Thursday, December 12, 2013

Criminal Defendant's Right to Present Exculpatory Evidence

Defendant was charged with various immigration-related offenses. Conviction of each offense depended on satisfactory proof that defendant was an illegal alien. The trial court rejected defendant's offer of Idaho birth certificate, which tended to show that defendant was born in the United States and therefore was a citizen of the United States. The Ninth Circuit US Court of Appeals held (2-1) that the trial court had committed reversible error. United States v. Evans, 720 F.3d 953 (9th Cir. 2013). The Court of Appeals made the following points (footnotes omitted):

"The Constitution 'guarantees criminal defendants a meaningful opportunity to present a complete defense.' United States v. Stever, 603 F.3d 747, 755 (9th Cir.2010) (internal quotation marks omitted). This right includes 'the right to present the defendant's version of the facts,' Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), and to 'put before a jury evidence that might influence the determination of guilt,' Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); see also Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) ('The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations.'). We have acknowledged that this right is not 'absolute,' and Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir.2003), since the 'him adversary process could not function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments,' and Taylor v. Illinois, 484 U.S. 400, 410–11, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). However, ‘"when evidence is excluded on the basis of an improper application of the evidentiary rules,"’ the the danger of a due process violation is particularly great, since ‘"the exclusion [of the evidence] is unsupported by any legitimate ... justification."’ Stever, 603 F.3d at 755 (brackets omitted) (quoting United States v. Lopez–Alvarez, 970 F.2d 583, 588 (9th Cir.1992)). We therefore begin our analysis by considering whether the district court properly applied the Federal Rules of Evidence. We conclude that it did not.


"The district court invoked Rule 104(a) as the source of its 'gate-keeping' authority. Rule 104(a) states that the court 'must decide any preliminary question' of fact or law about three types of issues: whether (1) 'a witness is qualified,' (2) 'a privilege exists,  him'or (3) 'evidence is admissible.' Fed.R.Evid. 104(a); see also Fed.R.Evid. 104(a) advisory committee notes.FN5 We have previously considered the trial court's gate-keeping function as it applies to the first two issues, but we have not explicitly considered the scope of the trial court's gate-keeping function with regard to the third issue.FN6 We conclude that the trial court's authority to determine if evidence is admissible pursuant to Rule 104(a) is necessarily limited by other rules of evidence—most importantly, Rule 402, which provides that evidence is admissible so long as (1) it is relevant, and (2) it is not otherwise inadmissible under, inter alia, the Federal Rules of Evidence. Fed.R.Evid. 402 ('Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible.').

"Thus, Rule 104(a) provides the trial court with the authority to decide questions that might make evidence inadmissible under some other rule of evidence (or under the Constitution, a federal statute, or other Supreme Court rules), but it does not itself provide a substantive basis for excluding the evidence. ...

"In each of the above [enumerated] scenarios, the trial court uses its Rule 104(a) authority to determine 'the existence of a condition,' which in turn determines '[t]he applicability of a particular rule of evidence.' Fed.R.Evid. 104(a) advisory committee notes. We have not previously considered whether a trial court can exclude evidence pursuant to Rule 104(a) without relying on some substantive basis outside of Rule 104(a), such as another rule of evidence, a federal statute, or the United States Constitution. We now hold that it cannot.FN7 See Fed.R.Evid. 402. To the extent that the district court here invoked an umbrella 'gate-keeping' him authority to exclude Evans's birth certificate so as to avoid a 'miscarriage of justice,' it exceeded the scope of its authority under Rule 104(a).FN8


"Because the trial court must admit evidence that is (1) relevant, and (2) not inadmissible under, inter alia, some other rule, Fed.R.Evid. 402, we next consider whether these conditions are met here. The government argues that the birth certificate is irrelevant because even if it was 'genuine in form,' it was 'not [genuine] in substance.' We disagree. The fact that the birth certificate was properly issued by the State of Idaho establishes that it is 'of consequence' him to an issue in both cases—Evans's claim of United States citizenship—and that it has some 'tendency to make [his alleged citizenship] more ... probable than it would be without the evidence.' Fed.R.Evid. 401. FN9 This establishes him that the birth certificate was relevant to all the counts in both cases.

"Furthermore, to the extent the district court conditioned the relevance of the birth certificate upon its 'substantive genuineness,' it erred in its application of Rule 104(b). This rule provides that where 'the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.' Fed.R.Evid. 104(b).FN10 If 'the foundation evidence is sufficient to support a finding of fulfillment of the condition ... the item is admitted.' Fed.R.Evid. 104(b) advisory committee notes. Furthermore, if 'after all the evidence on the issue is in, pro and con, the jury could reasonably conclude that fulfillment of the condition is not established,' the evidence is admitted, because 'the issue is for [the jury].' Id. (emphasis added). Only if 'the evidence is not such as to allow a finding, [does] the judge withdraw[ ] the matter from [the jury's] consideration.' Id. Of critical importance here, when 'determining whether the [party introducing evidence] has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the [party] has proved the conditional fact by a preponderance of the evidence.' Huddleston v. United States, 485 U.S. 681, 690, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) (emphasis added). 'The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact ... by a preponderance of the evidence.' Id.

"Here, although the district court did not specifically cite to Rule 104(b), its conclusion that no 'reasonable person' could 'determine that the Defendant's Idaho birth certificate is substantively genuine' draws its language and reasoning from Rule 104(b). But in reaching the conclusion that no reasonable person could find that Evans's birth certificate was substantively genuine, the district court erroneously weighed the credibility of the government's witnesses against the credibility of the official state document. Indeed, it expressly found that 'all three of the Government's witnesses were credible.' This was error. The fact that the birth certificate was an official document, issued by the Idaho Bureau of Vital Records and Health Statistics, provided a sufficient basis upon which a juror could conclude that the birth certificate was 'substantively genuine.' And to the extent the Government's evidence suggests otherwise, the issue boils down to the credibility of the parties' conflicting evidence, which is a question for the jury to decide.FN11 We therefore hold that to the extent the district court relied on Rule 104(b) in excluding the birth certificate, it erred.


"We next turn to the district court's application of Rule 403. As part of its authority to decide preliminary questions of law pursuant to Rule 104(a), the trial court may exclude relevant evidence if 'its probative value is substantially outweighed' by, inter alia, the danger of unfair prejudice, misleading the jury, or undue delay.FN12 Fed.R.Evid. 403; see also Hankey, 203 F.3d at 1168 (recognizing that the court's Rule 104(a) authority allows it to exclude evidence under Rule 403). The district court here concluded that Evans's birth certificate was inadmissible under Rule 403 because it was 'without probative weight' and could 'only lead to undue delay.' This was legal error. 'Weighing probative value against unfair prejudice under [ Rule] 403 means probative value with respect to a material fact if the evidence is believed, not the degree the court finds it believable.' Bowden v. McKenna, 600 F.2d 282, 284–85 (1st Cir.1979) (citing 22 C. Wright & K. Graham, Federal Practice & Procedure: Evidence, § 5214, at 265–66 (1978)) (emphasis added). The court may not exclude relevant evidence—or, in this case, assign it no probative value—on the ground that it does not find the evidence to be credible. See United States v. Candoli, 870 F.2d 496, 509 (9th Cir.1989) ('[A] conflict in the evidence goes to the weight of [the evidence], not to its admissibility.').

[snip. snip]

"Admission of the birth certificate also would have posed a low risk of confusing or misleading the jury. Although the birth certificate would have increased the chances that the jury would acquit Evans, such a result could not be attributed to the jury being confused or misled; to find otherwise would be to prejudge the 'correct' outcome of the trial before it occurs. See, e.g., United States v. Crosby, 75 F.3d 1343, 1349 (9th Cir.1996) ('"[I]f the evidence [that someone else committed the crime] is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic but should afford the accused every opportunity to create that doubt."’ (quoting 1A John Henry Wigmore, Evidence in Trials at Common Law § 139 (Tillers rev. ed.1983)) (alterations in original)). It is the jury, not the trial judge, that must decide how much weight to give to Evans's delayed birth certificate in light of the government's evidence suggesting that the birth certificate is fraudulent and that Evans is not a United States citizen. We therefore conclude that it was an abuse of discretion for the district court to exclude Evans's delayed birth certificate under Rule 403.


"We next consider whether the exclusion of the birth certificate rose to the level of a constitutional violation. We hold that it did.FN15 'The Ninth Circuit has found ... violations [of the constitutional right to present a defense] where the district court incorrectly excluded evidence that was necessary for the defendant to refute a critical element of the prosecution's case.' Pineda–Doval, 614 F.3d at 1033.

"... Here, as in Stever, the excluded birth certificate was (1) the main piece of evidence, (2) for the defendant's main defense, to (3) a critical element of the government's case. On this ground, we conclude that the exclusion of the birth certificate amounted to a deprivation of Evans's due process right to present a defense. See United States v. Ramirez, 714 F.3d 1134, 1139 (9th Cir.2013) ('To be sure, the Constitution protects a criminal defendant's right to argue a point that goes to the heart of his defense.')."


Gould, J., dissenting, wrote (footnotes omitted):

I take a different view and would affirm the district court for three reasons.

First, Federal Rule of Evidence 104(a) literally permits a district court to perform a threshold review of the admissibility of evidence. Even if Rule 104(a) is limited to the “preliminary requirements or conditions that must be proved before a particular rule of evidence may be applied,” United States v. Brewer, 947 F.2d 404, 409 (9th Cir.1991), that does not prevent the court from excluding illegitimate evidence when excluding such evidence is the very reason rules of evidence exist. I have no problem reaching the firm conclusion that illegitimate evidence may permissibly be held to be inadmissible due to its inaccurate nature. We should make that our precedential point, rather than the approach favored by the majority.

I illustrate with a thought experiment or hypothetical. Let's say that an organized-crime czar is charged in a serious case and wants to present “exculpatory” evidence. But the prosecution has independent evidence that the defense evidence is as phony as a $3 bill. It might be fraudulently obtained (such as the legitimate document here that was procured by fraudulent means). Or it might be the product of extortion (such as through a threat like “I will kill your children if you don't give me an alibi”). Or it might be the product of bribery (such as a promise to pay a large sum for favorable evidence). In each case, the majority's rule would appear to require the phony evidence to be admitted before the jury, while merely letting the prosecution present responsive evidence to the jury showing that it was procured by fraud, extortion, or bribery. That would require mini-trials within the trial, would be potentially confusing to a jury, and is not literally required by Rule 104.

The majority agrees that the court can condition relevance on validity. But it concludes that in making “a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition,” Fed.R.Evid. 104(b) advisory committee's note, a court may not consider the underlying substance and process that led to the issuance of a document because doing so would amount to an improper credibility determination. Applying this rationale in the present case, the majority concludes that “the district court erroneously weighed the credibility of the government's witnesses against the credibility of the official state document.” But the existence of the document does not at all bear on the question of whether it was procured by fraud. And the district court cannot be said to have made a credibility determination when Evans presented no evidence at the hearing to support the document's integrity. Adopting the rule of the majority permits a party's old lies to insulate new ones from challenge outside the jury's presence.

Here are the facts: To gain the delayed birth certificate, Evans offered an affidavit and testimony asserting that he was born in Idaho and was a former member of the U.S. Marine Corps. He said under oath that he was “active in the Vietnam [W]ar, from 1969 through 1975” and had twelve years of combat duty where he earned a purple heart. He said that when he came back to the United States, he “donated [his] next eight years of service [in the Marine Corps] for free” until he retired. On this evidence, the Idaho judge granted the delayed birth certificate in the non-adversarial state proceeding and thanked Evans for his military service.

In the federal criminal proceeding, the district court excluded the Idaho birth certificate. It reached this correct decision after hearing extensive evidence that Evans was not a U.S. citizen and never served in the military, let alone in a war zone.FN1 Based on this evidence and without any evidence presented by Evans, the court fairly concluded:

"While neither party questions the validity of the Idaho birth certificate on its face, the Government has unequivocally shown that the Idaho birth certificate is substantively fraudulent and that it was obtained through fraud of the Defendant. The [c]ourt finds that all three of the Government's witnesses were credible and that there is no support in the record that would allow a reasonable person to determine that the Defendant's Idaho birth certificate is substantively genuine."

The majority argues that the court impermissibly made a credibility determination, but as I have explained, this principle should not be applied when all the evidence was on the Government's side and Evans had no witnesses testify at the evidentiary hearing. The district court's rationale quoted above is equivalent to saying that no reasonable jury could determine that the birth certificate was not tainted by fraud. I conclude that the district court made a correct and discerning judgment. There is nothing on the side of nonfraud here, and the district court's decision excluding the evidence was correct.

“Fraud” is “an instance or act of trickery or deceit esp[ecially] when involving misrepresentation.” Webster's Third New International Dictionary 904 (3d ed.1993). To tell a lie is to “make an untrue statement with an intent to deceive” or to “create a false or misleading impression.” Id. at 1305. Lying is a form a fraud. And to determine whether fraud exists, substance and process must be examined. Under the majority rule, the district court could not perform such an examination and evidence procured by fraud would be admissible, leaving it to the jury to sort things out. To my thinking, there is no evidence error at all in excluding fraudulently obtained evidence. I would conclude that Federal Rule of Evidence 104(a) lets the court preliminarily review whether a state document in the form of a belated birth certificate was procured by fraud. That is one reason to affirm the district court.

Second, even if Rule 104(a) should be limited as stated by the majority, Federal Rule of Evidence 403, relied upon by the district court in its Rule 104 decision, gives the district court broad power to exclude evidence if its probative value is substantially outweighed by a danger of “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” FN2 All the valid evidence presented to the state in the non-adversarial proceeding for the birth certificate could have been presented in Evans's criminal trial. I would have thought that introducing a fraudulent document would be wasting the jury's time and confusing the issues. It was reasonable for the district court to exclude the delayed birth certificate under Rule 403. See Old Chief v. United States, 519 U.S. 172, 184–85, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (performing a Rule 403 analysis requires the court to consider the probative value and prejudice associated with the admission of evidence alongside the probative value and prejudice associated with similar evidentiary alternatives). And our case law confirms that excluding an evidentiary exhibit under Rule 403 is permissible where the relevance of the document is predicated on a disputed factual hypothesis. Baker v. Delta Air Lines, Inc., 6 F.3d 632, 643 (9th Cir.1993). The standard for abuse of discretion under United States v. Hinkson, 585 F.3d 1247 (9th Cir.2009) (en banc), prevents us from reversing an evidence ruling if it is not “illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” See United States v. Redlightning, 624 F.3d 1090, 1110 (9th Cir.2010) (citing Hinkson, 585 F.3d at 1261). Here, the district court's decision is logical and is supported by evidence that the certificate was gained by fraudulent documents and false testimony. Undue delay was likely to result from the certificate's admission. There was no abuse of discretion in applying Federal Rule of Evidence 403. That is a second reason to affirm the district court.

Third, even if the district court abused its broad discretion on evidence rulings despite the sound grounds for the fraudulent birth certificate's exclusion, I would not elevate this to the level of constitutional error and instead would conclude that any error was harmless.FN3 See United States v. Pridgen, 518 F.3d 87, 91–92 (1st Cir.2008) (stating the harmless-error standard). Evans cannot claim that exclusion of the delayed birth certificate blocked his defense because the court let him give testimony and offer valid documents supporting his claim of citizenship. See United States v. Stever, 603 F.3d 747, 755–57 (9th Cir.2010) (holding that there was constitutional error where “the sole evidence” on a major issue was erroneously excluded); see also United States v. Pineda–Doval, 614 F.3d 1019, 1032–33 (9th Cir.2010) (holding that there was constitutional error where a total exclusion of evidence wholly “denied the defendant the only argument that he had”). The ruling, even if assumed to be incorrect, did not create fundamental unfairness and a resulting due-process violation in the criminal trial. See United States v. Ramirez, 714 F.3d 1134, 1139 (9th Cir.2013) (holding that there was non-constitutional error). Because the error was not constitutional, reversal is improper so long as “it is more probable than not that the error did not materially affect the verdict.” See United States v. Wiggan, 700 F.3d 1204, 1215 (9th Cir.2012)(quoting Boyd v. City & Cnty. of S.F., 576 F.3d 938, 949 (9th Cir.2009)). Here Evans chose not to present much of the evidence offered in state court to obtain the delayed birth certificate. And the Government presented overwhelming evidence, including several fingerprint matches and photographic matches to an active immigration file and testimony from Evans's sister identifying him as Roman Ceniceros–Mora who was born in Mexico. Evans's testimony also revealed that he had previously committed birth-certificate fraud, that he had physical injuries consistent with those of Ceniceros–Mora, and that he had previously signed statements using Ceniceros–Mora's name. The arresting officer also stated that after Evans was given his Miranda warnings, he admitted to having been deported before and said, “[T]ime will tell; I will be back; I will be back.” The challenged ruling, if error, was harmless on all the evidence.FN4 That is a third reason to affirm the district court.

Hence I respectfully dissent and would affirm the district court.

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Tuesday, December 10, 2013

China Maintains Teaching and Scholarship Standards

It is heartwarming to see that the PRC puts a high value on the needs of university students:

"In October [2013?], Peking University fired a noted economist who is a vociferous critic of single-party rule. Administrators claimed that their refusal to renew the contract of the professor, Xia Yeliang, was based on poor teaching and his failure to keep up the school’s publishing requirements." Andrew Jacobs, Chinese Professor Who Advocated Free Speech Is Fired NYTimes (December 10, 2013).

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Legal Misnomer

Ben Protess & Peter Eavis, Regulators Complete Votes on Rule to Curb Bank Risk NYTimes (December 1 0, 2013):

"The Volcker Rule 'spans 71 pages and features a preamble of nearly 900 pages interpreting the rule.'"

That's a long rule.

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