Posted by BNB Quiz Questions:
1. Under Rule 803(4) of the Federal Rules of Evidence, may a court bar a defense expert (hired for the purposes of litigation) from reciting a defendant’s statement professing innocence of the charged crimes?
2. What are four factors to consider when determining whether a prosecutor’s improper closing argument prejudicially affects the substantial rights of a defendant, and thus requires a new trial?
3. During a bench trial in which a client does not testify, does the judge violate the client’s constitutional rights when he concludes that the client’s post-arrest statements were not coerced because “the only evidence that I have as to the circumstances of that interview comes from” the agent (who did, in fact, testify)?
Eleventh Circuit Opinions:
A husband and wife were charged together with production of child pornography. At trial, the wife admitted she took illicit photos of her 14-year-old sister but says she did so under duress from the abusive husband. After the indictment, her lawyer sent the wife to be evaluated by a psychologist, and the wife shared her history of abuse. At trial, the attorney planned not to call the wife to the witness stand but instead sought to present the psychologist’s testimony on both the diagnosis (dissociative disorder) and the wife’s narrative of abuse. The district court granted the government’s motion in limine to exclude the expert from recounting the wife’s statement of duress (i.e., of innocence). In US v. Keegan, the Eleventh Circuit affirmed the conviction. The district court was right to conclude “there was no diagnostic purpose underlying Keegan’s statements” about her abuse and was right to exclude those statements as inadmissible hearsay under Rule 803(4) of the Federal Rules of Evidence. Although the statements were made to a doctor, they were not made “for” medical diagnosis or treatment, as the rule requires. The lynchpin in this evidentiary question is reliability. The panel expressed grave concern that the wife made the statement to the doctor in anticipation of litigation, and to avoid having to testify and be cross-examined. But, noted Keegan’s counsel, the text of Rule 803(4) does not bar the admission of such dual-use evidence. Plus, the rule’s Advisory Committee notes and opinions from the Second, Eighth, Fourth, and Tenth Circuits all support Keegan’s view: So long as one purpose in talking to the doctor is to seek a medical diagnosis, it does not matter whether there is another purpose. The panel disagreed and, in doing so, created a circuit split. The outcome also induced Judge Newsom to write a fascinating (and seemingly uncomfortable) concurrence, one in which he agreed that although the rule’s text supports Keegan, she must still lose. Why? Because “proper textualism” isn’t wooden “literalism.” In the end, we keep hearing Jackson Browne singing: “Doctor my eyes have seen.” [By Suzanne Hashimi].
Jones was convicted of drug and gun crimes, including one 18 U.S.C. § 924(c) count. On appeal, Jones argued that the prosecutor engaged in misconduct. During his closing argument, the prosecutor highlighted an unadmitted exhibit containing Jones’ Instagram messages (discussing his alleged crimes) and told the jury that that exhibit was all they needed to know to convict Jones on the § 924(c) count. Trial counsel failed to catch the mistake and did not object. In US v. Jones, applying plain-error review, the Eleventh Circuit panel agreed that the prosecutor did in fact commit misconduct when relying on the unadmitted exhibit and urging the jury to convict on the § 924(c) count. (On that same count, the panel found sufficient evidence to convict Jones but noted how thin and “hardly compelling” the evidence was.) The panel evaluated the misconduct with a two-part test: (1) the remarks must be improper, and (2) the remarks must prejudicially affect the substantial rights of the defendant. To assess the second prong, there are four factors to consider: (1) whether the challenged comments had a tendency to mislead the jury or prejudice the defendant; (2) whether the comments were isolated or extensive; (3) whether the comments were deliberately or accidentally placed before the jury; and (4) the strength of the competent proof establishing the guilt of the defendant. The panel here found that the prosecutor’s remarks to the jury were prejudicial, the exhibit was one of just three exhibits relied on, it is inconceivable that this was accidentally placed before the jury given its centrality to the closing argument, and the government’s proof of the nexus―that Jones possessed firearms to further his trafficking crimes―was not particularly strong. Jones’s § 924(c) conviction was vacated and he gets a new trial on that super thin evidence! [By Takiya Wheeler].
A postal employee charged with tampering with and stealing mail opted for a bench trial. At trial, she did not testify, and the defense offered no evidence. The defense attorney, in closing argument, criticized the case agent for failing to record the Garrity interview in which the postal employee made damaging admissions, and argued that the interview had been coercive. The trial judge, in responding to that argument, noted that the defendant had chosen not to testify (after a full inquiry from the court). So, the trial court said, “the only evidence that I have as to the circumstances of that interview comes from” the agent. In US v. Rodgers, the Eleventh Circuit held that the court did not draw an impermissible negative inference from the defendant’s silence and did not violate her constitutional right not to testify. Practice tip: It’s almost never a good idea to waive a jury for a contested trial. [By Colin Garrett].
Answers:
1. Yes, under Rule 803(4), a court may bar testimony of a defense expert, hired for the purposes of litigation, beyond the medical diagnosis, including a defendant’s statement professing innocence of the charged crimes.
2. A court must evaluate whether the comments had a tendency to mislead the jury, whether the comments were isolated or extensive, whether the comments were deliberately or accidentally placed before the jury, and the strength of the other proof establishing the guilt of the defendant.
3. No, when a court, sitting as a trier of fact at a bench trial, notes that it lacks evidence of coercion because it heard evidence only from the case agent, and not the defendant, that court does not violate the defendant’s constitutional right not to testify.
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