipulated to the authenticity of the documents. On appeal, the government argued that the evidence could have been excluded under Rule 403. This is wrong, however: the evidence tended to show that the defendant could not run, that he needed a cane to walk and that he was limited in his mobility. The evidence was therefore relevant to his defense and should not have been excluded.

United States v. Rahm, 993 F.2d 1405 (9th Cir. 1993)

At defendant’s possession of counterfeit currency trial, she sought to introduce the testimony of an expert who would testify that the defendant “showed a consistent tendency to overlook important details” based on tests the psychiatrist administered. The testimony was improperly excluded by the trial court. Under Rule 12.2, notice of the intended use of expert testimony is required where the expert will testify about a mental condition which bears on the issue of guilt. It is not necessary (as the lower court held) that the expert testify about a “mental disorder.” Other mental “conditions” may be the subject of expert testimony. Also, the fact that the expert was somewhat tentative in his testimony (the defendant “could have” failed to notice that the currency was counterfeit), was not a basis for excluding the testimony: it was the test results and the perceptual difficulties they demonstrate which were admissible, not the expert’s opinion. This testimony would have been helpful to the jury and was otherwise admissible as expert testimony and its exclusion was reversible error.

United States v. Word, 129 F.3d 1209 (11th Cir. 1997)

A man and woman were charged with securities fraud and related offenses. They were romantically involved when the offenses occurred, and subsequently were married. The wife sought to offer evidence at their joint trial that she was battered and obeyed her husband’s demands without question. The trial court excluded this evidence. The government, however, then argued that the wife had to have guilty knowledge – after all, she was married to the man who orchestrated the fraud – and the jury never learned about the acrimony in their relationship. The combination of allowing the government to make this argument and excluding the defendant’s evidence was reversible error.

United States v. Todd, 108 F.3d 1329 (11th Cir. 1997)

The defendant was charged with embezzlement from an employee pension plan. 18 U.S.C. §664. He sought to introduce evidence that the employees were very well paid and were concerned with the welfare of the company and would have approved the use of their contributions to ensure the continued vitality of the company. The trial court held that this evidence was irrelevant. The appellate court reversed. The defendant’s argument that he believed the employees consented to his use of the funds was not contested by the government in the lower court, and was clearly probative of this defense. Moreover, the evidence would have rebutted the government’s “motivated by greed” argument.

United States v. Westcott, 83 F.3d 1354 (11th Cir. 1996)

The Insanity Defense Reform Act, 18 U.S.C. §17 does not bar the defense from introducing evidence of a defendant’s mental disease or defect in contexts other than reliance on the insanity defense. If the defendant claims that he lacked the mens rea element of the offense (as opposed to lacking the capacity to form the mens rea element), he may offer expert psychiatric evidence.

United States v. Thompson, 25 F.3d 1558 (11th Cir. 1994)

The defendant was a convicted felon. For several years, he acted as an informant for the government, including the FBI and the ATF. In this prosecution for being a felon in possession of a firearm, he sought to rely on an entrapment by estoppel defense. The trial court incorrectly held that this was not a legal defense to a §922 charge. See e.g., Lewis v. United States, 445 U.S. 55 (1980); United States v. Billue, 994 F.2d 1562 (11th Cir. 1993). Entrapment by estoppel focuses on the actions of the government officials, not the state of mind (or predisposition) of the defendant. Entrapment by estoppel applies when an official tells a defendant that certain conduct is legal and the defendant believes that official. Because the defense rests on principles of fairness, it may be raised even in strict liability offense cases. Finally, the defendant’s proffer was sufficient to justify submitting the evidence to the jury. If there is any basis to support the defense, the jury should have been permitted to hear the testimony and weigh the evidence itself. Even if the defendant’s testimony regarding the alleged conduct of the officials authorizing his possession was not credible, as the government asserts and the district court found, it is the jury’s, not the district court’s, function to determine questions of credibility and assess the defendant’s testimony.

United States v. Sheffield, 992 F.2d 1164 (11th Cir. 1993)

The trial court committed reversible error in prohibiting the defendant from offering evidence in support of his defense. The defendant was prosecuted for using military base facilities (where he was employed) to make fishing lures for his personal use. He claimed that the base facilities were frequently used to make fishing lures for retirement benefits. This evidence should have been admitted.

United States v. Harnage, 976 F.2d 633 (11th Cir. 1992)

Though a criminal defendant may utilize collateral estoppel to bar a prosecution or argument of facts necessarily established in prior proceedings or to completely bar subsequent prosecution where one of the facts necessarily determined in the former trial is an essential element of the conviction the government seeks, the government may not collaterally estop a criminal defendant from relitigating an issue decided against him in a different court proceeding. Here, the trial court barred the defendant from asserting the attorney-client privilege concerning some discussions about a planned drug transaction. In a prior case, in another district, this same defense had been rejected by the trial court.

United States v. Lankford, 955 F.2d 1545 (11th Cir. 1992)

In defense of tax evasion charges, the defendant sought to introduce expert evidence that the money he received could be characterized as a gift rather than a loan. The trial court committed reversible error by excluding this evidence. Such expert testimony is highly relevant to the assessment of whether the defendant willfully violated the tax laws.

United States v. Ethridge, 948 F.2d 1215 (11th Cir. 1992)

The defendants were charged with mail fraud. They filed false claims to an insurance company in connection with a fire loss. At trial, they sought to introduce evidence that the claimed losses exceeded the policy limits, therefore, even excluding the falsely claimed items, they could not have received more than that to which they were entitled. While this is not a defense to the mail fraud charge, the trial court committed reversible error by excluding the evidence. The evidence tended to show that the defendants did not intentionally try to defraud the insurance company, because the inclusion in the proof of loss of items not in fact lost, would not have netted them any additional money.

Nichols v. Butler, 953 F.3d 1550 (11th Cir. 1992)

The defendant’s attorney insisted that the defendant not testify in his own defense. The attorney threatened to withdraw if the client did testify. This violated the defendant’s right to testify and required a new trial. The right to testify at trial cannot be forfeited by counsel, but only by a knowing, voluntary, and intelligent waiver by the defendant himself. The defendant’s right to testify in his own defense is a fundamental right. Rock v. Arkansas, 483 U.S. 44 (1987).

United States v. Teague, 908 F.2d 752 (11th Cir. 1990)

A defendant has the fundamental right to testify in his own defense. This may only be waived personally, not solely through counsel. Thus, if the attorney vetoes the defendant’s decision to testify, the defendant may challenge his conviction. After rehearing the case en banc, United States v. Teague, 953 F.2d 1525 (11th Cir. 1992), the Eleventh Circuit re-affirmed the principle that the defendant has a fundamental right to testify and the right may not be unilaterally waived by his attorney. However, the facts in this case did not show that the defendant’s will was overborne. Rather, the attorney urged the defendant not to testify and the defendant agreed. Consequently, there was no ineffective assistance of counsel.

United States v. Kelly, 888 F.2d 732 (11th Cir. 1989)

A criminal defense attorney was prosecuted for being a member of a conspiracy involving one of his former clients and one of his present clients. The former client was working with the government, unbeknownst to the attorney. In his defense, the attorney sought to introduce his understanding of the Canons of Ethics, which required him not to reveal the statements made by the cooperating individual. The trial court excluded this testimony. This was reversible error. Regardless of whether the Canons of Ethics in fact authorized or required the defendant to act as he did, the evidence was relevant to the state of mind which was the basis of his defense.

United States v. Calle, 822 F.2d 1016 (11th Cir. 1987)

The defendant attempted to prove that the prosecution’s star witness was the kingpin of the drug enterprise for which he was standing trial. The trial court prohibited this testimony, holding that it constituted improper impeachment of the witness. The Eleventh Circuit reverses, holding that an attempt to show that one other than the defendant was guilty of the offense is not impeachment, it is a substantive defense which cannot be limited by the trial court pursuant to the rules governing impeachment.

United States v. Shyllon, 10 F.3d 1 (D.C.Cir. 1993)

The defendant claimed that the prosecution witnesses had been intimidated by the investigator into testifying against him. In support of this argument he sought to call a potential prosecution witness, who did not testify for the government, and elicit testimony that the investigator threatened him. The defendant also tried to cross-examine the investigator about his threatening that non-testifying witness. The trial court erroneously excluded the testimony and the cross-examination. If the investigator intimidated the other witness, it would make it more likely that he intimidated the other witnesses; therefore, the testimony was relevant under Rule 401. Harmless error.