Tuesday, December 16, 2008
What Kind Of Right?: Seventh Circuit Suggests In Dicta That Right To Present A Defense Could Apply To Discretionary Evidentiary Rulings
It is well established in Supreme Court precedent that:
"[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690 (1986).
And in every Supreme Court case finding that a court's application of a rule of evidence violated a defendant's right to present a defense, the rule applied by the court has been a per se rule of exclusion. But can a court only violate a defendant's right to present a defense through mechanistic application of per se rules of exclusion?
That was the approach taken by the Ninth Circuit in Moses v. Payne, 2008 WL 4192031 (9th Cir. 2008). As I noted in a previous post, the Ninth Circuit found that a trial court's refusal to allow a defendant to admit expert testimony pursuant to Washington Rule of Evidence 702 could not have violated his right to present a defense because:
"Rule 702 is different in kind from the rules in [the Supreme Court 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."
Well now, in its recent opinion in Simonson v. Hepp, 2008 WL 5134700 (7th Cir. 2008), the Seventh Circuit has suggested in dicta that a court can violate a defendant's right to present a defense through a discretionary evidentiary rule such as Rule 702.
In Hepp, Chas Simonson was convicted of sexually assaulted his seven-year-old daughter. And some of the evidence used to prove that the daughter was sexually assaulted was the testimony of Nurse Julie Kennedy-Oehlert, who testified that the daughter's hymenal tissue along the lower portion of her vagina was "virtually missing." In her opinion, the only explanation was insertion of an object, such as a man's penis.
To counter this testimony, Simonson sought to develop an alternate explanation for the hymenal damage. He made an offer of proof that his daughter was severely constipated when she was one year old, and that her mother and grandmother attempted to extract the stool by pressing their thumbs against her rectal and vaginal areas as if they were trying to "pop a pimple." The state trial judge disagreed and precluded Simonson from presenting expert testimony on this issue because "[o]rdinary experience and common sense" did not reveal the link between the alleged cause and effect."
On Simonson's appeal, the Seventh Circuit affirmed, concluding that
"[w]hile there is some intuitive merit to the idea that pressure near the vaginal and rectal areas could result in tearing of the hymen, it is far from obvious. It is not like asking a jury to consider, say, the fact that a blow from a baseball bat can lead to a broken limb. Nevertheless, it is tempting to buy Simonson's argument that there was relevant expert testimony available-Kennedy-Oehlert's statement that the hymen generally stays intact "unless there is some pressure put directly on that tissue or near that tissue." It is tempting, we say, but not wholly convincing. It was reasonable to hold that this testimony did not suit the purpose because Kennedy-Oehlert announced this general proposition only as background to her specific conclusion (that the injury was caused by insertion of an object). Kennedy-Oehlert probably would have been surprised to learn Simonson's application of her testimony. That's how the state courts saw it, and we are not prepared to label that view objectively unreasonable."
So, the Seventh Circuit found no violation of Simonson's right to present a defense, but as you can see in the dicta from the above block quote, it might have found such a violation in, say, an assault case, where the defendant was trying to argue that a victim's injuries were caused by a bat-wielding co-defendant rather than by the defendant's fists.
Readers of this blog know that I am a big fan of a broad reading of the right to present a defense (indeed, my next article argues that it should apply to allegations of racial/religious prejudice by jurors), so why do I disagree with the Seventh Circuit's dicta, and why did I previously agree with the Ninth Circuit's ruling?
Well, the right to present a defense applies to cases where judges follow the letter of a per se evidentiary rule and thus exclude evidence despite the exclusion violating the spirit of the law and/or the ends of justice. Conversely, when a trial judge improperly applies a discretionary rule of evidence, such as by excluding expert evidence that a bat can break a limb, an appellate court can simply find that the judge abused his discretion and order a new trial on evidentiary grounds without having to resort to the right to present a defense.