Case o' The Week: Ninth Shuts District Court Gate(keeping) - Evans, FRE 104 and FRE 403
“[T]he prosecution has independent evidence that the defense evidence is as phony as a $3 bill.” United States v. Evans, 2013 WL 4516754, *11 (9th Cir. Aug. 27, 2013) (Gould, J., dissenting).
Maybe so. Fortunately, the Constitution provides for juries, who – as Judge Paez reminds us – are tasked with the job of weighing such evidence.
United States v. Evans, 2013 WL 4516754 (9th Cir. Aug. 27, 2013), decision available here.
Players: Decision by Judge Paez, joined by Judge Fisher. Dissent by Judge Gould.
Facts: Evans was charged with being an alien unlawfully in the U.S., and misrepresenting his identity to apply for benefits and a passport. Id. at *1. The defense was that he was actually a citizen, based on a “delayed birth certificate” issued by the State of Idaho. Id. The district court ordered a pre-trial evidentiary hearing on the certificate’s admissibility under Federal Rule of Evidence (FRE) 104. Id. at *2. At the evidentiary hearing the government introduced (a rather substantial amount) of evidence of fraud in the application for the birth certificate. Id. at *2-*3. The district court held that it was “the gatekeeper,” and under FRE 104 and 403 it excluded evidence of the certificate from trial. Id. at *3. Evans was convicted of all charges. Id.
Issue(s): “In these consolidated appeals, we clarify the limits of a trial court’s authority under Federal Rules of Evidence 104 and 403 to exclude relevant evidence when the court questions the credibility of such evidence.” Id. at *1. “On appeal, Evans argues that the exclusion of the birth certificate deprived him of his Fifth Amendment due process right to present a defense and his Sixth Amendment right for a jury to determine every element of the charges brought against him.” Id. at *4.
Held: “We hold that the district court erred in excluding the birth certificate, and that the exclusion of such significant evidence resulted in a violation of Evan’s Fifth Amendment due process right to present a defense. [T]he error was not harmless, and . . . vacate Evan’s convictions and remand for new trials.” Id. at *1.
Of Note: Evans is an important and thoughtful opinion that tackles a question of first impression in the Ninth: does FRE 104’s gatekeeping function to only permit admissible evidence mean “credible” evidence, or admissible under other Rules of Evidence? Id. at *4.
Evans holds that it is the latter: “We conclude that the trial court’s authority to determine if evidence is admissible pursuant to Rule 104(a) is necessarily limited by other rules of evidence – most importantly, Rule 402, which provides that evidence is admissible so long as (1) it is relevant, and (2) it is not other inadmissible under, inter alia, the Federal Ruled of Evidence . . . Thus, Rule 104(a) provides the trial court with the authority to decide questions that make evidence inadmissible under some other rule of evidence (or under the Constitution, a federal statute, or other Supreme Court rules), but it does not itself provide a substantive basis for excluding the evidence.” Id. at *4. “We have not previously considered whether a trial court can exclude evidence pursuant to Rule 104(a) without relying on some substantive basis outside of Rule 104(a), such as another rule of evidence, a federal statute, or the United States constitution. We now hold that it cannot.” Id. at *5.
Here, a fact finder could not determine the legitimacy of the birth certificate without making credibility findings. Credibility findings, reminds Judge Paez, are a jury’s job – not the district courts. Id. at *6.
Hard on the heels of this great FRE 104 analysis is an equally good FRE 403 discussion, emphasizing that probative weight must be weighed with respect to a material fact making the assumption that “the evidence is believed.” Id. at *6-*7. Evans is strong evidentiary bulwark protecting our right to present a defense – a worthy addition to the trial toolkit.
How to Use: Evans’ evidentiary insights are academic without relief. The path to reversal required a constitutional violation – triggering the “high burden” on the government to prove that the error was harmless ‘beyond a reasonable doubt.” Id. at *9. Here, the Ninth delivers again. Id. That key finding gives sharp teeth to these evidentiary holdings: emphasize constitutional error when fending off FRE 104 and 403 attacks.
For Further Reading: If you’re confused by the new Holder position on mand-mins and how it works in the trenches, you’re in good company. For a useful guide with good links, see a thorough blog entry here.
Image of (real!) Civil War era three dollar bill from http://quigon1.tripod.com/civil_war.html
Image of Attorney General Holder from http://www.slate.com/content/dam/slate/articles/news_and_politics/jurisprudence/2013/08/130812_JURIS_EricHolderABA.jpg.CROP.rectangle3-large.jpg
Steven Kalar, Federal Public Defender N.D. Cal. FPD. Website at www.ndcalfpd.org