Curative Admissibility and Due Process

Judge Merritt, concurring in part and dissenting in part, United States v. Geisen, 612 F.3d 471, 497 at 497-498 (6th Cir. 2010) (footnotes omitted):

Four government witnesses were allowed, over the objection of the defendant, Geisen, to testify in great detail about their negotiations with the government to escape prosecution while Geisen was denied the right to testify about his response to the government's offer of the same deal. The court's rulings seem contrary to a number of principles of relevancy usually observed in criminal trials: Rule 401 of the Federal Rules of Evidence provides a broad and inclusive definition of "relevant evidence." Rule 408 allowing "offers to compromise" in criminal cases would appear to allow evidence of the government offer and Geisen's response. When a party "opens the door" by offering proof concerning offers of compromise, the opposing party should be allowed the same opportunity in reply. For a long discussion of this relevancy concept on "curative admissibility," see 1 Wigmore, Evidence § 15, pp. 731-51 (Tillers Revision 1983). The failure to offer the same opportunity in response to similar circumstances comes close to a deprivation of a trial right protected by due process to "question and challenge adverse evidence." Id. at § 7.1, n. 64, p. 505. Although I do not object to the court's decision in this case on the sufficiency of the evidence, I would reverse and remand for a new trial because the trial court rejected important evidence offered by Geisen. Had the jury known that Geisen had been offered the same deal offered to the government's four witnesses, one or more jurors may have believed that Geisen was no more guilty than the witnesses who were spared prosecution and may have believed that his decision was based on a firm belief in his own innocence.





&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Curative Admissibility

For an interesting example of a situation in which the doctrine of curative admissibility (or a doctrine like it) should apply even though an opposing party did not introduce inadmissible evidence, see the opinion of Judge Merritt, concurring in part and dissenting in part, in United States v. Geisen, 08-3655, 612 F.3d 471 at 497-498 (6th Cir. July 15, 2010). (For a summary of his opinion go to this node in Spindle Law and sign in [for free].) Judge Merritt even suggests (quite correctly, I think) that the refusal of a trial court to allow a criminal defendant to introduce otherwise inadmissible evidence to rebut improper inferences that the jury is likely to make may constitute a denial of a criminal defendant's due process right to challenge adverse evidence.

Judge Merritt cited my discussions in Section 7.1 and 15 of Wigmore on Evidence (P. Tillers rev. 1983). See id. pp. 731-751 (curative admissibility) and note 64 at p. 505 (due process). Judge Merritt said my discussion of curative admissibility was "long." I cannot quarrel with him about that. However, I note that he apparently took the trouble to read my lengthy discussion.

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.