Monday, September 29, 2008
Suicidal Tendencies?: Ninth Circuit Finds Court's Decision To Exlcude Expert Testimony Didn't Violate His Right To Present A Defense
In it recent opinion in Moses v. Payne, 2008 WL 4192031 (9th Cir. 2008), the Ninth Circuit addressed an issue which I don't think has ever been raised before: Can a court's discretionary decision to preclude a criminal defendant from present expert evidence deny him his right to presenting relevant evidence in his own defense?
In Payne, a Washington state jury convicted Jeffrey Moses of second degree murder for the shooting death of his wife, Jennifer. Payne's defense at his trial was that Jennifer, who was suffering from depression and substance abuse, shot and killed herself. The trial court, however, precluded him from proving this defense through certain testimony by Dr. Lawrence Wilson, an expert on depression.
In a preliminary evidentiary hearing, Dr. Wilson explained that he was prepared to testify regarding the nature of Jennifer's depression and substance abuse, the unlikelihood that her depression would have resolved itself before the date she died, and the ability of a person who was severely depressed to appear normal to friends and co-workers (which would have rebutted the government's lay testimony that Jennifer was not visibly depressed in the final months of her life).
Dr. Wilson was also prepared to testify that several risk factors, such as depression, substance abuse, and access to firearms, heighten the risk of suicide. Additionally, he was prepared to testify that lay persons do not fully understand the implications of major depression and the connection between these various risk factors and suicide. Although Dr. Wilson was not willing to opine that Jennifer Moses committed suicide, he was prepared to testify that Jennifer Moses fell "into a group of people with an extreme number of severe and significant risk factors for suicide" and that "she continued to suffer [from] major depression...that continued to the time of her death." Ostensibly, he was also prepared to testify "that 15 percent of those diagnosed with major depression will take their own life at some point in their life."
The trial court, however, decided to exclude Dr. Wilson's testimony on three grounds. First, it stated that Dr. Wilson's opinion that persons who suffer from depression, abuse drugs and alcohol, and have access to firearms experience a relatively higher risk of suicide was already within common knowledge of the jury. Second, it concluded that Dr. Wilson's testimony was cumulative in light of the other evidence introduced by the defense establishing that Jennifer was undergoing treatment for substance abuse, suffered from depression, experienced suicidal thoughts, and had a gun in the house. Third, the court concluded that Dr. Wilson's remaining testimony-namely, "that 15 percent of those diagnosed with major depression will take their own life at some point in their life"-was not sufficiently probative to outweigh its prejudicial effects and potential to confuse the jury.
After unsuccessfully attempting to appeal this verdict in the state system, Moses filed a petition for a writ of habeas corpus in federal district court, claiming, inter alia, that certain evidentiary rulings, such as the preclusion of this testimony by Dr. Wilson, deprived him of rights secured by the Constitution. The district court denied the habeas petition, prompting Moses to appeal to the Ninth Circuit.
In his appeal, Moses alleged that court's decision to preclude this testimony by Dr. Wilson was contrary to the Supreme Court's precedents holding that defendants have a constitutional right under the Due Process Clause of the Fourteenth Amendment and the Compulsory Process Clause of the Sixth Amendment to present relevant evidence in their own defense. In rejecting this argument, the Ninth Circuit noted that these "right to present a defense cases" all concerned per se rules that prevented defendants from presenting evidence.
For instance, in Washington v. Texas, 388 U.S. 14 (1967), Washington statutes prevented a defendant from presenting the exculpatory testimony of his alleged accomplice because the statutes per se precluded defendants from offering the testimony of a person charged or convicted as a co-participant in the same crime. In Chambers v. Mississippi, 410 U.S. 284 (1973), inter alia, a Mississippi rule precluded the defendant from impeaching a witness through evidence of his confessions to the subject crime because the rule per se precluded such impeachment under the voucher rule. And in Rock v. Arkansas, 483 U.S. 44 (1987), the Arkansas Supreme Court concluded that the defendant's hypnotically refreshed testimony was inadmissible because it found that hypnotically refreshed testimony is per se inadmissible.
As the Ninth Circuit correctly noted,
"Rule 702 is different in kind from the rules in [these cases.] The evidentiary rules in those cases, by their terms, required the trial court to exclude crucial evidence that had a critical effect on the trial, with little or no rational justification. In general, the rules precluded a defendant from testifying, excluded testimony from key percipient witnesses, or excluded the introduction of all evidence relating to a crucial defense. In contrast, Rule 702 does not require a trial court to exclude evidence. Rather, it authorizes a court to admit expert testimony 'if it will assist the trier of fact to understand the evidence or a fact in issue.' Accordingly, a decision that Rule 702 itself is constitutional would be consistent with Supreme Court precedent."
Having disposed of this argument, the Ninth Circuit quickly rejected the argument that the court's application of Rule 702 violated his right to present a defense. Instead, it found that "Moses ha[d] not identified, and we have not found, a Supreme Court case holding that such an exercise of discretion to exclude expert testimony violated a criminal defendant's constitutional right to present relevant evidence."
While I agree with the Ninth Circuit's well reasoned opinion, I am extremely troubled with at least part of the trial court's evidentiary ruling. As I noted, the court concluded that Dr. Wilson's testimony "that 15 percent of those diagnosed with major depression will take their own life at some point in their life"-was not sufficiently probative to outweigh its prejudicial effects and potential to confuse the jury.
First of all, this conclusion misstated Washington Rule of Evidence 403, which indicates that relevant evidence may be excluded only if its probative value is "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Second, do readers really think that this proposed testimony was more (unfairly) prejudicial/confusing than it was probative by any degree? Payne's defense at trial was that his wife committed suicide. Dr. Wilson's proposed testimony indicated that based upon her major depression, there was a decent possibility that she committed suicide. This evidence went directly to the defense's theory of the case and thus was highly probative. And because it went directly to his theory of the case, how did it confuse the issues or cause undue prejudice to the prosecution at all, let alone to a greater extent than the proposed testimony was probative?