Caseflicks

Court of Appeals for the Eighth Circuit • 2004

United States v. Nicholas Turning Bear, Iii, Also Known as Nicholas Turning Bear, Jr., III

357 F.3d 730 | 63 Fed. R. Serv. 505 | 2004 U.S. App. LEXIS 1455

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Takeaway

In short, this case underscores that when a child-abuse prosecution turns on child witnesses’ credibility, courts must honor both the defendant’s right to present admissible impeachment evidence and the Confrontation Clause’s demanding limits on remote testimony and unreliable hearsay.

Background

Nicholas Turning Bear III was convicted by a jury of five counts of aggravated sexual abuse of his young son, N.T.B., and daughter, M.T.B., in Indian country. The government’s case depended heavily on the children’s statements and credibility. There were no admissions by Turning Bear and no third-party eyewitnesses. A physical examination of M.T.B. showed findings consistent with, but not conclusive of, sexual abuse.

At trial, the district court excluded testimony from the children’s foster parent, Gloria Odens, that N.T.B. was untruthful. The court also allowed M.T.B. to testify by closed-circuit television after she became distressed in the courtroom, and admitted a videotape of M.T.B.’s earlier forensic interview. Turning Bear appealed those rulings as violations of his rights to present a defense and to confront witnesses, and also challenged his Guidelines sentence.

Issues

Issue #1

Whether excluding the foster parent’s opinion that N.T.B. was untruthful violated Turning Bear’s constitutional right to present a defense.

Holding

Yes. The testimony was admissible credibility evidence, and its exclusion deprived Turning Bear of material and favorable defense evidence without a valid evidentiary justification.

Reasoning

The Fifth and Sixth Amendments protect a criminal defendant’s right to call witnesses in his defense. That right is implicated when a court arbitrarily excludes evidence that is material and favorable to the defense and otherwise admissible under the Rules of Evidence.

Federal Rule of Evidence 608(a) permits opinion evidence attacking a witness’s character for untruthfulness, and Rule 701 requires that lay opinion be rationally based on the witness’s perceptions and helpful to deciding a fact in issue. Odens had daily contact with N.T.B. for four to six months while he lived in her home. That relationship gave her an adequate basis to form an opinion about his character for truthfulness; her proposed testimony was more than a bare or conclusory assertion.

The district court did not exclude the testimony because Odens lacked sufficient familiarity with N.T.B. Instead, it called her opinion a personal view and a “slippery slope,” while accepting the government’s incorrect characterization of the evidence as improper vouching. Those reasons did not support exclusion under Rules 608 or 701.

Rule 403 can sometimes exclude otherwise admissible character evidence, but only when its probative value is substantially outweighed by a specified danger, such as unfair prejudice, confusion, or needless cumulation. N.T.B.’s credibility was central to the prosecution, and Odens’s testimony was not cumulative. The court identified no countervailing Rule 403 concern sufficient to outweigh its substantial probative value.】【”】【},{