EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, August 15, 2012

Subpoena Blues: 8th Circuit Finds That Defendant Can't Interrogate Rule 413 Witnesses Dismissed From Subpoena

Federal Rule of Evidence 413(a) provides that

In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

So, let's ay that an FBI agent meets with two women, both of whom claim that they were sexually assaulted by the defendant. As a result of those meetings, the defendant is charged with aggravated sexual abuse of a minor against one of the women, with the other woman being subpoenaed to testify against the defendant pursuant to Rule 413(a). If the second woman recants at least part of her account the evening before trial, should the defendant be allowed to call the second woman and interrogate her at trial? According to the recent opinion of the Eighth Circuit in United States v. Frederick, 2012 WL 2579686 (8th Cir. 2012), the answer is "no."

In Frederick, the facts were as stated above, with the government informing the court that it would not be calling the second woman as a witness. In response, defense counsel objected and argued that the second woman should not be released from the government subpoena. The district court, however, overruled the objection.

After the defendant was convicted, he appealed, claiming, inter alia, that he should have been allowed to question the second woman to determine whether her allegations were in any way tainted by the FBI Agent who received statements from both women. Specifically, he cited to He points to United States v. Stewart, 445 F.2d 897 (8th Cir.1971), in which the Eighth Circuit remanded a case for further disposition when a government informant recanted his corroborative testimony after trial and there was a suggestion of perjury.

The Eighth Circuit found, however, that

the present case is inapposite to Stewart because [the second woman] was never called to testify at trial and so there is no suggestion of perjury. Accordingly, [the defendant] has failed to show that the district court erred in releasing [the second woman] from the government subpoena.



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