FEDERALIZATION TABLE

Revised 9/30/2006

 

Gail R. Weinheimer

weinheimer@ospd.ca.gov

Office of the State Public Defender

221 Main Street, 10^th Floor

San Francisco, CA 94105

415-904-5600

 

The following is a list of case authority showing how “garden variety” errors may violate the federal Constitution.  Because a federal court will not consider on habeas corpus a federal constitutional claim that was not properly preserved in state court, it is essential that all potential federal issues be so characterized and argued at trial, on direct appeal, and in state habeas proceedings.  

 

            A defendant must “fairly present” the federal law claim - both facts and law- in each appropriate state court (including a state’s highest court with powers of discretionary review), at a time when state procedural law permits consideration on the merits.  Baldwin v. Reese (2004) 541 U.S. 27; Bell v. Cone (2005) 543 U.S.447.   In order to ensure consideration of the merits in California, “a trial objection must fairly state the specific reason or reasons the defendant believes the evidence should be excluded.  If the trial court overrules the objection, ...[a] defendant may not argue on appeal that the court should have excluded the evidence for a reason not asserted at trial.” People v. Partida (2005) 35 Cal.4th 644, 646; emphasis in original.   Failure to comply with the state’s procedural rules forfeits the claim.  See, e.g., Gray v. Netherland (1996) 518 U.S. 152; Coleman v. Thompson (1991) 501 U.S. 722.

 

In addition, the 1996 amendments to the federal habeas corpus statute, including the standard of adjudication set forth in 28 U.S.C. §2254(d), and additional amendments currently under consideration by Congress,  may affect counsel’s obligation to raise federal law in general, and Supreme Court precedent in particular, during state court proceedings.

 

            A violation of a federal statute or treaty during the state court proceedings may also provide a basis for federal habeas corpus relief.  Benitez v. Garcia (9^th Cir. 2006) 449 F.3d 971 (extradition treaty violation).  Like violations of the federal Constitution, violations of statutes and treaties should also be preserved in state court.  See, e.g., Breard v. Greene (1998) 523 U.S. 371 (alleged violation of Vienna Convention was procedurally defaulted by failure to raise in state court). 

 

            The cases included in this outline identify violations of specific constitutional rights (e.g., denial of the right of confrontation guaranteed by the Sixth Amendment), as well as due process violations based on a denial of fundamental fairness.  In determining whether a specific error in a case violates federal law, counsel should also keep in mind that the arbitrary deprivation of a purely state law entitlement may also violate the Due Process Clause of the Fourteenth Amendment.  Hicks v. Oklahoma (1980) 447 U.S. 343; Hewitt v. Helms (1983) 459 U.S. 460, 466 (liberty interests protected by the Due Process Clause arise from two sources, the Due Process Clause itself and the laws of the States).   “Where a statute indicates ‘with language of unmistakable mandatory character’ [e.g., by use of the word ‘shall’] that state conduct injurious to an individual will not occur ‘absent specified substantive predicates,’ the statute creates an expectation protected by the Due Process Clause.”  Ford v. Wainwright (1986) 447 U.S. 399, 428 (conc. opn. of O’Connor, J.)   This principle may also apply to judicial holdings.  Green v. Catoe (4^th Cir. 2000) 220 F.3d 220 (state supreme court effectively denied petitioner of a previously guaranteed right when it added a new element to the test for determining whether a new trial is required where a defendant is forced to utilize a peremptory challenge to excuse a venireperson who should have been removed for cause).  

 

In addition, counsel should keep in mind that the disparate treatment of identically or similarly situated defendants may violate the Equal Protection Clause of the Fourteenth Amendment. Myers v. Ylst (9^th Cir. 1990) 897 F.2d 417.

 

            Finally, a cautionary note: in a rapidly changing legal world, counsel should shephardize the cases cited below before presenting them to a court.  

 

Pretrial Issues

 

 

Defective Information

 

1.         A  variance between the offense as alleged in the charging document and the evidence and instructions at trial violates the Sixth Amendment right to notice and the Due Process Clauses of the Fifth and Fourteenth Amendments if it deprives defendant of notice of the offense against which he must defend.  See, for example:

 

Forgy v. Norris (8^th Cir. 1995) 64 F.3d 399, 403 (failure of information to specify basis of burglary charge prejudiced defendant and deprived him of his Sixth Amendment right to be informed of the nature and cause of the accusations);

Cokely v. Lockhart (8^th Cir. 1991) 951 F.2d 916 (variance between information alleging rape by sexual intercourse and jury instruction permitting conviction based on intercourse or deviate sexual activity violated due process when state law at the time of trial treated latter as a separate offense);

 

Thomas v. Harrelson (11^th Cir. 1991) 942 F.2d 1530, 1531, citing Russell v. United States (1962) 369 U.S. 749, 763-764 (the constructive amendment of an indictment that occurs when the jury is permitted to convict a defendant upon a factual basis that effectively modifies an essential element of the charged crime, violates the Fifth and Sixth Amendments); United States v. Shipsey (9^th Cir. 1999) 190 F.3d 1081 (instructions that effectively amended the indictment violated the Fifth Amendment’s grand jury clause);

 

Sheppard v. Rees (9^th Cir. 1990) 909 F.2d 1234 (instructing the jury on felony murder, over defendant's objection, violated defendant's Sixth Amendment right to notice where the information alleged that he had violated Penal Code section 187 but did not allege felony-murder or the commission of the underlying felony, and where the concept of felony-murder was never raised prior to trial, during opening statements or by the testimony of witnesses); in accord, Tamapua v. Shimoda (9^th Cir. 1986) 796 F.2d 261; Givens v. Housewright (9^th Cir. 1986) 786 F.2d 1378, 1380; Lincoln v. Sunn (9^th Cir. 1987) 807 F.2d 805, 811-814.

 

 

Denial of Continuance

 

2.         The erroneous denial of a continuance may violate defendant's Sixth Amendment right to counsel, and his Fifth, Sixth and Fourteenth Amendment rights to present a defense.  (Gardner v. Barnett (7^th Cir. 1999) 175 F.3d 580; United  States v. Gallo (6^th Cir. 1985) 763 F.2d 1504; Bennett v. Scroggy (6^th Cir. 1986) 793 F.2d 772). 

United States v. Rivera-Guerrero (9^th Cir. 2005) 426 F.3d 1130 (erroneous denial of continuance of hearing re need to forcibly medicate defendant violated defendant’s due process right not to be involuntarily medicated in the absence of a full and fair hearing). 

 

 

Denial of Funding and Other Resources

 

3.         The erroneous denial of a request for funds for expert or investigative assistance or for other types of assistance  reasonably necessary to present  a defense may violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment,  the Sixth Amendment right to counsel, and the Fifth, Sixth and Fourteenth Amendment rights to present a defense.  (Britt v. North Carolina (1971) 404 U.S. 226, 227 (indigent defendant is entitled to “the basic tools of an adequate defense”); Ake v. Oklahoma (1985) 470 U.S. 68; Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319-320.)  See, for example:

 

Wallace v. Stewart (9^th Cir. 1999) 184 F.3d 1112 (the failure of a psychologist retained by the defense for penalty phase purposes to make a proper inquiry into the defendant’s background may constitute a failure to provide competent psychiatric assistance in violation of Ake v. Oklahoma (1985) 470 U.S. 68);

 

Terry v. Rees (6^th Cir. 1993) 985 F.2d 283 (trial court's denial of petitioner's request for an independent pathologist to challenge state's evidence regarding nature of death violated his right to present a defense);

 

Dunn v. Roberts (10^th Cir. 1992) 963 F.2d 308 (trial court's denial of funds to retain expert to assist in explaining the nature and effect of battered wife syndrome violated due process and right to present a defense);

Little v. Armontrout (8^th Cir. 1987) 819 F.2d 1425 (where state’s case rested on posthypnotic identification testimony, defendant was entitled to an expert on hypnosis);

 

Starr v. Lockhart (8^th Cir. 1994) 23 F.3d 1280, 1289-1290 (“[D]ue process requires access to an expert who will conduct not just any, but an appropriate examination,” and the right to experts who will “assist in evaluating the preparation and presentation of the defense.”)

 

Cowley v. Stricklin (5^th Cir. 1991) 929 F.2d 640 (where defendant presented ample evidence that insanity would be a significant issue at trial, refusal to grant request for a defense psychiatrist violated due process; neither the services of a psychiatrist employed by the state whose report was submitted to the court, nor the services of a psychologist who testified for defendant without charge, were adequate substitutes for a defense psychiatrist);

 

Smith v. McCormick (9^th Cir. 1990) 914 F.2d 1153 (examination by neutral psychiatrist whose report was submitted to the court did not satisfy Ake); accord, Schultz v. Page (7^th Cir.2002) 313 F.3d 1010 (appointment of psychiatrist to examine for fitness to stand trial not an adequate substitute for insanity evaluation);Doe  v. Superior Court (1995) 39 Cal.App.4th 538 (under Ake, the right to a competent expert means access to someone with expertise in the relevant specialty).

 

Riggins v. Reece (6^th Cir. 1999) 74 F.3d 732 (denial of request for the transcripts of two prior mistrials violated due process and equal protection where the reporter’s tapes were not an adequate substitute for transcripts).

 

 

Suggestive Identification Procedures

 

4.            Suggestive pretrial identification procedures may violate the Due Process Clause.  See, for example:

Simmons v. United States (1968) 390 U.S. 377, 384 (A conviction violates due process and must be set aside if a witness bases an in-court identification on a pretrial identification procedure that is “so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification”);

 

Thigpen v. Cory (6^th  Cir. 1986) 804 F.2d 893 (although not all caused by the state, pre-identification confrontations between witness and defendant were unduly suggestive, and resulting in-court identification violated due process).

 

People v. Carlos (2006) 138 Cal.App.4th 907 (six-pack photo array in which defendant’s picture was the only one displayed  with a name and identification number was unduly suggestive, and violated due process). 

 

 

Severance

 

5.            Misjoinder of counts may violate the Due Process Clause.  ( Bean v.Calderon (9^th  Cir. 1998) 163 F.3d 1073 (joinder of strong and weak murder charges made trial fundamentally unfair); Panzavecchia v. Wainwright (5^th Cir. Unit B 1981) 658 F.2d 337; Breeland v. Blackburn (5^th  Cir. 1986) 786 F.2d 1239; Proctor v. Butler (11^th Cir. 1987) 831 F.2d 1251, 1256-1257.)

 

6.            Misjoinder of defendants may violate the Due Process Clause.  (Smith v. Kelso (11^th Cir. 1989) 863 F.2d 1564 (refusal to grant motion to sever may render trial fundamentally unfair where conflict between codefendants arising from antagonistic defenses is substantial); United States v. Tootick (9^th Cir. 1991) 952 F.2d 1078 (same); Abbott v. Wainwright (5^th Cir. 1980) 616 F.2d 889; Bird v. Wainwright (5^th Cir. 1970) 428 F.2d 1017.) 

 

7.         Where separate trials are ordered, the denial of a request to be tried after a codefendant may violate due process or infringe upon the defendant’s Fifth and Sixth Amendment  rights to present material and exculpatory testimony; in determining the sequence of trials, “judicial economy must yield to a defendant’s right to a fair trial.”  (Taylor v. Singletary (11^th Cir. 1997) 122 F.3d 1390.)

 

Brady Error & Discovery Violations

 

8.         The suppression by the prosecution of material evidence favorable to the accused, including evidence bearing on the credibility of a prosecution witness, violates due process irrespective of the good or bad faith of the state and irrespective of the prosecutor’s personal knowledge of the withheld evidence.  (Kyles v. Whitley (1995) 514 U.S.419; Brady v. Maryland (1963) 373 U.S. 83; In re Brown (1998) 17 Cal.4th 873; People v. Morris (1988) 46 Cal.3d 1.)  See, for example:

 

Silva v. Woodford (9^th Cir. 2005) 416 F.3d  980 ( prosecution’s failure to disclose that a deal had been struck with counsel for the chief prosecution witness to delay his psychiatric exam until after defendant’s trial violated Brady);

Horton v.Mayle (9^th Cir. 2005) 408 F.3d 570 (failure to disclose deal between police and chief prosecution witness, if true, violated due process);

 

Pham v. Terhune (9^th Cir. 2005) 400 F.3d 740 (because failure to disclose criminalist’s notes regarding GSR testing of an alternative suspect may have violated Brady, federal habeas petitioner was entitled to discovery of the notes);  

 

Bailey v. Rae (9^th Cir. 2003) 339 F.3d 1107 (failure to disclose therapy reports regarding victim’s capacity to consent to sexual activity violated due process);

 

Benn v. Lambert (9^th Cir. 2002)  283 F.3d 1040 (failure to disclose evidence of informant’s persistent misconduct when acting as an informant in other cases, including stealing money and drugs and smuggling drugs into prison, the informant’s false accusation that defendant committed another murder and the benefits the informant received for his testimony, violated due process, particularly where the state failed to inform the defense that the informant would be a witness until the day before trial; state’s failure to disclose that experts concluded that a fire at defendant’s home was accidental, instead disclosing only a report that was misleading, also violated Brady);  

 

Crivens v. Roth (7^th Cir. 1999) 172 F.3d 991 (failure to disclose criminal records of prosecution’s  witnesses for impeachment, as requested by defendant, violated Brady);

 

Carriger v. Stewart (9^th Cir.1997)(en banc) 132 F.3d 463 (prosecution deprived defendant of due process by failing to disclose a Department of Corrections file indicating that the state’s star witness (who later confessed to the murder) had a long history of lying to the police and blaming his crimes on other people); Singh v. Prunty (9^th Cir. 1998) 142 F.3d 1157 (prosecution’s failure to disclose agreement of substantial benefits in exchange for testimony of heroin-addicted informant was material, notwithstanding the existence of significant independent evidence incriminating Singh); 

United States v. Kojayan (9^th Cir. 1993) 8 F.3d 1315 (government's refusal to disclose whether uncharged codefendant had agreed to cooperate, and prosecutor's false argument at trial that he could not call the codefendant as a witness because of his right to remain silent, violated due process and required, at a minimum, a new trial); United States v. Brumel-Alvarez (9^th Cir. 1992) 991 F.2d 1452 (government's withholding of DEA agent's memo criticizing informant's credibility and role in undercover operation leading to defendant's prosecution violated due process and required a new trial);

 

Jacobs v. Singletary (11^th Cir. 1992) 952 F.2d 1282 (failure to disclose statements of accomplice made during a lie detector test administered by police, which statements contradicted witness' testimony at trial and supported petitioner's defense, violated Brady and compels habeas relief); see also Carter v. Rafferty (3^rd Cir. 1987) 826 F.2d 1299;

Brown v. Borg (9^th Cir. 1991) 951 F.2d 1011 (prosecutor's failure to disclose that victim's personal property had been returned to victim's family violated due process and, coupled with state's reliance on theory that property was stolen, compels habeas relief);

Sanchez v. United States (9^th Cir. 1995) 50 F.3d 1448, 1453 (Brady violation supports challenge to voluntariness of guilty plea).

 

Miller v. Angliker (2^nd Cir. 1988) 848 F.2d 1312 (Brady applies even where defendant pleads not guilty by reason of insanity; failure to disclose evidence that another person may have perpetrated the offense violated due process);

 

Bagley v. Lumpkin (9^th Cir. 1986) 798 F.2d 1297 (government's suppression of material evidence regarding an agreement for compensation between government and chief prosecution witnesses violated due process and undermined confidence in the outcome of the trial).

 

9.         The trial court’s denial of a request for  access to confidential records prior to or during trial may violate the Compulsory Process and Confrontation Clauses of the Sixth Amendment, and the Due Process Clause.  (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 57-58; People v. Harmon (1997) 15 Cal.4th 1117.) 

 

10.         Although a defendant does not have a federal constitutional right to the discovery of inculpatory evidence, the late disclosure of inculpatory evidence can render a trial so fundamentally unfair as to violate due process; "[f]or example, a trial could be rendered fundamentally unfair if a defendant justifiably relies on a prosecutor's assurances that certain inculpatory evidence does not exist and, as a consequence, is unable effectively to counter that evidence upon its subsequent introduction at trial."  (Lindsay v. Smith (11^th Cir. 1987) 820 F.2d 1137, 1151.)  See, for example:

 

Grey v. Netherland (1996) 518 U.S. 152, 164 (the prosecutor’s deliberate misleading of the defense about the evidence it intends to produce violates the Due Process Clause).

 

Mauricio v. Duckworth (7^th Cir. 1988) 840 F.2d 454 (failure of state to disclose identity of its rebuttal witness, despite court order to do so,  deprived petitioner of due process; the fact that accused did not seek a continuance to investigate the credibility of the surprise witness did not preclude a finding of a due process violation, because accused was entitled to an opportunity pretrial to make a fully informed decision as to whether or not to present an alibi defense);

 

Coleman v. Calderon (9^th Cir. 2000) 210 F.3d 1047, 1052 (panel assumes without deciding that prosecutor’s failure to comply with discovery order concerning the testing of physical evidence   violated due process, but holds that petitioner was not prejudiced).

 

11.       The prosecution’s violation of its reciprocal discovery duties under state law may violate the Due Process Clause.  (Fox v. Mann (2^nd Cir. 1995) 71 F.3d 66, 70; Thompkins v. Cohen (7^th Cir. 1992) 965 F.2d 330, 333.)

 

United States v. Bahamonde (9^th Cir. 2006) 445 F.3d 1225 (application of regulation that required party seeking information from the Department of Homeland Security to set forth in writing the nature and relevance of the testimony sought violated the Due Process Clause because the regulation did not impose a reciprocal duty on the government to provide notice of the evidence it would use to rebut the demanded testimony).

 

           

Destruction or Failure to Preserve Evidence

 

12.       The state's bad faith failure to collect potentially exculpatory evidence, like the bad faith failure to preserve such evidence, violates due process.  (Arizona v. Youngblood (1988) 488 U.S. 51, 58; Miller v. Vasquez (9^th Cir. 1989) 868 F.2d 1116.)

 

See, for example, Commonwealth of the Northern Mariana Islands v. Bowie, 236 F.3d 1083 (9^th Cir. 2001) (By failing to investigate the authorship of a letter found in the possession of the codefendant after his arrest, suggesting the existence of a conspiracy to present false testimony to implicate defendant, and presenting the testimony of the accomplices at trial, the prosecution violated its federal due process obligation to collect potentially exculpatory evidence, to prevent fraud on the court and to elicit the truth, and interfered with defendant’s Sixth Amendment right to present witnesses in his behalf.)  

           

 

Closure of Courtroom

 

13.       The closure of the courtroom without consideration of alternatives violates defendant’s Sixth Amendment right to a public trial.  Waller v. Georgia (1984) 467 U.S. 39.

 

            See, for example, Judd v. Haley (11^th Cir. 2001)  250 F.3d 1308  (Failure of trial court to make any on-the-record findings to support closure of courtroom during testimony of 14 year-old victim, over defendant’s objection, violated defendant’s right to a public trial). 

 

 

Errors in Jury Selection 

 

14.            Although a trial judge has broad latitude in structuring and conducting voir dire, a defendant's Sixth Amendment right to an impartial jury and Fourteenth Amendment right to due process requires that the court ask sufficient questions during voir dire so that "fundamental fairness" is guaranteed.  [Mu'min v. Virginia (1991) 500 U.S. 415, 114 L.Ed.2d 493 (judge's refusal to voir dire about contents of news reports concerning accused did not violate Sixth and Fourteenth Amendments under the circumstances of this case); Turner v. Murray (1986) 476 U.S. 28, 36, n. 9 (in an inter-racial case, trial court's refusal to voir dire the jury on racial prejudice violated petitioner's right to an impartial jury, guaranteed by the Sixth Amendment, as well as the due process clause, and required reversal of the death judgment but not the underlying conviction);  People v. Wilborn (1999) 70 Cal.App.4th 339 (where a  black defendant  was arrested by a white police officer for possession of cocaine, and the defense argued that the police had fabricated a reason to stop and detain him, trial court’s refusal to question on racial bias deprived defendant of a fair and impartial jury); Britz v. Thieret (7^th Cir. 1991) 940 F.2d 226, 232).]

 

            Comments by the trial court during jury selection may violate a defendant’s rights to a fair and impartial jury and due process of law as well.   See, e.g.:

 

People v. Mello (2002) 97 Cal.App.4th 511 (direction to prospective jurors that, if they harbored racial bias against the African American defendant, they should lie under oath and make up some other reason to be excused, was grave error and violated due process).  

 

People v. Johnson (2004) 119 Cal.App.4th 976 (trial court’s “tinkering” with the statutory definition of reasonable doubt during voir dire lowered the prosecution’s burden of proof below the due process requirement of proof beyond a reasonable doubt).

 

15.       The erroneous limitation or impairment of the exercise of peremptory challenges or challenges for cause may violate the Sixth Amendment right to an impartial trial and/or the Due Process Clause of the Fourteenth Amendment. “Although peremptory challenges are not constitutionally required, due process may be violated by a sytem of challenges that is skewed towartd the prosecution if it destroys the balance needed for a fair trial.” United States v.Harbin (7^th Cir. 2001) 250 F.3d 532 (trial court’s allowance of prosecution’s mid-trial peremptory challenge violated due process). See, for example:

 

United States v. Nelson (2^nd Cir. 2002) 277 F.3d 164 (district court’s open manipulation of the jury selection process, including its denial of defendant’s  for-cause challenge to a juror and its out-of-order selection of alternates to replace sitting jurors, done for the stated purpose of achieving a racially and religiously balanced jury, resulted in the empanelling of a biased juror, and violated defendant’s Sixth and Fourteenth Amendment  right to an impartial jury);

 

VanSickel v. White (9^th Cir. 1999) 166 F.3d 953 (depriving defendant of half the challenges allowed under California law violated due process);

United States v. Underwood (7^th Cir. 1997) 122 F.3d 389 (court’s unintentional misleading description about jury selection procedures, and the failure to clear up the confusion when it surfaced, interfered with defendant’s intelligent exercise of peremptory challenges, in violation of Due Process);

Ross v. Oklahoma (1988) 487 U.S. 81 (although the erroneous refusal to excuse a pro-death juror for cause did not, under the circumstances of this case, violate due process, depriving a defendant of his full allotment of peremptory challenges under state law may violate due process).

 

16.       The failure to excuse biased jurors for cause violates the Due Process Clause and the Sixth Amendment right to a fair trial before an impartial jury.  See, for example:

 

Dyer v. Calderon (9^th Cir.1998) (en banc)151 F.3d 970 (Juror’s false answers ion voir dire and her subsequent lies to cover up her false answers violated due process).

 

Mach v. Stewart (9^th Cir. 1997) 129 F.3d 495 (trial court’s refusal to grant a mistrial or conduct further voir dire after a prospective juror made repeated expert-like statements concerning the veracity of a child’s accusations of sexual abuse violated petitioner’s right to an unbiased jury);

Johnson v. Armontrout (8^th Cir. 1992) 961 F.2d 748 (failure to remove two jurors who had previously convicted another person for the same robbery charged against Johnson, where those jurors formed the opinion that Johnson was guilty before his trial began, violated his Sixth and Fourteenth Amendment rights to be tried by an impartial jury);

 

Burton v. Johnson (10^th Cir. 1991) 948 F.2d 1150 (where petitioner's defense to the murder of her husband was that she suffered from battered woman's syndrome, a juror's failure to disclose on voir dire her own abuse and family situation deprived petitioner of her due process right to a fair trial by an impartial jury).

 

17.       The Equal Protection and Due Process Clauses prohibit a prosecutor from excluding qualified and unbiased persons from the jury on the grounds of race or sex, regardless of defendant's race and sex.  (Miller-El v. Dretke (2005) ___ U.S. ___, 125 S.Ct. 2317, 162 L.Ed.2d 196; Batson v. Kentucky (1986) 476 U.S. 79;  Powers v. Ohio (1991) 499 U.S. 400; J.E.B. v. Alabama (1994) 511 U.S. 127; McClain v. Prunty (9^th Cir. 2000) 217 F.3d 1209; Turner v. Marshall (9^th Cir. 1997) 121 F.3d 1248).

 

18.       The use of  a dual jury in a case resulting in a death judgment may violate a defendant's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments, even without a showing of specific prejudice.  [Beam v. Paskett (9^th Cir. 1993) 3  F.3d 1301, 1303-1304, overruled in part in Lambright v. Stewart (9^th Cir.1999)(en banc) 191 F.3d 1181 (the use of dual juries in a capital case is not per se constitutional error, either in general or under the particular circumstances in this case).

 

 

Trial Rights

 

 

Errors Affecting the Admission of Prosecution Evidence

 

19.       Although a state court's erroneous application of state law does not, standing alone, violate the federal constitution, state law errors that render a trial fundamentally unfair violate the Due Process Clause.  (Estelle v. McGuire (1991) 502 U.S. 62.)

 

            Even correct applications of state law by state courts may violate the Due Process Clause, or some other federal constitutional guarantee:

           

"While adherence to state evidentiary rules suggests that the trial was conducted in a procedurally fair manner, it is certainly possible to have a fair trial even when state standards are violated; conversely, state procedural rules and evidentiary rules may countenance processes that do not comport with fundamental fairness.  The issue . . . is whether the state proceedings satisfied due process." (Jamal v. VanDeKamp (9^th 1991) 926 F.2d 918, 919.)

 

State court procedural or evidentiary rulings can violate federal law “either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process.”  (Walters v. Maass (9^th Cir. 1995) 45 F.3d 1355, 1357.)  See, for example:

 

People v. Wood (2002) 103 Cal.App.4th 803 (prosecution witness’  testimony that defendant refused to allow him to enter his property without a warrant violated defendant’s Fourth and Fifth Amendment rights);  

 

Snowden v. Singletary (11^th Cir. 1998) 135 F.3d 732, 738 (allowing expert testimony that 99% of child sexual abuse victims tell the truth usurped the jury’s fact-finding role and made the trial fundamentally unfair);

 

McKinney v. Rees (9^th Cir. 1993) 993 F.2d 1378 (character evidence of propensity--defendant’s possession of and fascination with knives-- did not support any permissible inference relevant to defendant’s prosecution for the stabbing-murder of his mother, and violated due process);

                                               

Dudley v. Duckworth (7^th Cir. 1988) 854 F.2d 967 (admission of evidence that witness for state received threats that were not connected to the defendant, sanctioned by state court on the theory that it was relevant to explain witness' nervousness, violated due process under the circumstances of this case);

 

Ferrier v. Duckworth (7^th Cir. 1990) 902 F.2d 545 (admission of irrelevant photos of blood-spattered scene of the crime, enlarged to twelve feet square, did not render trial fundamentally unfair "if only because defendant mysteriously failed to object -- and continues not to object -- to the introduction . . . of even more lurid and disgusting photographs: those of the corpse and wound," which rendered incremental effect of crime scene photos insignificant).

 

            In addition, state law errors that might not be so prejudicial as to amount to a deprivation of due process when considered alone, may cumulatively produce a trial setting that is fundamentally unfair.  (Mak v. Blodgett (9^th Cir.1992) 970 F.2d 614, 622;  People v. Hill (1998) 17 Cal.4th 8000, 844-845.)

 

20.            Insufficient admissible evidence to support the jury's verdicts and findings violates the due process clause of the Fourteenth Amendment.  (Piaskowski v.Bett (7^th Cir. 2001) 256 F.3d 687 (petitioner’s presence at the scene of the crime and his reference to “shit going down” was constitutionally insufficient to sustain murder conviction based on conspiracy theory); Moore v. Parke (7^th Cir. 1998)148  F.3d 705 (evidence insufficient to support finding that petitioner was a habitual offender, as defined by state law); Mikes v. Borg (9^th Cir. 1991) 947 F.2d 353; Summit v. Blackburn (5^th Cir. 1986) 795 F.2d 1237, 1244; Jackson v. Virginia (1979) 443 U.S. 307.)

 

21.       The retroactive application of a statute or judicial decision reducing the quantum of evidence necessary to convict violates the Ex Post Facto or Due Process Clauses.  See, for example:

 

Carmell v. Texas (2000) 529 U.S. 513, 120 S.Ct. 1620, 146 L.Ed.2d 577 (retrospective application of statute repealing a corroboration requirement violated the Ex Post Facto Clause).]

 

People v. Blakely (2000) 23 Cal.4th 82, 999 P.2d 675, 96 Cal.Rptr. 2d 451 (state supreme court’s holding that a person who kills unintentionally in unreasonable self defense is guilty of voluntary manslaughter rather than the less serious offense of involuntary manslaughter is an unforeseeable judicial enlargement of the crime of voluntary manslaugher, and cannot be applied retroactively under the Due Process Clause).

 

            The retroactive application of a procedural change that makes a defendant liable to punishment when none had been available also violates ex post facto principles.  Stogner v. California (2003) 539 U.S. 607 (retroactive application of statute reviving a previously expired statute of limitations violated ex post facto clause).   

 

22.       The state’s introduction of “testimonial hearsay”  from an unavailable witness whom defendant had no prior opportunity to cross-examine violates the Confrontation Clause of the Sixth Amendment.  Crawford v. Washington (2004) 541 U.S. 36.   See, e.g.,     

Davis v. Washington (2006) 126 S.Ct. 2266, 2273-74 (statement obtained by police interrogation is testimonial if “when the circumstances objectively indicate that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution);

 

People v. Pirwani (2004)  119 Cal.App.4th 770  (Admission of videotaped statement by victim who died before trial violates  Sixth Amendment, even if there has been a judicial determination that the statement bears guarantees of trustworthiness, unless defendant had a prior opportunity to cross-examine the declarant);

 

People v. Sisavath (2004) 118 Cal.App.4th  1396  (admission of out-of-court statements made to county employee trained to interview children suspected to be the victims of abuse violated Confrontation Clause where defendant had no prior opportunity  to cross-examine).

 

            Where the hearsay evidence proffered by the state is “non-testimonial,” its admission will violate the Sixth Amendment and /or due process if it does not fall within a firmly rooted hearsay exception or bear sufficient indicia of reliability, as required by Ohio v. Roberts (1980) 448 U.S. 56.  See, e.g., United States v Franklin (6th Cir. 2005) 415 F.3d 537, 546 (collecting cases holding that post-Crawford, Ohio v. Roberts governs admissibility of non-testimonial hearsay). 

 

23.            Evidence which state court finds properly admitted under state exception to hearsay rule may nonetheless violate the Confrontation Clause of the Sixth Amendment.  (Dutton v. Evans (1970) 400  U.S. 74. )  See, for example:

Howard v. Walker (2^nd Cir 2005) 406 F.3d 114 (2^nd  Cir. 2005) (medical examiner’s reliance on inadmissible hearsay statement of defendant’s co-conspirator to support opinion about cause of death violated Confrontation Clause);

Thomas v. Hubbard (9^th Cir. 2001) 273 F.3d 1164, overruled on other grounds in Payton v. Woodford (9^th Cir. 2003) 346  F.3d 1204, 1218 fn.18 (admission of triple hearsay statements suggesting that defendant had motive to murder victim and access to weapon violated Confrontation Clause; even if the hearsay was received for a non-hearsay purpose, defendant’s confrontation right was violated because the evidence was so prejudicial that the jury would be unable to follow a limiting instruction but would have considered the statements for their truth);

 

People v. Kons (2003) 108 Cal.App.4th 514 (admission of hearsay statement identifying defendant as the perpetrator under Cal.Evid.C. §1370 violated Sixth Amendment where statement lacked sufficient indicia of reliability; Section 1370, enacted in 1995, is not a firmly rooted hearsay exception for Confrontation Clause purposes);

 

Whelchel v. State of Washington (9^th Cir. 2000) 232 F.3d 1197 (unavailable codefendants’ tape-recorded statements to the police in which they attempted to minimize their own culpability were “textbook examples” of codefendant statements that are presumptively unreliable, and their admission violated petitioner’s rights under the Confrontation Clause);

Lilly v. Virginia (1999) 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 [admission of the untested confession of an accomplice incriminating  petitioner as a declaration against interest under state law violated the Confrontation Clause, where neither the accomplice’s words  nor the setting in which he was interrogated “provide any basis for concluding that his comments about petitioner’s guilt were so reliable that there was no need to subject them to adversarial testing in a trial setting.” (119 S.Ct. at 1900.)]

 

Offor v. Scott (5^th Cir. 1999) 72 F.3d 30 (admission of videotaped police interview of child at which no representative of defendant was present violated the Confrontation Clause);

 

Webb v. Lewis (9^th 1994) 44 F.3d 1387 (admission of videotaped interview of victim violated Confrontation Clause where the tape did not fall within any recognized exception to the hearsay rule and did not otherwise carry guaranties of trustworthiness); 

Ring v. Erikson (8^th Cir. 1992) 983 F.2d 818 (child-victim's videotaped statement to doctor admitted under state law medical-diagnosis-or-treatment exception violated Confrontation Clause where the traditional basis for assuming reliability of such a statement was not present; child-victim's hearsay statement to a social worker, admitted under a newly-adopted exception for the statements of a child describing a sexual act, also violated Sixth Amendment where there were insufficient indicia of reliability as defined in Idaho v. Wright (1990) 497 U.S. 805);

 

Reed v. Thalacker (8^th Cir. 1999) 198 F.3d 1058 (child-victim’s statements to her mother and babysitter accusing her father of molesting her, admitted under state law excited utterance exception, without a showing of how muct time elapsed betwen the alleged assaults and the statement,  violated defendant’s Sixth Amendment rights).

 

24.            Hearsay evidence improperly admitted under state rules of evidence may also violate the Confrontation Clause.  See, for example:

 

Brown v. Keane, 355 F.3d 82 (2^nd Cir. 2004) (Admission of  911 tape violated Confrontation Clause where the tape did not qualify under state law hearsay exception for “present sense impression” and did not bear particularized guarantees of reliability  because the caller likely did not witness the incident).

 

Bains v. Cambra (9^th Cir. 2000) 204 F.3d 964, 973-974 (evidence improperly admitted under California’s state-of-mind and co-conspirator exceptions to hearsay rule violated Bains’ Sixth Amendment right to confront witnesses against him); 

 

Sherley v. Seabold (6^th Cir. 1991) 929 F.2d 272 (defendant's right of confrontation violated where prosecutor's efforts to secure victim's attendance at trial were inadequate, and hearsay statements identifying defendant as her attacker were insufficiently trustworthy to justify admission because victim suffered memory loss prior to crime, her condition worsened after crime, and she was sometimes incoherent and described the crime inconsistently);

 

Ferrier v. Duckworth (7^th Cir. 1990) 902 F.2d 545, 548 (although an error in the application of the hearsay rule is not automatically a violation of the Confrontation Clause, a "particularly gross error in the application of the rule or a cascade of such errors that transformed the defendant's trial into one in which the only witnesses were policemen, prosecutors and informants -- so that the trial resembled the trial by affidavit that it was the particular historical purpose of the confrontation clause to end . . . would violate the clause");

 

Gaines v. Thieret (7^th Cir. 1988) 846 F.2d 402, 405 ("The introduction of hearsay evidence . . . may, if it does not fall within 'a firmly rooted hearsay exception' [citation omitted] violate a defendant's right of confrontation even if the evidence is not so damaging that a limiting instruction would be futile");

 

Ellison v. Sachs (4^th Cir. 1985) 769 F.2d 955 (admission of testimony re child victim's out-of-court statements violated right of confrontation where victim was not available to testify as a result of state court's finding of incompetency and discrepancies indicated hearsay was not reliable); in accord, Gregory v. State of North Carolina (4^th Cir. 1990) 900 F.2d 705.

 

United States v. Chu Kong (9^th Cir. 1991) 935 F.2d 990 (use of public records from Hong Kong to prove prior convictions violated Confrontation Clause; although the records were authenticated, hearsay contained therein did not fall within any established exception to the hearsay rule and were not sufficiently trustworthy to fall within the residual exception to the hearsay rule where, inter alia, there was no evidence as to who provided the information, or whether they had personal knowledge of the convictions).

 

25.       The admission of evidence of the nature of a prior felony conviction, where the nature of the prior conviction is irrelevant to any disputed issue at trial, may violate due process.  (People v. Valentine (1986) 42 Cal.3d 170, 177; see also Bryson v. State of Alabama (5^th Cir. 1981) 634 F.2d 862, where the fact of the prior conviction was irrelevant.)

 

            The Due Process Clause may also be violated where the state permits proof of a prior conviction to enhance or aggravate the offense, but the trial court fails to advise the jury of the limited purpose for which that evidence may be considered.  (Julius v. Johnson (11^th Cir. 1988) 840 F.2d 1533, amd. 854 F.2d 400.)

 

See also Boyde v. Brown, 404 F.3d 1159, 1173, amended at 421 F.3d 1154 (9^th Cir 2005) (“Because the jury could draw a permissible inference from evidence of Boyde’s [prior] robbery, admission of that evidence did not violate due process, so long as the jury was instructed it could not draw any improper inferences from it.”)

 

26.       The admission of bad act testimony violates due process where "the 'admission of the testimony was arbitrary or fundamentally unfair.'  Colley v. Sumner, 784 F.2d 984, 990 . . ."  (Terrovona v. Kincheloe (9^th Cir. 1988) 852 F.2d 424, 428-429);

 

27.       The state's use of hypnotically refreshed testimony may violate a defendant's Sixth and Fourteenth Amendment rights of confrontation and a fair trial based on reliable evidence.  (Bundy v. Wainwright (11^th Cir. 1988) 850 F.2d 1402, 1414-1420.)

 

28.            Ordering a nontestifying defendant to speak the words uttered during a robbery where the witnesses’ ability to identify the perpetrator’s voice was not in issue violates due process.  (United States v. Olvera (9^th Cir. 1994) 30 F.3d 1195.)

 

29.            Prosecutor's knowing use of perjured testimony violates due process.  (Mooney v. Holohan (1935) 294 U.S. 103, Pyle v. Kansas (1942) 317 U.S. 213; United States v. Agurs (1976) 427 U.S. 97.)  This includes failure to correct false testimony (Alcorta v. Texas (1957) 355 U.S. 28), including false testimony concerning a witness' plea bargain agreement (Napue v. Illinois (1959) 360 U.S. 264),  failure to correct misleading testimony, and the pursuit of fundamentally inconsistent theories in separate trials against separate codefendants charged with the same crime.  See, for example:

 

Hayes v. Woodford (9^th Cir. 2005) 399 F.3d 972 (en banc) (Prosecutor’s failure to correct witness’ false testimony that he had not been offered leniency violated due process, even though the witness was not aware of the offer of leniency because the offer had been communicated only  to the witness’ attorney; although the witness did not commit perjury, his testimony was false and the prosecutor knew it); 

 

United States v. LaPage (9^th Cir. 2000) 231  F.3d 438  (Conviction reversed where prosecutor failed to immediately correct the testimony of a prosecution witness known to be false; the government’s “duty to correct perjury is not discharged merely because the defense counsel knows, and the jury may figure out, that the testimony is false,” nor by the prosecutor’s acknowledgement of the lie in rebuttal argument, when it was too late for the defense to explain why the lie was important);

 

Brown v. Borg (9^th Cir. 1991) 951 F.2d 1011 (prosecutor's knowing introduction and reliance on false evidence suggesting that murder had occurred during course of robbery violated due process, and required that Brown's murder conviction be reversed, rather than merely reduced from first to second degree murder).          

 

United States v. Foster (8^th Cir.1988) 874 F.2d 491 (due process is violated even if defendant’s counsel  was aware of the false and misleading testimony but failed to correct it).

 

In re Sakarias (2005) 35 Cal.4th 140, 145  (prosecutor violated defendant’s due process rights “by intentionally and without good faith justification arguing inconsistent and irreconcilable factual theories in [the separate trials pf defendant and codefendant], attributing to each in turn culpable acts that could have been committed by only one person”). 

 

Smith v. Groose (8^th Cir. 2000) 205 F.3d 1045 (due process is violated where , in two separate trials, the prosecutor utilized mutually inconsistent statements by a witness as to the timing of the  murder).

Nguyen v. Lindsay (9^th Cir. 2000) 232 F.3d 1236 (prosecutor’s pursuit of fundamentally inconsistent theories against separately-tried codefendants may violate due process if the prosecutor kowingly uses false evidence or otherwise acts in bad faith).

 

30.            Perjured testimony given by a prosecution witness may violate due process even where the prosecution neither knew or should have known about it.  Killian v. Poole (9^th Cir. 2002) 282 F.3d 1204.  Whether or not the prosecution knew at the time of trial that evidence used against the defendant was false, allowing a conviction to stand despite present knowledge that material evidence was false violates due process.  Hall v. Department of Corrections (9^th Cir. 2003) 343 F.3d 976; accord, Sanders v. Sullivan (I) (2^nd  Cir. 1988) 863 F.2d 218, 222; Sanders v. Sullivan (II) (2^nd Cir. 1990) 900 F.2d 601 (due process is violated when, despite the absence of state involvement, "a credible recantation . . . would most likely change the outcome of the trial and a state leaves the conviction in place.")

 

31.       The state's use of the judge presiding at trial as a witness to establish the essential elements of the charged crime violates due process.  (Brown v. Lynaugh (5^th Cir. 1988) 843 F.2d 849.)

 

32.       The state's reliance on the testimony of the district attorney prosecuting the case, or on the testimony of a juror who was sworn but subsequently excused because of his personal knowledge regarding the case, may also violate due process or the Sixth Amendment right to an impartial jury.  (Walker v. Davis (11^th Cir. 1988) 840 F.2d 834; People v. Sanders (1988) 203 Cal.App.3d 1510.)

 

33.       The prosecution’s use of the testimony of a bailiff who attended the jury during the trial violates a defendant’s Sixth and Fourteenth Amendment rights to a fair trial before an impartial tribunal.  Agnew v. Leibach (7^th Cir. 2001) 250 F.3d 1123; Turner v. Louisiana (1969) 379 U.S. 466.

  

34.       The prosecution’s use of evidence in breach of an agreement made with and relied on by the defendant violates due process.  (People v. Quartermain (1997) 16 Cal.4th 600; Hawkins v. Hannigan (10^th Cir. 1999) 185 F.3d 1146.)

 

35.       The prosecution’s use of guilt-assuming hypothetical questions undermines the presumption of innocence and violates due process.  United States v. Shwayder (9^th Cir. 2002) 312 F.3d 1109. 

 

36.            Prosecutor’s questions asking defense witnesses to comment on the veracity of the government witnesses’ testimony may violate due process  right.  United States v. Combs (9^th Cir. 2004) (improper cross-examination calling for defendant to impugn the integrity of DEA agent and improper prosecutorial vouching for the agent’s credibility compromised defendant’s due process rights and the integrity of the trial); United States v. Geston (9^th Cir. 2002) 299 F.3d 1130 (prosecutor’s repeated questions to defense witnesses, asking whether, if a government witness had testified to a specific fact, that witness would be lying, impacted defendant’s due process rights where defendant’s earlier trial, which did not include the improper questions, ended in a hung jury).   

 

 

Errors Affecting the Introduction of Defense Evidence 

 

37.       State evidentiary rulings which deny defendant the right to testify may violate his federal constitutional right to testify in his own behalf, a right which is derived from the Fourteenth Amendment's due process clause, the Sixth Amendment's compulsory process clause, and the Fifth Amendment's privilege against self-incrimination.  See, for example:

 

Greene v. Lambert (9^th Cir. 2002) 288 F.3d 1081 (trial court’s exclusion of testimony from the victim, a trained psychiatric nurse who was defendant’s therapist, about defendant’s dissociative identity disorder, and preclusion of defendant’s testimony about his own mental condition, violated the Sixth Amendment);

 

Gill v. Ayers (9^th Cir. 2003) 322 F.3d 678 (refusal to permit defendant to testify at a 3 Strikes sentencing hearing violated due process);

 

Rock v. Arkansas (1987) 483 U.S. 44 (state court's application of per se rule prohibiting the admissibility of criminal defendant's hypnotically refreshed testimony violated defendant's right to testify on her own behalf; "restrictions of a defendant's right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve");

Martinez v. Ylst (9^th Cir. 1991) 951 F.2d 1153 (in a pre-Collins California trial, court's refusal to exclude defendant's prior robbery conviction which resulted in a decision not to testify was reversible constitutional error).

 

38.       Where a defendant elects not to testify as a result of the state court's ruling that he will be subject to impeachment with a prior conviction which is subsequently held constitutionally invalid, the conviction obtained at the trial at which defendant did not testify may violate the Fourteenth Amendment.  [Biller v. Lopes (2^nd Cir. 1987) 834 F.2d 41 (state's use for impeachment purposes of a prior conviction obtained by compelled testimony violated Biller's Fifth and Fourteenth Amendment rights).]

 

39.       Forcing a defendant to stand trial in jail clothing or imposing physical restraints may violate the Due Process and the Sixth Amendment right to trial by jury by undermining the presumption of innocence. Estelle v. Williams (1976) 425 U.S. 501, 504-505;  Deck v. Missouri (2005) 544 U.S. 622 (Due Process Clause forbids the use of  restraints visible to the jury during trial unless that use is justified by an essential state interest).  See, for example:

 

Felts v. Estelle (9^th Cir. 1989) 875 F.2d 785 (failure to provide indigent pro per defendant with suitable civilian clothing until six days after trial began violated the Due Process Clause and the presumption of innocence);

Spain v. Rushen (9^th Cir. 1989) 883 F.2d 712 (trial court's failure to consider or employ less drastic alternatives to shackling violated due process); in accord, Rhoden v. Rowland (9^th Cir. 1998) 172 F.3d 633 (unjustified shackling of defendant throughout trial violated due process).

           

Gonzalez v. Pliler (9^th Cir. 2003) 341 F.3d 897 (trial court’s requirement that defendant wear a stun belt throughout his trial, including jury selection and his testimony, violated due process).

 

United States v. Howard, 429 F.3d 843 (9^th Cir. 2005) (General  policy requiring all  defendants to wear leg shackles at first appearance before judge violates due process in the absence of  specific findings showing adequate justification for a district-wide policy). 

            An excessive number of uniformed guards or other security arrangements may also violate the Sixth and Fourteenth Amendments. [Holbrook v. Flynn (1986) 475 U.S. 560; Morgan v. Aispuro (9^th Cir. 1991) 946 F.2d 1462; Young v. Callahan (1^st Cir. 1983) 700 F.2d 32 (forcing defendant to sit in the prisoner’s dock throughout the trial without justification violates due process).]

 

40.       In the absence of a finding of "overriding justification and a determination of medical appropriateness," the forced administration of antipsychotic medication, violates the Sixth and Fourteenth Amendments.  (Riggins v. Nevada (1992) 504 U.S. 127.)  See also United States v. Rivera-Guerrero (2005) 426 F.3d 1130.  

 

41.       The exclusion of evidence proffered by the defense may violate the defendant's Fifth and Sixth Amendment  rights to present a defense and the Due Process Clause of the Fourteenth Amendment.  See, for example:

Holmes v. South Carolina (2006) 126 S.Ct. 1727 (One-sided rule for determining admissibility of defense evidence of third party culpability (requiring exclusion when the prosecution has presented forensic evidence that strongly supports a guilty verdict, without reference o the proffered evidence) was arbitrary and violated defendant’s right to a meaningful opportunity to present a complete defense). 

 

Howard v. Walker, 406 F.3d 114 (2^nd Cir. 2005)  (Trial court’s ruling that testimony by a defense expert to rebut state medical examiner’s opinion about cause of death would open the door to the admission of the codefendant’s inadmissible “Bruton infected”  hearsay statement of the codefendant, violated defendant’s right to present a defense under the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment). 

 

Chia v. Cambra, 360 F.3d 997 (9^th Cir. 2004) (Trial court’s exclusion of reliable evidence of defendant’s innocence – the codefendant’s hearsay statements to police that Chia was not involved in the offense  – violated due process).

 

Alcala v. Woodford (9^th Cir. 2003) 334 F.3d 862 (exclusion of expert testimony regarding whether the key prosecution witness had been hypnotically influenced in various interviews with police investigators violated petitioner’s due process right to a fundamentally fair trial and to present witnesses in his defense); 

 

Depetris v. Kuykendall (9^th Cir. 2001) 239 F.3d 1057 (state trial court violated petitioner’s federal due process right to defend against the charges by excluding evidence of the victim’s journal and all references to it, where the petitioner presented evidence at trial of imperfect self-defense and the journal in which the victim had detailed his acts of violence against others provided corroboration for petitioner’s belief that she was in imminent danger; “given the subjective element of imperfect self-defense, the erroneous exclusion of this evidence was not mere evidentiary error”);

 

Noble v. Kelly (2^nd Cir. 2001) 246 F.3d 93 (trial court violated defendant’s rights under the Compulsory Process Clause of the Sixth Amendment in excluding proffered alibi testimony without finding that defense counsel’s failure to comply with state notice-of-alibi rules was wilful);

 

 

Newman v. Hopkins (8^th Cir. 2001) 247 F.3d 848 (8^th Cir. 2001) (state court’s categorical refusal to permit defendant to present voice exemplar evidence to establish that he does not speaka with a Hispanic accent violated his right to present a defense);

 

Lyons v. Johnson (2^nd Cir. 1996) 99 F.3d 499 (denial of defendant’s request to display a witness to the jury in support of  a misidentification defense violated the Sixth Amendment).

 

Thomas v. Hubbard (9^th Cir. 2001) 273 F.3d 1164, overruled on other grounds in Payton v. Woodford (9^th Cir. 2003) 346  F.3d 1204, 1218 fn. 18 (refusal to permit defendant to cross-examine police officer about his difficulty in locating the only “eyewitness” to the crime, whom petitioner maintained was the perpetrator, unconstitutionally interfered with defendant’s right to present exculpatory evidence);

 

LaJoie v. Thompson (9^th Cir.2000) 217  F.3d 663 (excluding evidence of the victim’s past sexual abuse due to petitioner’s failure to comply with notice requirement of state’s rape shield law violated LaJoie’s Sixth and Fourteenth Amendment rights where his interest in presenting the evidence outweighed the state’s interests in enforcing the notice requirement);  

Newman v. Hopkins  (8^th Cir. 1999) 192 F.3d 1132 (erroneous trial court ruling that defendant would waive his privilege against self-incrimination and be subject to cross-examination if he presented evidence of a voice exemplar to the jury violated due process; “because state can compel [defendant] to produce a voice exemplar without violating the Fifth Amendment, due process principles of reciprocity allow him to present voice exemplars to the jury without waiving his constitutional protections.”)

 

Gonzalez v. Lytle (10^th Cir. 1999) 167 F.3d 1318 (trial court’s rulings  permitting the prosecution to introduce the preliminary hearing testimony of an unavailable witness but refusing to admit her sworn recantation deprived petitioner of his  Fourteenth Amendment right to a fundamentally fair trial).

United States v. Sanchez-Lima (9^th Cir.1998) 161 F.3d 545 (refusal to admit sworn videotaped statements of eyewitnesses who were deported and the earlier denial of defendant’s motion to depose those witnesses violated the Sixth Amendment);

 

Franklin v. Henry (9^th Cir. 1997) 122 F.3d 1270 (trial court violated petitioner’s Sixth and Fourteenth Amendment rights by precluding defendant from testifying about prior accusations made by the alleged victim);

 

Justice v. Hoke (2^nd  Cir. 1996) 90 F.3d 43, 49 (exclusion of competent evidence that prosecution’s only witness had a motive to fabricate violated petitioner’s right to present a defense);

 

United States v. Peters (9^th Cir. 1991) 937 F.2d 1422 (Sixth Amendment violated where trial court excluded the testimony of an expert witness because of its erroneous conclusion that defense counsel had violated discovery rules);

 

Rivera v. Director, Department of Corrections (7^th  Cir. 1990) 915 F.2d 280 (mechanical application of hearsay rule to exclude separately-tried codefendant's confession exculpating petitioner, which was used by the state against the codefendant at his trial, violates due process);

 

Crane v. Kentucky (1986) 476 U.S. 683 (trial court's foreclosure of defendant's efforts to introduce evidence concerning the environment in which the police secured his confession, which had been held voluntary at a pretrial hearing, denied defendant a meaningful opportunity to challenge the reliability and credibility of the confession, and therefore abridged his right to present a defense);

 

Miller v. Angliker (2^nd Cir. 1988) 848 F.2d 1312, 1323 ("Given a defendant's Sixth Amendment right to present evidence in his favor, see Taylor v. Illinois, 484 U.S. 400 . . . and his Fifth Amendment right not to be deprived of his liberty without due process of law," evidence that a third party committed the crime would have been admissible if disclosed by the state; although state law here does not appear contrary, "state law could not, in any event, diminish Miller's federal constitutional rights");

 

Rosario v. Kuhlman (2^nd Cir. 1988) 839 F.2d 918 (the right to present a defense encompasses both the right to present direct testimony of live witnesses and,  under some circumstances, the right to place before the jury secondary forms of evidence such as hearsay or prior testimony);

Boykins v. Wainwright (11^th Cir. 1984) 737 F.2d 1539, 1544 (the right to present witnesses in one's own behalf lies at the core of the Fifth and Fourteenth Amendment guarantees of due process; where insanity was the sole issue in dispute, it was reversible error to exclude the testimony of a doctor who had treated defendant).

 

42.            Limitations imposed on confrontation and cross-examination, as well as the total denial of cross-examination, can violate the Sixth Amendment.  See, for example:

 

Fowler v. Sacramento County Sheriff’s Department (9^th Cir. 2005) 421 F.3d 1027 (trial court’s preclusion of cross-examination of victim about her prior accusations of molestation against two other men,  proffered to show she overreacted and misperceived or lied about defendant’s conduct, violated defendant’s Sixth Amendment rights);

United States v. Schonenberg (9^th Cir. 2004)  388 F.3d 1275  (Restrictions imposed on defendant’s cross-examination of co-conspirator who testified for the government pursuant to a plea agreement violated Sixth Amendment Confrontation Clause); 

 

Howard v. Walker (2^nd Cir. 2005) 406 F.3d 114  (trial court’s ruling that cross-examining the expert on cause of death would open the door to the introduction of the complete but otherwise inadmissible out-of-court statement by the codefendant) violated defendant’s confrontation rights);

 

United States v. Adamson (9^th Cir. 2002) 291 F.3d 606 (trial court violated defendant’s Sixth Amendment right of confrontation by precluding impeachment of  a prosecution witness with her silence during the portions of defendant’s interrogation when he denied criminal activity, which was inconsistent with her trial testimony);

 

Lindh v. Murphy (7^th Cir. 1997) 124 F.3d 899 (trial court’s refusal to permit the impeachment of the prosecution’s expert with evidence that the psychiatrist had sexually abused some of his patients, was about to lose his license and faculty positions and might be sent to prison violated defendant’s Sixth Amendment right of confrontation); 

 

Wilkerson v. Cain (5^th Cir. 2000) 233 F.3d 886  (Preclusion of cross-examination of sole witness identifying defendant as the killer on his possible motive to testify favorably to the government violated the Confrontation Clause).

 

Cumbie v. Singletary (11^th Cir. 1993) 991 F.2d 715 (petitioner's Sixth Amendment confrontation rights were violated when child-victim was permitted to testify before a closed circuit television camera outside the courtroom, without sufficient individualized findings that the possibility of harm to the witness made it necessary for her to testify outside the defendant's presence);

 

Olden v. Kentucky (1988) 488 U.S. 277 (trial court's refusal to permit cross-examination of the victim regarding her motive to lie, and its exclusion of evidence proffered by the defendant on the same issue, violated the Sixth Amendment right of confrontation);

 

Wealot v. Armontrout (8^th Cir. 1992) 948 F.2d 497 (petitioner's confrontation rights were violated by state court's refusal to permit cross-examination of rape victim and her husband on defense theory that victim fabricated the charge out of fear of her jealous and abusive husband);

 

Smith v. Fairman (7^th Cir. 1988) 862 F.2d 630, 638 (exclusion of evidence of prior inconsistent statements, proffered to impeach hearsay statements of absent witness admitted as spontaneous declarations, violated Smith's right of confrontation).

 

43.            Substantial state interference with a defense witness' free and unhampered choice to testify violates defendant's Due Process and Sixth Amendment rights to present witnesses.  (In re Hill (1998) 17 Cal.4th 800, 834 (threatening a defense witness with a perjury conviction violates a defendant’s Sixth Amendment right to compulsory process); Earp v. Stokes (9^th Cir. 2005) 423 F.3d 1024; United States v. Vavages (9^th Cir. 1998) 151 F.3d 1185; United States v. Goodwin (5^th  Cir. 1980) 625 F.2d 693, 703; In re Martin (1987) 44 Cal.3d 1.)

 

44.            Defense counsel's interference with a defendant's personal right to testify may also violate due process and the Sixth Amendment.  [Nichols v. Butler (11^th Cir.1992)(en banc) 953 F.2d 1550 (defendant's right to testify was violated when his attorney actively and forcefully prevented him from testifying, despite defendant's desire to do so, by threatening to withdraw from representation if defendant persisted in his wish to take the stand).]

 

45.            Government's failure to seek immunity for a defense witness may deny defendant a fair trial, in violation of the Due Process Clause.  (United States v. Alessio (9^th Cir. 1976) 528 F.2d 1079, 1082.)

 

"[E]xtraordinary circumstances warranting a directive that the government grant immunity to a defense witness in the interest of fundamental fairness may arise where (a) prosecutorial overreaching, through threats, harassment, or other forms of intimidation, has effectively forced the witness to invoke the Fifth Amendment, or the prosecutor has engaged in discriminatory use of immunity grants to gain a tactical advantage; (b) the witness's testimony is also material, exculpatory and not cumulative; and (c) the defendant has no other             way to obtain the evidence."  (Blissett v. LeFevre (2^nd Cir. 1991) 924 F.2d 434, 442.)

 

46.            "Outrageous governmental conduct" -- e.g., "where government agents engineer and direct the criminal enterprise from start to finish" (United States v. Ramirez (9^th Cir. 1983) 710 F.2d 535, 539), or engage in "Rochin-type” physical abuse, may violate due process. See, for example:

 

United States v. White (6^th Cir. 1989) 879 F.2d 1509 (if government extracts from lawyer the secrets of a former client and then uses that information in a criminal trial to the client's detriment, this "might" be the kind of serious misconduct which violates the Fifth Amendment's due process clause);

 

United States v. Kojayan (9^th Cir. 1993) 8 F.3d 1315 (invoking its supervisory power, panel directs district court to determine whether indictment should be dismissed with prejudice as a result of the government's refusal to disclose whether an uncharged codefendant agreed to cooperate with the prosecution, the prosecutor's false argument that he could not call the uncharged codefendant to testify because of the privilege against self-incrimination, and the government's later denials of wrongdoing and down-playing of the error).

 

 

Spectator Conduct/Misconduct

 

47.            Spectator misconduct may violate Sixth Amendment right to a fair trial.  See, for example:

 

Musladin v. LaMarque (9^th Cir. 2005) 427 F.3d 653  (in a case in which self-defense was the critical question, defendant’s rights to a fair trial by an impartial jury free from outside influences were violated by spectators’ wearing buttons depicting the “victim”); 

 

United States v. Rutherford (9^th Cir. 2004) 371 F.3d 634  (conduct of IRS and DOJ agents, who sat directly behind prosecution, some of whom were key prosecution witnesses, and who conversed with the prosecutor throughout the trial, may have intimidated jury, whether ior not agents intended that effect). 

 

Woods v. Dugger (11^th Cir. 1991) 923 F.2d 1454 (large number of uniformed spectators in courtroom, combined with pretrial publicity, rose to the level of inherent prejudice, thus depriving petitioner of a fair trial);

 

Norris v. Risley (9^th  Cir. 1990) 918 F.2d 828 (presence of 3 women inside and outside the courtroom wearing "WAR" (Women Against Rape) buttons apparent to at least 3 jurors was so inherently prejudicial that it created an unacceptable threat to rape defendant's right to a fair trial because:  (1) buttons conveyed that spectators believed defendant's guilt before it was proven, thereby eroding presumption of innocence; (2) it interfered with the right to cross-examination, since spectators' presence with buttons implied a statement about defendant's guilt not subject to cross-examination; and (3) buttons created a risk that jury's determination of complaining witness' credibility was improperly influenced by courtroom show of support).

 

 

Bailiff Misconduct

 

48.       Bailiff misconduct may violate a defendant's right under the Sixth and Fourteenth Amendments.  [Dickson v. Sullivan (9^th Cir. 1988) 849 F.2d 403 (bailiff's remark to two jurors that "defendant had done it before" deprived defendant of his right of confrontation, cross-examination and counsel with respect to that extra-record information).]

 

 

Witness Misconduct

 

49.       The misconduct of a witness may violate defendant’s Sixth and Fourteenth Amendment rights.  Caliendo v. Warden (9^th Cir. 2004)  365 F.3d 691 (15-minute conversation between  police officer who testified about defendant’s confession and several jurors during a trial recess about matters unrelated to the case violated defendant’s Sixth Amendment right to a fair trial and to confront and cross-examine witnesses).

 

 

Prosecutorial Misconduct in Argument

 

50.             Prosecutorial misconduct in argument may violate the federal Constitution when it "so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process."  (Donnelly v. DeChristoforo (1974) 416 U.S. 637; People v. Hill (1998) 17 Cal.4th  800, 818).  See, for example:

 

United States v. Combs, 379 U.S. 564, 574 (9^th Cir. 2004) (Improper cross-examination, calling for defendant to impugn the integrity of DEA agent and impermissible prosecutorial vouching for the credibility of the DEA agent compromised defendant’s due process rights and the integrity of the trial).

 

Bains v. Cambra (9^th Cir. 2000) 204 F.3d 964 (a prosecutor’s invitation to consider prejudices and stereotypes concerning the Sikhs violated petitioner’s federal constitutional rights; a defendant’s due process and equal protection rights are implicated where the prosecutor’s arguments relates to race, ethnicity or religious discrimination); 

 

Sandoval v. Calderon (9^th Cir. 2000) 231 F.3d 1140 (prosecutor’s closing argument invoking divine authority in support of the death penalty denied petitioner a fair trial);

Maurer v. Minnesota Department of Corrections (8^th Cir. 1994) 32 F.3d 1286, 1290-1291 (prosecutor’s vouching in rape case violated due process);

 

United States v. Edwards (9^th  Cir. 1998) 154 F.3d 915 (prosecutor’s continued representation of government following his discovery of a key piece of evidence, the circumstances of which were in dispute, was a form of vouching that undermined the fundamental fairness of the trial);

Presnell v. Zant (11^th Cir. 1992) 959 F.2d 1524 (prosecutor's quotation from nineteenth century Georgia Supreme Court case suggesting that jury must exclude any consideration of mercy from its sentencing decision rendered petitioner's penalty trial fundamentally unfair, in violation of due process);

 

United States v. Solivan (6^th Cir. 1991) 937 F.2d 1146 (prosecutor's appeal to community conscience in context of war on drugs and suggestion that local drug problem would continue if defendant was not convicted deprived defendant of his right to a fair trial);

 

Sizemore v. Fletcher (6^th Cir. 1990) 921 F.2d 667 (prosecutor's statements during closing argument appealing to wealth and class biases, questioning defendant's motives for consulting counsel, and inviting jury to view with suspicion defendant's ability to hire several attorneys and to produce expensive exhibits violated due process);

 

Floyd v. Meachum (2^nd Cir. 1990) 907 F.2d 347 (cumulative effect of repeated and escalating misconduct in closing argument, including improper references to Fifth Amendment, misstatement of burden of proof and personal vouching for the credibility of state's witness, rendered trial fundamentally unfair);

 

Bruno v. Rushen (9^th Cir. 1983) 721 F.2d 1193 (defendant was denied due process when prosecutor insinuated during closing argument that defendant's hiring of counsel was probative of guilt; prejudice was not cured by trial judge's general admonition to jury to consider evidence in reaching verdict).

 

51.            Prosecutorial misconduct may also violate other specific federal constitutional rights.  [Darden v. Wainwright (1986) 477 U.S. 168, 181-182 (in rejecting prosecutorial misconduct claim, Court notes that prosecutor "did not manipulate or misstate the evidence, nor did the [misconduct] implicate other specific rights, such as the right to counsel or the right to remain silent").]  See, for example:

 

Bains v. Cambra (9^th Cir. 2000) 204 F.3d 964, 974 (prosecutorial argument appealing to racial and ethnic stereotypes violate a defendant’s right to due process and equal protection of the law, as do religion-based arguments);   

 

United States v. Santiago (9^th Cir. 1995) 46 F.3d 885, 890-891 (prosecutor’s racially charged argument may violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and the Sixth Amendment right to a fair trial);

Franklin v. Duncan (9^th Cir. 1995) 70 F.3d 75, 76 (comment on defendant’s post-arrest silence and instruction that jury could construe that silence as an adoptive admission violated petitioner’s Fifth Amendment privilege against self-incrimination);

Mahorney v. Wallman (10^th Cir. 1990) 917 F.2d 469 (prosecutor's comments that presumption of innocence was designed to protect only the innocent and that it had been removed in this case violated the Fifth Amendment);

 

United States v. Schuler (9^th Cir. 1987) 813 F.2d 978 (prosecutor's comments on nontestifying defendant's demeanor during guilt trial improperly put defendant's character in issue, and violated his Fifth Amendment right not to testify and not to be convicted except upon the basis of evidence introduced at trial);

 

Rogers v. Lynaugh (5^th Cir. 1988) 848 F.2d 606 (prosecutor's argument at sentencing phase of noncapital trial that "each of [defendant's] felony convictions [the robbery in issue and three priors] was worth 10 years" violated the Fifth Amendment guarantee against double jeopardy because it would reasonably be construed as an "exhortation to assess multiple punishments for the same offense," and not as an argument urging a 40 year sentence for the proper reasons of deterrence and rehabilitation).

 

 

Misconduct by Counsel for Codefendant

 

52.       Actions of counsel for a codefendant may violate a defendant’s constitutional rights.  See, for example:

 

United States v. Al-Muqsit (8^th Cir. 1999) 191 F.3d 928 (comment by codefendant’s counsel regarding defendant’s failure to testify violated defendant’s right to a fair trial, if not the Fifth Amendment privilege against self incrimination);

 

United States v. Mayfield (9^th Cir. 1999) 189 F.3d 895 (Defendant was denied his Sixth Amendment right to confront the witnesses against him by the codefendant elicitation of  a police officer’s inculpatory testimony about a reliable police informant and by the introduction of the codefendant’s out-of-court statement  against defendant);

 

People v. Estrada (1998) 63 Cal.App.4th 1090 (outrageous and continuous misconduct by codefendant’s counsel violated defendant’s right to due process).   

 

 

Defense Closing Argument

 

53.            Limitations on the substance of defendant’s closing argument may violate the  right to effective assistance of counsel, the right to present a defense and the right to have the prosecution prove its case beyond a reasonable doubt.   See, e.g., Conde v. Henry (9^th Cir.1999) 198 F.3d 734, 739 (trial court’s refusal to permit defense counsel to argue the defense theory of the case--that state failed to prove robbery or intent to rob--violated Conde’s rights to the effective assistance of counsel, to present a defense and improperly lightened the prosecution’s burden of proof).

 

 

Jury Instructions

 

54.       Jury instructions can violate the federal Constitution in a variety of ways:

 

            (a)             Jury instructions relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense, including the total failure to instruct on an element of the offense, or an instruction directing the jury to find an element against the defendant, violate the Sixth Amendment right to a jury trial, as well as the Due Process Clause.  (Sullivan v. Louisiana (1993) 508 U.S.275; United States v. Gaudin (1995) 515 U.S. 506, 510; Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348;  People v.Flood (1998) 18 Cal. 4th 470.)              See, for example:

 

Laird v Horn, 414 F.3d 419 (3^rd Cir. 2005) (jury instruction on accomplice liability that erroneously permitted conviction of first degree murder without finding the specific intent to kill improperly lightened the prosecution’s burden of proof violated Due Process Clause).

 

Martinez v Garcia (9^th Cir. 2004)  379 F.3d 1034  (jury instruction on theory of transferred intent not authorized by state law relieved state of its burden of proof and violated due process).

 

Powell v. Galaza (9^th Cir. 2003) 328 F.3d 558 (trial court’s mid-trial instruction that defendant’s own testimony established criminal intent violated  Sixth Amendment right to a jury determination of the elements of the offense).

 

            (b)            The prohibition against directed verdicts includes situations in which the judge's instructions fall short of directing a verdict but which have the same effect of so doing by eliminating other relevant factual considerations. (People v. Figueroa (1986)  41 Cal.3d 714, 724.)  In accord, United States v. Voss (8^th Cir. 1986) 787 F.2d 393, 398 ("When the jury is not given an opportunity to decide a relevant factual question," the defendant is deprived of his right to a jury trial); United States v. McClain (5^th Cir. 1977) 545 F.2d 988, 1003; see also United States v. Rockwell (3^rd Cir. 1986) 781 F.2d 985, 991 (instructions which "improperly invaded the province of the jury to determine the facts and assess the credibility of witnesses . . . [were] sufficiently misleading to deprive Rockwell of a fair trial")

 

            (c)            Instructions containing presumptions or which otherwise lighten the prosecution’s burden of proof violate the federal Due Process Clause.  (Yates v. Evatt (1991) 500 U.S. 391, 114 L.Ed.2d 432; Carella v. California (1989) 491 U.S. 263; Franklin v. Francis (1985) 471 U.S. 307; People v. Roder (1983) 33 Cal.3d 491, 496; People v. Dyer (1988) 45 Cal.3d 26, 62 (Beeman error); Batiste v. Blackburn (5^th Cir. 1986) 786 F.2d 704, 705.)  See, for example:

 

Stark v. Hickman (9^th Cir. 2006)  455 F.3d 1070 (instruction at guilt phase directing the jury to “presume conclusively” that defendant was sane lowered the prosecution’s burden of proof on the mental state required for murder, and violated due process.

 

Gibson v. Ortiz, 387 F.3d 812  (9^th Cir. 2004) (instruction that permitted jury to convict  defendant of the charged sex offense if they found by a preponderance of evidence that he committed prior sex offenses violated due process);

 

Martinez v. Borg (9^th Cir. 1991) 937 F.2d 422, 423 (Beeman error is federal constitutional error because the jury did not have the opportunity to find each element of the crime beyond a reasonable doubt);

 

Smith v. Horn (3^rd Cir. 1997) 120 F.3d 400 (instruction on first degree murder that improperly removed state’s burden of proving specific intent to kill violated due process);

 

Hanna v. Riveland (9^th Cir. 1996) 87 F.3d 1034, 1037 (permissive inference instruction that permitted jury to infer recklessness from mere fact of speeding violated due process);

Ulster County Court v. Allen (1979) 442 U.S. 140 (instruction embodying a permissive inference may be unconstitutional "if, under the facts of the case, there is no rational way the trier of fact could make the connection permitted by the inference");

 

Dickey v. Lewis (9^th Cir. 1988) 859 F.2d 1365 (reasonable juror could have construed instruction ("intent to kill may be presumed from use of a deadly weapon") in an unconstitutional burden-shifting manner);

 

Miller v. Norvell (11^th Cir. 1985) 775 F.2d 1572 (instruction in language of statute (that proof of a specified fact "shall constitute prima facie evidence" of intent) created unconstitutional mandatory rebuttable presumption);

 

            (d)            Instructions shifting the burden of proof to defendant to negate an element of the offense violate due process. (Patterson v. New York (1977) 432 U.S. 197.) 

 

            (e)            Erroneous instructions suggesting a higher degree of doubt than is required under the reasonable doubt standard violate due process.  (Cage v. Louisiana (1993) 498 U.S. 39; Perez v. Irwin (2^nd Cir. 1992) 963 F.2d 499.)  See, for example:

 

Humphrey v. Cain (5^th Cir.1998)(en banc) 138 F.3d 552 (instruction defining reasonable doubt in terms of “a serious doubt for which you could give a good reason,” in conjunction with references to “grave uncertainty,” moral certainty, and “actual and substantial doubt” lowered state’s burden below the constitutional minimum);

 

Lanigan v. Maloney (1^st Cir. 1988) 853 F.2d 40 (instruction equating proof beyond a reasonable doubt with "proof to a degree of moral certainty,” coupled with confusing contrast to civil standard of preponderance, created a significant risk that jury would find guilt based on a level of proof below that required by the Due Process Clause).

 

            (f)            Erroneous and contradictory instructions defining the elements of a crime may violate the 6^th Amendment and/or  the Due Process Clause.  See, for example:

 

Bartlett v. Alameida (9^th Cir. 2004)  366 F.3d 1020 (Trial court’s instruction to the jury that it need not find actual knowledge of the duty to register as a convicted sex offender as long as notice was given violated due process).

 

Ho v. Carey (9^th Cir. 2003) 332 F.3d 587 (erroneous jury instruction defining second degree implied malice murder as a general intent crime deprived petitioner of his right to have the jury decide every element of the offense); 

 

Conde v. Henry (9^th Cir.1999) 198 F.3d 734, 740 (trial court’s modification of  CALJIC pattern instruction on robbery, defining specific intent required for robbery as the “specific intent to rob [the victim] of money over which she had control” eviscerated the “immediate presence” requirement and violated due process);  Suniga v. Bunnell (9^th Cir. 1993) 998 F.2d 664 (erroneous instruction on nonexistent theory of felony-murder violated due process);

 People v. Lee (1987) 43 Cal.3d 666, 674; Baldwin v. Blackburn (5^th Cir. 1981) 653 F.2d 942, 949 (misleading and confusing instructions under state law may violate due process where they are "likely to cause an imprecise, arbitrary or insupportable finding of guilt").]

 

            (g)            Instructions on a theory of liability of which defendant was not put on notice by the charging papers or other circumstances violate the Sixth and Fourteenth Amendment rights to adequate notice and due process (Sheppard v. Rees (9^th Cir. 1990) 909 F.2d 1234; United States v. Sloan (10^th Cir. 1987) 811 F.2d 1359), particularly when the lack of notice deprives defendant of an opportunity to prepare a defense. (Calderon v. Prunty (9^th Cir. 1995) 59 F.3d 1005, 1009-1010.)

 

            (h)            In a capital case, the failure to instruct on a noncapital lesser included offense where supported by the evidence may violate the Due Process Clause and the Eighth Amendment.  [Hopkins v. Reeves (1998) 524 U.S. 88; Beck v. Alabama (1980) 447 U.S. 625; Schad v. Arizona (1991) 501 U.S. 624 (under the facts of this case, instruction on second degree murder provided a sufficient "third option" to withstand a Beck challenge to trial court's failure to instruct on other lesser included offenses).]

 

            (i)            The refusal or failure to instruct on the defendant’s theory of the case, including instructions on lesser offenses, violates the defendant’s right under the Sixth and Fourteenth Amendments to adequate instructions on the theory of the defense, and the Sixth Amendment right to a jury trial.  [Conde v. Henry (9^th Cir. 1999) 198 F.3d 734, 739-740; Barker v. Yukins (6^th Cir. 1999) 199 F.3d 867;  United States v. Unruh (9^th Cir. 1988) 855 F.2d 1363, 1372; in accord, United States v. Escobar de Bright (9^th Cir. 1984) 742 F.2d 1196, 1201-1202.)  See for example:

 

Clark v. Brown (9^th Cir 2006) 442 F.3d 708 (trial court’s failure to give standard felony-murder special circumstance instruction based on People v. Green (1980) 27 Cal.3d 1, violated Clark’s due process right to present a complete defense).

 

Jackson v. Edwards (2^nd Cir. 2005)  404 F.3d 612  (Trial court’s  refusal to instruct on  justification defense to manslaughter violated Due Process Clause of the Fourteenth Amendment).

 

McNeil v. Middleton (9^th Cir. 2003) 344 F.3d 988 (erroneous self-defense instructions under state law violated due process by preventing petitioner from presenting her defense of unreasonable self-defense as perceived by one suffering from the effects of Battered Woman’s Syndrome);

 

Bradley v. Duncan (9^th Cir. 2002) 315 F.3d 1091 (court’s failure to instruct on entrapment defense supported by the evidence violated due process);

 

Taylor v. Withrow (6^th Cir. 2002) 288 F.3d 846 (failure to instruct on self defense violated due process);

 

United States v. Sayetsitty (9^th Cir. 1997) 107 F.3d 1405, 1414 (defendant has a due process right to have the jury consider defenses recognized by state law which negate elements of the offense).

 

            (j)            Failure to instruct jury orally on the elements of the offense violates the due process right to a record sufficient for appeal because it makes it impossible for the reviewing court to determine whether each juror was aware of the elements of the offense.  (People of the Territory of Guam v. Marquez (9^th Cir. 1992) 963 F.2d 1311.)

 

            (k)            Jury instructions defective for other reasons may violate due process; however, "[i]t is not sufficient that the instruction is erroneous; rather, the petitioner must establish that there was a reasonable likelihood that the jury applied the instruction in a way that violated a constitutional right.”  (Carriger v. Lewis (9^th Cir. 1992) (en banc) 971 F.2d 329, 334, citing Estelle v. McGuire (1991) 502 U.S. 62.)  See, e.g.:

 

United States v. Gaines (2^nd Cir. 2006) 457 F.3d 238 (instruction that a testifying defendant’s interest in the outcome of the case creates a motive to testify falsely unfairly undermined the presumption of innocence, in violation of defendant’s right to a fair trial.

 

United States v. Southwell (9^th Cir. 2005) 432  F.3d 1050 (court’s refusal to instruct jury that defendant had the right to a unanimous verdict on his affirmative defense of insanity in addition to a unanimous verdict on guilt of the offense violated his constitutional right to unanimity); 

United States v Garcia-Rivera (9^th Cir.2003)  353 F.3d 788  (Instruction permitting  conviction if jury found defendant possessed contraband on one of three alternative dates, but did not require unanimity as to which date, violated defendant’s right to a unanimous verdict guaranteed by Article III, section 2 and the Sixth Amendment).

 

            (l) The failure to give limiting instruction re the limited permissible use of evidence of gang membership deprived defendant of a fair trial.   United States v. Jobson (6^th Cir. 1996) 102 F.3d 214; see also Boyde v. Brown (9^th Cir. 2005) 404 F.3d 1159, 1173 (“Because the jury could draw a permissible inference from evidence of Boyde’s [prior] robbery, admission of that evidence did not violate due process, so long as the jury was instructed it could not draw any improper inferences  from  it.”).

 

            (m)  Coercive supplemental instructions to a divided jury violate the Due Process Clause and the defendant’s right to a fair trial.  See, e.g.:

 

 Weaver v. Thompson (9^th Cir.1999) 197 F.3d 359  (where, after four hours of deliberation following a full day of trial, the jury asked whether it must reach a verdict in all counts and the bailiff responded “yes,” and where the jury returned a guilty verdict on all counts five minutes after the bailiff responded, the bailiff’s comment amounted to a coercive Allen charge and violated Weaver’s due process rights);

Smalls  v. Batista (2^nd Cir. 1999) 191 F.3d 272 (supplemental charge to jury divided 11 to 1 was unconstitutionally coercive because it “both (1) obligated the jurors to convince one another that one view was superior to another, and (2) failed to remind those jurors not to relinquish their own conscientiously held beliefs”);

 

            (n)            Instruction that jury could imply malice if it concluded that petitioner committed a murder during a robbery violated the Double Jeopardy Clause because petitioner was previously convicted in juvenile court for robbery arising from the same incident.  Ficklin v. Hatcher (9^th Cir. 1999) 177 F.3d 1147).     

 

 

Juror Misconduct

 

55.       Juror misconduct implicates the  constitutional rights guaranteed by the Sixth and Fourteenth Amendments.  (Jeffries v. Wood (9^th Cir. 1997)(en banc) 114 F.3d 1484, 1490-1492; Marino v. Vasquez (9^th Cir. 1987) 812 F.2d 499.)

 

            For example:

 

"When a jury considers facts that have not been introduced in evidence, a             defendant has effectively lost the rights of confrontation, cross-examination, and the assistance of counsel with regard to jury consideration of the extraneous evidence.  In one sense, the violation may be more serious than where these rights are denied at some other stage of the proceedings because the defendant may have no idea what new evidence has been considered.  It is impossible to offer evidence to rebut it, to offer a curative instruction, to discuss its significance in argument to the jury, or to take other tactical steps that might ameliorate its impact."  (Gibson v. Clannon (9^th Cir. 1980) 633 F.2d 851, 853.)

 

            See also Sassounian v. Roe (9^th Cir. 2000) 230 F.3d 1097; Eslaminia v. White (9^th Cir. 1998) 136 F.3d 1234.

 

            Similarly, unauthorized reference to dictionary definitions of legal terms constitutes constitutional error which the State must prove harmless beyond a reasonable doubt.  (United States v. Kupau (9^th Cir. 1986) 781 F.2d 740, 744.)

 

            Even if "only one juror was unduly biased or improperly influenced [by exposure to facts not introduced in evidence, defendant] was deprived of his Sixth Amendment right to an impartial panel" of twelve unprejudiced jurors.  (Dickson v. Sullivan, supra, 849 F.2d at 406; People v. Nesler (1997) 16 Cal.4th 561.)

 

            A juror's concealment of bias or prejudice, like other forms of juror misconduct, may deny a defendant his Sixth Amendment right to a fair trial by an impartial jury.  (Dyer v. Calderon  (9th Cir. 1998) (en banc)151  F.3d 970 ;  United States v. Eubanks (9^th Cir. 1979)  591 F.2d 513, 516-517;  Burton v. Johnson (10^th Cir. 1991) 948 F.2d 1150.)

 

            See, for example, Green v. White (9^th Cir. 2000) 232 F.3d 671 (writ granted where juror’s intentional concealment of a prior felony conviction which disqualified him from jury service, coupled with his pattern of lies, inappropriate behavior and attempts to cover up his behavior, rose to the level of presumed bias).

 

            Similarly, a juror’s concealment of a disability that prevents her from functioning as a competent juror violates a defendant’s Sixth and Fourteenth Amendment rights  to 

a fair trial and unanimous verdict by 12 competent jurors.  (People v. Rubio (2006) 141 Cal.App.4th 1214 [juror failed to disclose her inability to hear during parts of the testimony and deliberations].)

 

 

Errors During Deliberations

 

56.            Irregularities during jury deliberations may violate the Sixth Amendment right to a fair trial, or the Due Process Clause.  See, for example:

French v. Jones (6^th Cir. 2003)  332 F.3d 430  (Delivery of supplemental instruction to deadlocked jury in the absence of counsel violated defendant’s Sixth Amendment right to counsel). 

 

Fisher v. Roe (9^th Cir. 2001) 263 F.3d 906, overruled on other grounds in Payton v. Woodford (9^th Cir. 2003) 346 F.3d 1204, 1218 fn. 18  (read-back of testimony conducted in the absence of defendant and his counsel and without notifying them of the jury’s request violated due process);

 

United States v. Symington (9^th Cir. 1999) 195 F.3d 1080 (defendant’s Sixth Amendment rights to an impartial jury and a unanimous verdict were violated when the court dismissed a juror on the eighth day of deliberations for being unwilling or unable to deliberate, despite evidence raising a reasonable possibility that the impetus for the juror’s dismissal stemmed from her view of the case);

 

Riley v. Deeds (9^th Cir. 1995) 56 F.3d 1117, 1121 (absence of judge during readback of testimony by judge’s law clerk, coupled with judge’s unavailability and failure to rule upon the jury’s request for readback or to exercise any discretion over what would be reread, violated the “constitutional guarantee of trial by an impartial jury”);

 

Eslaminia v. White (9^th Cir. 1998) 136 F.3d 1234 (mistaken receipt of tapes not introduced in evidence violated petitioner’s Sixth Amendment rights of confrontation, cross-examination and the assistance of counsel);

 

United States v. Noufshar (9^th Cir. 1996) 78 F.3d 1442 (allowing jury to listen to audiotapes never played in open court, without instructions or supervision by the judge, violated defendant’s right to be present under Rule 43 and may also have violated his Sixth Amendment confrontation rights);

 

People v. Santamaria (1991) 229 Cal.App. 3d 269, 278 (mid-deliberation adjournment of further deliberations for 11 days, without good cause and despite the availability of alternatives, deprived defendant of a fair trial).

 

 

Penalty Phase Errors

 

57.       All penalty phase errors potentially implicate the Eighth and Fourteenth Amendments by creating a risk that the jury's death verdict is not a  reliable determination that death is the appropriate punishment.  [See, e.g., Caldwell v. Mississippi (1985) 472 U.S. 320 (prosecutor's penalty argument that jury's penalty determination not final but subject to appellate review contrary to Eighth Amendment's requirement of reliability; Johnson v. Mississippi (1988) 486 U.S. 578, 587 (a death sentence based upon "materially inaccurate" information may violate the Eighth and Fourteenth Amendments).]

 

58. "Traditional" constitutional rights -- such as the privilege against self-incrimination, the right to counsel, double jeopardy, due process and equal protection -- also apply to the penalty phase.  (Satterwhite v. Texas (1988) 486 U.S. 249, 100 L.Ed.2d 284; Estelle v. Smith (1981) 451 U.S. 430; Arizona v. Rumsey (1984) 467 U.S. 203; Ake v. Oklahoma (1985) 470 U.S. 68; Gardner v. Florida (1979) 430 U.S. 349; Mak v. Blodgett (9^th Cir. 1992) 970 F.2d 614, 622-624; Lesko v. Lehman (3^rd  Cir. 1991) 925 F.2d 1527; Presnell v. Zant (11^th Cir. 1992) 959 F.2d 1524; Landry v. Lynaugh (5^th  Cir. 1988) 844 F.2d 1117, 1121.)

 

59.       The arbitrary deprivation of a purely state law right at penalty phase may violate the Due Process Clause of the Fourteenth Amendment.  See, for example:

 

Fetterly v. Paskett (9^th Cir. 1993) 997 F.2d 1295 (state trial court’s misapplication of its capital sentencing statute implicates the Eighth Amendment’s prohibition against cruel and unusual punishment and the liberty interest protected by the Fourteenth Amendment);

 

Walker v. Deeds (9^th Cir. 1995) 50 F.3d 670, 673 (sentencing court’s failure to comply with state statute requiring a finding that habitual offender status is “just and proper” violated due process).