|Hon. Raymond C. Fisher|
A shrink finds a defendant
suffers from psychosis, has probable delusions, and a borderline personality
disorder, but the psych can’t testify as a defense expert on diminished
Crazy? The Ninth thinks so,
too. United States v. Christian, 2014
WL 1491887 (9th Cir. Apr. 17, 2014), decision available here.
Players: Decision by Judge Fisher, joined
by Judge Berzon. (Good) concurring and dissenting decision by Judge Alarcón. Id. at *10-*11.
Facts: When Christian’s car was
repossessed he was displeased with the inability of the police department to
help. Id. at *2. So displeased, in
fact, that he emailed threats to a police officer and to a prosecutor. Id. He was tried before a jury for emailing
threats, in violation of 18 USC § 875(c). Id.
Before this federal trial (near the time the emails were sent),
Christian had been evaluated by a psychologist for competency in unrelated
state proceedings. Id. That psych
considered Christian incompetent, diagnosed him with a psychosis, and
recommended that he be sent to a facility for therapeutic care and treatment. Id.
defense counsel noticed this psych as an expert to testify on diminished capacity.
Id. The district court refused to
allow this testimony, because of the different legal standards for competency
and dim cap. Id.
With no psych
evidence, a dim cap instruction was denied, and Christian was convicted. Id. at *2, *3.
Issue(s): Christian “argues that the
district court should have allowed his expert, a psychologist who had earlier
examined him for competency to stand trial, to testify regarding his diminished
capacity defense and that he was entitled to a jury instruction on diminished
capacity even without such expert testimony.” Id. at *1.
district court abused its discretion by excluding Christian’s expert solely
because he examined Christian for competency rather than for diminished
capacity. Instead of focusing exclusively on the different legal standards governing
the conclusions the expert was asked to draw, the district court should have
evaluated whether the substance of the expert’s testimony would have helped the
jury decide whether Christian could form the specific intent to threaten the
recipients of his emails . . .” “[T]he court should not have excluded such
testimony without conducting a voir dire or otherwise giving the expert an
opportunity to explain how he could provide meaningful and relevant testimony
on diminished capacity from the competency evaluation that he had conducted . .
. We . . . vacate Christian’s conviction and remand. . .” Id. at *2.
Of Note: Judge Fisher provides a thoughtful analysis of the true focus
of the inquiry in this case – the relevance
of the omitted testimony. Id. at
*5-*7. Christian is one of the best
opinions on defense expert witnesses to come out of the Ninth: it is well worth
a close read. In addition to the valuable core holding, Judge Fisher sets forth
a great new rule for the Ninth: “We . . .
hold that the rule requiring a new trial when a district court
erroneously admits prejudicial expert testimony in a civil trial, . . . also
applies to the erroneous exclusion of expert testimony from a criminal trial.” Id. at *2. (internal citation and
quotations omitted). There is, admittedly, a caveat or two to this new rule. See id. at *7 & n.3. Nonetheless,
very welcome new law.
Use: There are few things more aggravating
than a court who won’t allow a clean defense offer of proof. That happened
here: “the district court several times interrupted defense counsel’s attempt
to make a more complete offer of proof.” Id.
Fortunately, the Ninth dislikes this practice, too. In Christian, the interruptions helped the
defense dodge the tough plain error standard on appeal. Id. This passage is a handy little trial tool to shoehorn in a
defense offer of proof.
Further Reading: What really determines a federal
sentence? The offense? The judge? Or the largely unfettered power of AUSAs?
Prosecutors “have immense discretion to decide which charges to prosecute and
what charging concession to offer in the course of plea bargaining, yet a
paucity of empirical research exists on these consequential decisions.” Assoc.
Prof. Brian Johnson, “The Missing Link:
Examining Prosecutorial Decision Making Across Federal Courts.”
new 150+ page empirical report, relying on data from the DOJ, is now available here.
Labels: Alarcon, Berzon, Defense Experts, Experts, Fisher, Offer of Proof, Threats