Sunday, April 20, 2014

Ninth Not Crazy for Limitations on Defense Shrink: Christian and Defense Experts

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 capacity.
  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. at *3. 
  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. 
  Federal 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.

Held: “[T]he 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.

How to 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. at *4. 
  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.
For 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.” 
   This interesting new 150+ page empirical report, relying on data from the DOJ, is now available here

Image of the Hon. Raymond Fisher from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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