PRACTICE KIT #3 Common Objections and Hearsay

 PRACTICE KIT #3 

Common Objections and Hearsay

Revised January 2015

PRACTICE KIT #3 Common Objections & Hearsay January 2015

TABLE OF CONTENTS

1. Common Objections List 2. Common Objections Chart 3. Hearsay Chart 4. Federal Rules of Evidence 5. Important D.C. Case Law on Common Objections and Hearsay a. Drew v. U.S., 331 F.2d 85 (D.C. 1964) (character evidence) b. Dyas v. U.S., 376 A.2d 827 (D.C. 1977) (expert opinion) c. Nicholson v. U.S., 368 A.2d 561 (D.C. 1977) (excited utterance) d. Giles v. U.S., 548 A.2d 48 (D.C. 1988) (foundation/authentication) e. In re Melton, 597 A.2d 892 (D.C. 1991) (opinion) f. Galindo v. U.S., 630 A.2d 202 (D.C. 1993) (medical diagnosis) g. Clyburn v. D.C., 741 A.2d 395 (D.C. 1999) (business records) h. In re Ca.S., 828 A.2d 184 (D.C. 2003) (opinion; medical diagnosis) i. In re Kya. B., 857 A.2d 465 (D.C. 2004) (medical diagnosis) j. Henderson v. George Wash. Univ., 449 F.3d 127 (D.C. 2006) (prejudice) k. Benn v. U.S., 978 A.2d 1257 (D.C. 2009) (expert opinion) l. [John] Jones v. U.S., 990 A.2d 970 (D.C. 2010) (expert opinion) m. Wilson v. U.S., 995 A.2d 174 (D.C. 2010) (statement of a party opponent) n. In re A.B., 999 A.2d 36 (D.C. 2010) (expert opinion) o. In re K.J., 11 A.3d 273 (D.C. 2011) (statement of a party opponent) p. Melendez v. U.S., 26 A.3d 234 (D.C. 2011) (excited utterance)

Table of Contents, page 2

q. [Damion] Jones v. U.S., 17 A.3d 628 (D.C. 2011) (state of mind) r. Brown v. U.S., 27 A.3d 127 (D.C. 2011) (excited utterance) s. [Ricardo] Jones v. U.S., 27 A.3d 1130 (D.C. 2011) (expert opinion) t. In re M.L., 28 A.3d 520 (D.C. 2011) (expert opinion; physician-patient privilege) u. Nelson v. U.S., 55 A.3d 389 (D.C. 2012) (opinion of a lay witness) v. Castillo v. U.S., 75 A.3d 157 (D.C. 2013) (excited utterance) w. King v. U.S., 74 A.3d 678 (D.C. 2013 (expert opinion) x. Bridges v. Clark, 59 A.3d 978 (D.C. 2013) (admission of party opponent) y. In re L.C., No. 10-FS-709 (D.C. 2014) (expert testimony; relevance)

D.C. Code, Superior Court Rules, and cases have been reprinted from WestlawNext with the generous permission of Thomson Reuters. Material should not be further distributed. If you wish to check the currency of any material using KeyCite on WestlawNext, then you may do so by visiting https://next.westlaw.com. COMMON OBJECTIONS

To questions • Calls for irrelevant answer • Calls for a conclusion • Calls for an opinion [by a lay witness] • Calls for a narrative • Calls for hearsay • Calls for privileged communication • Witness incompetent • Violates best evidence rule • Leading • Asked and answered • Beyond scope [of direct or cross] • Assumes facts not in evidence • Confusing/misleading/ambiguous/vague/unintelligible • Speculative • Compound question • Argumentative • Misstates evidence • Cumulative • Improper impeachment

To answers • Irrelevant • Privileged • Conclusion • Hearsay • Narrative • Improper lay opinion • Improper character evidence • Lack of personal knowledge • Speculation / conjecture • Violates parol evidence rule • Unresponsive/volunteered

To exhibits • Irrelevant • No foundation • No authentication • Contains hearsay / double hearsay • Prejudice outweighs probative value • Contains inadmissible matter • Violates best evidence rule

Rev. January 2015 COMMON OBJECTIONS CHART (excluding Hearsay, covered in next section)

This chart was prepared by Children’s Law Center as a practice aid for attorneys representing children, parents, family members and others in the neglect system. This chart does not constitute or substitute for legal advice. Attorneys should always do their own independent research and analysis before deciding how or whether to use the information in this chart. A complete list of all evidentiary objections and related supports in D.C. and Federal law is beyond the scope of this chart, which includes common objections and a sampling of related supports in D.C. and Federal law. This chart is intended as a practice aid and is not necessarily comprehensive. Also, please note that the Federal Rules of Evidence (FRE) have not been formally adopted or incorporated by the D.C. Superior Court and the D.C. Court of Appeals, although D.C.’s controlling case law and statutes on evidence largely model the Federal Rules. In addition, many of the cases listed below are criminal cases, and attorneys should conduct their own analysis as to whether they can be applied to the civil context. Cases which apply the rule at issue to proceedings in Family Court have been provided in some cases, if available. Additional resources on the law of evidence include The Law of Evidence in the District of Columbia (5th Ed.) by Hon. Steffen W. Graae, Hon. Henry F. Greene, and Brian T. Fitzpatrick (which includes numerous relevant case citations) and Trial Techniques by Thomas A. Mauet.

Common Objection Statute/Case/Rule Notes:

Improper Character Generally: Character evidence generally. Evidence of a person’s character or a trait of character is not Evidence Borum v. U.S., 56 F.2d admissible for the purpose of proving action in conformity therewith on a particular occasion, 301 (D.C. 1932) except: (1) character of accused; (2) character of victim; and (3) character of witness. [See also Impeachment, below] Preston v. U.S., 80 F.2d 702 (D.C. Cir. 1935) Note: The scope of admissible material may be broader in Family Court proceedings. [See, e.g., In re S.K., 564 A.2d 1382 (D.C. 1989)] Morris v. D.C., 124 F.2d 284 (D.C. Cir. 1941)

Other crimes, wrongs, Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to acts: prove the character of a person in order to show action in conformity therewith. [U.S. v. Carter; Johnson v. U.S., 610 see also FRE 404(b)] Evidence of other crimes is admissible where relevant to: (1) motive, (2) A.2d 729 (D.C. 1992) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to Drew v. U.S., 331 F.2d 85 establish the other, and (5) the identity of the person charged with the commission of the crime (D.C. Cir. 1964) on trial. [Drew v. U.S.]

U.S. v. Carter, 482 F.2d Sex crimes: Evidence of a defendant’s past sexual misconduct with persons other than 738 (D.C. Cir. 1973) persons involved in the sexual misconduct for which he is being tried is admissible to show an unusual sexual preference for similar acts. [Johnson v. U.S.] See also FRE 404(a), (b)

Common Objection Statute/Case/Rule Notes:

Cumulative Evidence Yeager v. Greene, 502 The court has discretion to control repetitive evidence introduced during trial. A.2d 980 (D.C. 1985)

Henderson v. George Wash. Univ., 449 F.3d 127 (D.C. Cir. 2006)

See also FRE 403, 611 Assumes Facts Not in Simmons v. U.S., 940 It is improper for an attorney to make an argument to the jury based on facts not in evidence or Evidence A.2d 1014 (D.C. 2008) not reasonably inferable from the evidence. Lack of Foundation Super. Ct. Civ. R. 43-I, 44 All exhibits and testimony must have necessary foundations established before they can be (including admitted in evidence. [See also Relevance below] Authentication) Campbell v. Willis, 290 F. 271 (D.C. 1923) Lay and expert opinion testimony must have a proper factual basis on which the opinion is based. [See also Improper Opinions below] Anderson v. D.C., 48 A.2d 710 (D.C. 1946) Writings and conversations must be authenticated or identified to be admissible at trial. [Campbell v. Willis] Giles v. D.C., 548 A.2d 48 (D.C. 1988) D.C. has a list of self-authenticating documents. [Giles v. D.C.]

Taylor v. U.S., 759 A.2d Courts must make a thorough foundational inquiry before admitting demonstrative evidence to 604 (D.C. 2000) ensure its reliability. [Taylor v. U.S.]

See also FRE 901-902, Note: The “Best Evidence Rule” has largely been abrogated by changes in the law, including 1000-1004 the court rules, and can only be raised if there is a dispute about authenticity or accuracy. A duplicate is admissible to the same extent as the original unless: (1) there is a question of authenticity of the original or (2) it would be unfair to admit the duplicate. The original is not required if: (1) the originals are lost or destroyed, (2) the original is not obtainable, or (3) the writing, recording, or photograph is not closely related to a controlling issue. Hearsay See Hearsay, covered in separate chart Improper Impeachment D.C. Code §§14-102, The credibility of a witness may be attacked by any party, including the party calling the -305 witness. [D.C. Code §14-102(a)]

See also FRE 607, 608, Basis for impeachment 609, 613 1. bias, interest, and motive [D.C. Code § 14-102(b)] 2. prior convictions [D.C. Code § 14-305, Ross v. U.S., 520 A.2d 1064 (D.C. 1987); see also FRE 609] 3. prior bad acts [Lee v. U.S., 454 A.2d 770 (D.C. 1982); see also FRE 608(b)] 4. prior inconsistent statements [D.C. Code § 14-102(b)] 5. contradictory facts [Cooper v. Safeway Stores, 629 A.2d 31 (D.C. 1993)] 6. bad reputation for truth and veracity [Bassil v. U.S., 517 A.2d 714 (D.C. 1986); see also FRE 608(a)] Common Objections Chart, page 2

Common Objection Statute/Case/Rule Notes:

Improper Opinion Dyas v. U.S., 376 A.2d Lay witnesses can give opinions/inferences only where the opinion is based on the witness’ (including experts) 827 (D.C. 1977) perception of an event and is helpful to the jury in understanding the facts. Trial judges are given broad discretion in admitting testimony of lay witnesses. [U.S. v. Williams] In re Melton, 597 A.2d 892 (D.C. 1991) Expert opinions. Criteria for admitting expert testimony: 1. subject matter must be so distinctively related to some science, profession, business, In re L.L., 653 A.2d 873 or occupation as to be beyond the ken of the average [lay person] (D.C. 1995) 2. the witness must have sufficient skill, knowledge, or experience in that the field or

calling as to make it appear that his opinion or inference will probably aid the trier of In re Ca.S., 828 A.2d 184 fact in his search for truth (D.C. 2003) 3. expert testimony is inadmissible if the state of the pertinent art or scientific knowledge Benn v. U.S., 978 A.2d does not permit a reasonable opinion to be asserted even by an expert 1257 (D.C. 2009) [Dyas v. U.S. See also Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)

Jones v. U.S., 990 A.2d (supplants Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923) which asked the court to determine 970 (D.C. 2010) whether evidence was generally accepted by relevant scientific community)] Note: Statements relied on by experts may be admissible (even if hearsay) but only to show Gardner v. U.S., 999 A.2d basis of experts’ opinion (not for the truth of the matter asserted). [In re Ca.S.; Gardner v. 55 (D.C. 2010) U.S.]

In re A.B., 999 A.2d 36 Note: Experts are permitted to rely on the opinion of another expert in formulating their opinion (D.C. 2010) when such reliance is reasonable in the experts’ particular field. [In re A.B.]

Jones v. U.S., 27 A.3d 1130 (D.C. 2011) To distinguish between lay and expert testimony, a court must look at the reasoning process by which the witness reached his proffered opinion. [King v. U.S., 74 A.3d 678 (D.C. 2013)] U.S. v. Williams, 212 F.3d 1305 (D.C. Cir. 2000)

See also FRE 701-702 Parol Evidence Rule Fistere, Inc. v. Helz, 226 The Parol Evidence Rule bars admission of extrinsic oral evidence that modifies/contradicts a A.2d 578 (D.C. 1967) contract. Exceptions include: mistakes, incompleteness, ambiguities, and other uncertainties on the contract.

Common Objections Chart, page 3

Common Objection Statute/Case/Rule Notes:

Lack of Personal D.C. Code §§ 14-301, Competency depends upon the witness’ capacity to observe, remember, narrate, and Knowledge -306 understand the duty to tell the truth. [See generally FRE 601] Every person is competent to be (Competency) a witness except if there is a statutory disqualification: See also FRE 601-606 • Lack of personal knowledge • Uncorroborated testimony against deceased/incapable person • Judge/jury as witness [See also FRE 605-606]

Competency questions not governed by statute are left to the court’s discretion [See generally FRE 601]: • Age: [Johnson v. U.S., 364 A.2d 1198 (D.C. 1976), Barnes v. U.S., 600 A.2d 821 (D.C. 1991), Galindo v. U.S., 630 A.2d 202 (D.C. 1993), Beausoleil v. U.S., 107 F.2d 292 (D.C. Cir. 1939)] • Intoxication: [Fowel v. Continental Ins. Co., 55 A.2d 205 (D.C. 1947)] • Unsound Mind: [Mitchell v. U.S., 609 A.2d 1099 (D.C. 1992)] • Mental Retardation: [U.S. v. Benn, 476 F.2d 1127 (D.C. Cir. 1972) (stating that it is in the trial judge’s sound discretion whether to order a psychiatric evaluation for a witness)] • Drug Addiction: [U.S. v. Kearney, 420 F.2d 170 (D.C. Cir. 1969)] Prejudice Outweighs Henderson v. George A trial court may prevent the introduction of evidence “if its probative value is substantially Probativeness Wash. Univ., 449 F.3d outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or 127 (D.C. Cir. 2006) by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” In considering a trial judge’s application of Rule 403, the Supreme Court has stated See also FRE 403 the standard of review as “abuse of discretion.” [Henderson v. George Wash. Univ.] Privileged D.C. Code Communications made in confidence between parties having certain relationships are barred Communication §§ 14-300, -306, -307, from disclosure upon objection. 22-4124 • husband-wife [D.C. Code §§14-306, 22-4124. But see D.C. Code §§ 4-1321.05, 16- 2359 (waiving the privilege under certain circumstances)] In re N.H., 569 A.2d 1179 • physician-patient [D.C. Code §14-307. But see D.C. Code §§ 4-1321.05, 16-2359 (D.C. 1990) (waiving the privilege under certain circumstances)] • attorney-client [common law privilege not governed by D.C. statute] In re O.L., 584 A.2d 1230 • clergy-penitent [D.C. Code §14-300] (D.C. 1990) But see In re M.L., 28 A.3d 520 (D.C. 2011) (Results of court-ordered mental health In re N.P., 882 A.2d 241 evaluations are not protected by doctor-patient privilege) (D.C. 2005)

See also FRE 501

Common Objections Chart, page 4

Common Objection Statute/Case/Rule Notes:

Lack of Relevance Silverfarb v. U.S., 40 A.2d One fact is relevant to another when the existence of the one, taken alone or in connection with 82 (D.C. 1944) other facts, render the existence of the other more certain or more probable. [Silverfarb v. U.S.]

First, the evidence must relate logically to the fact it is offered to prove. Second, the fact Reavis v. U.S., 395 A.2d sought to be established by the evidence must be material. Finally, the evidence must be 75 (D.C. 1978) adequately probative of the fact it tends to establish. It must tend to make the existence or nonexistence of a fact more or less probable than would be the case without that evidence. In re L.C., 92 A.3d 290 [Reavis v. U.S.] (D.C. 2014) Note: The scope of relevant material may be broader in Family Court proceedings. See, e.g., See also FRE 401-403 In re M.D., 758 A.2d 27 (D.C. 2000), In re J.A., 601 A.2d 69 (D.C. 1991) (a determination of best interests places a responsibility on the judge to know as much as possible about the situation). Common Objections Related to the Form of the Question Argumentative See generally FRE 403, This is a question that is essentially an argument to the jury. The question elicits no new 611(a) information. It states a conclusion and asks the witness to agree. Beyond the Scope of Super. Ct. Civ. R. 43(b) Cross-examination must be limited “only upon the subject matter of the examination in chief” Direct Examination and matters affecting the credibility of the witness. [Super. Ct. Civ. R. 43(b)] Redirect must Arnstein v. U.S., 296 F. similarly be limited to the subject matter of the cross-examination that came before it. Beyond the Scope of 946 (D.C. 1924) Cross Examination See also FRE 611 Compound Question See generally FRE 403, This is a question that brings up two separate facts within a single question. 611(a) Confusing, Misleading, See generally FRE 403, A question must be posed in a reasonably clear and specific manner so that the witness can Ambiguous, Vague, 611(a) reasonably know what information the examiner is eliciting. Unintelligible Leading Question Super. Ct. Civ. R. 43(b) A leading question suggests the desired answer to the witness. Generally improper during direct examination, unless the witness is considered hostile or adverse. [Super. Ct. Civ. R. Green v. U.S., 348 F.2d 43(b)] Leading questions on direct may be proper if necessary to develop the witness’ 340 (D.C. Cir. 1965) testimony.

See also FRE 611 Misstates Evidence or See generally FRE 403, This is a question that misstates and distorts evidence or misquotes a witness. Misquotes Witness 611(a) Speculative Question See generally FRE 403, Any question that asks the witness to speculate or guess is improper. Witnesses are permitted 611(a) to give estimates and approximations [e.g. distance, time, speed, and age].

Common Objections Chart, page 5

Common Objections Related to the Form of the Answer Asked and Answered Yeager v. Greene, 502 Questions and answers previously elicited and made by the same party should not be repeated A.2d 980 (D.C. 1985) to avoid needless consumption of time.

Henderson v. George Wash. Univ., 449 F.3d 127 (D.C. Cir. 2006)

See also FRE 403, 611 Conclusions Deloach v. U.S., 307 F.2d A conclusion is a deduction drawn from a fact or series of facts. Witnesses should testify only 653 (D.C. 1962) to facts.

See also FRE 701 Other Narrative Answer Yeager v. Greene, 502 A long narrative answer is objectionable because it does not give opposing counsel a A.2d 980 (D.C. 1985) reasonable opportunity to make a timely objection.

See also FRE 611 Unresponsive Muttered Garrett v. U.S., 20 A.3d Extrinsic evidence, such as muttered comments by a witness, is not necessarily properly Statements by 745 (D.C. 2011) included for jury determination. The judge should inquire at least a limited amount into the Witnesses and other jury’s perception of the utterance and any potential exposure to extrinsic evidence. Extrinsic Evidence Unresponsive, See generally FRE 403, An answer that does not directly respond to a question is objectionable. Portions of an answer Volunteered 611(a) that go beyond what is necessary to answer the question are objectionable.

Failure to Object Once evidence is Eldridge v. U.S., 492 A.2d 879 (D.C. 1985) admitted without objection, it may be Rose v. U.S., 629 A.2d 526 (D.C. 1993) properly considered by the trier of fact and given In re S.C.M., 653 A.2d 398 (D.C. 1995) its full probative value, and reversal will not be In re N.P., 882 A.2d 241 (D.C. 2005) obtained absent plain error.

Common Objections Chart, page 6

Rev. January 2015 HEARSAY CHART

This chart was prepared by Children’s Law Center as a practice aid for attorneys representing children, parents, family members and others in the neglect system. This chart does not constitute or substitute for legal advice. Attorneys should always do their own independent research and analysis before deciding how or whether to use the information in this chart. A complete discussion of all Hearsay-related issues in D.C. and Federal law is beyond the scope of this chart, which includes common hearsay issues and a sampling of related supports in D.C. and Federal law. This chart is intended as a practice aid and is not necessarily comprehensive. Instead, it aims to provide information on a number of the most common hearsay issues. Also, please note that the Federal Rules of Evidence (FRE) have not been formally adopted or incorporated by the D.C. Superior Court and the D.C. Court of Appeals, although D.C.’s controlling case law and statutes on evidence largely model the Federal Rules. In addition, many of the cases listed below are criminal cases, and attorneys should conduct their own analysis as to whether they can be applied to the civil context. Cases which apply the rule at issue to proceedings in Family Court have been provided in some cases, if available. Additional resources on the law of evidence include The Law of Evidence in the District of Columbia (5th Ed.) by Hon. Steffen W. Graae, Hon. Henry F. Greene, and Brian T. Fitzpatrick (which includes numerous relevant case citations) and Trial Techniques by Thomas A. Mauet.

Introduction: Hearsay is generally defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay statements are subject to proper objection1 unless they are ‘non-hearsay’ or fall into one of the enumerated exceptions to the hearsay rule, some of which are discussed below.2

NON-HEARSAY

Type Elements Statute/Case/Rule* Admission by a Statement of a party is admissible if offered by an Harris v. U.S., 834 A.2d 106 (D.C. 2003); see also FRE 801(d)(2) Party Opponent adverse party Wilson v. U.S., 995 A.2d 174 (D.C. 2010) (considering what constitutes an “adoptive admission”)

In re K.J., 11 A.3d 273 (D.C. 2011) (although the respondent was a party to the proceedings, her statements were not against interest, and thus were properly excluded as hearsay)

Bridges v. Clark, 59 A.3d 978 (D.C. 2013) (an affidavit attached to a pretrial motion is admissible as an admission of a party-opponent)

1 Jones v. U.S., 17 A.3d 628 (D.C. 2011) (On proper objection, the party seeking admission of the out-of-court statement has the burden to identify the appropriate exception and to explain how it is applicable). 2 Hearsay statements may also be admitted if they are being offered for a purpose other than to prove the truth of the matter asserted. Further discussion of this issue and analysis is beyond the scope of this Practice Kit. Prior Identification . Prior statement of identification made after D.C. Code §14-102(b)(3); see also Brown v. U.S., 840 A.2d 82 (D.C. perceiving person identified 2004), FRE 801(d)(1) . Identifying witness must be available for cross- examination Sparks v. U.S., 755 A.2d 394 (D.C. 2000) (prior identifications are . The exception applies to statements of admissible even when, at trial, the witness recants or is uncertain of identification, but not to detailed accounts of the identity) actual crime

Type Elements Statute/Case/Rule* Prior Consistent . Statement consistent with witness’ testimony D.C. Code §14-102(b)(2); see also FRE 801(d)(1) Statement by . Prior statement being used to rebut express or Witness implied charge of recent fabrication of witness or improper motive . Declarant testifies, subject to cross-examination

Prior Inconsistent . Statement inconsistent with witness’ testimony D.C. Code §14-102(b)(1); see also FRE 801(d)(1) Statement by . Prior statement given under oath subject to the Witness penalty of perjury at a trial, hearing, or other Diggs v. U.S., 28 A.3d 585 (D.C. 2011) (witness’s memory loss at trial is proceeding, or in a deposition sufficient basis to admit his grand jury testimony) . Declarant testifies, subject to cross-examination Ford v. U.S., 487 A.2d 580 (D.C. 1984) (omission of a material circumstance is an inconsistency that can open the door to impeachment)

Hearsay Chart, page 2

HEARSAY EXCEPTIONS

Type Elements Statute/Case/Rule* Business records . Recorded writing or record made as D.C. Super. Ct. Civ. R. 43-I; D.C. Family Ct. R. Q; Clyburn v. D.C., 741 memorandum or record of any act, transaction, A.2d 395 (D.C. 1999) (with important clarification of personal knowledge occurrence, or event requirement in Rule 43-I and Family Court Rule Q); see also FRE 803(6) . Report must have been made at or near time of the regularly conducted business activity Dutch v. U.S., 997 A.2d 685 (D.C. 2010) (Under the business records . Report was prepared in the regular course of exception to the hearsay rule, it is the data, not the particular format in business which the data are stored or presented, that constitutes a business . Either the original maker of the business record record) must have personal knowledge of the information in the record or must have received Note: Be aware of hearsay within hearsay and remember that the record the information from someone with such still needs to meet the authenticity requirement. personal knowledge and who is acting in the regular course of business

Excited Utterance . Presence of a serious occurrence which causes Nicholson v. U.S., 368 A.2d 561 (D.C. 1977) (sets out three-part test); a state of nervous excitement or physical shock see also FRE 803(2) in the declarant . Declaration made within a reasonably short Melendez v. U.S., 26 A.3d 234 (D.C. 2011) (when a declarant is a child, period of time after the occurrence so as to statements need not be as contemporaneous as in the case of an adult) assure that the declarant has not reflected upon his statement or premeditated or constructed it Brown v. U.S., 27 A.3d 127 (D.C. 2011) (declarant was conscious and . Presence of circumstances which in their totality able to deliberate after the attack and before he was found, but evidence suggest spontaneity and sincerity of the remark supported inference that utterances were not likely deliberative)

Statements Made for . Statement made by a patient, family member, or Sullivan v. U.S., 404 A.2d 153 (D.C. 1979) (statement may include cause Purposes of Medical person with special relationship to declarant of injury) Diagnosis or . Statement made to medical personnel Treatment . Statement reasonably related to medical Galindo v. U.S., 630 A.2d 202 (D.C. 1993) (statement may include child’s diagnosis, and not merely made to elicit report of sexual abuse) evidence for use at trial Jones v. U.S., 813 A.2d 220 (D.C. 2002) (statement may refer to psychological and emotional consequences of abuse)

In re Kya.B., 857 A.2d 465 (D.C. 2004) (statements made to medical workers about the cause of injuries fall within the medical diagnosis exception to the hearsay rule because explaining the cause of injuries may facilitate treatment)

But see In re Ca.S., 828 A.2d 184 (D.C. 2003) (limiting application when

Hearsay Chart, page 3 physician secured by the Gov’t for litigation); In re N.P., 882 A.2d 241 (D.C. 2005) (limiting application when statements made at Children’s Advocacy Center during court-ordered examination)

See also FRE 803(4); Improper Opinion (including Expert) in Common Objections chart Recorded . Witness had first-hand knowledge of event Mitchell v. U.S., 368 A.2d 514 (D.C. 1977) Recollection . Statement made at or near the time of the event while declarant had clear and accurate memory Isler v. U.S., 824 A.2d 957 (D.C. 2003) of event . Witness lacks present recollection of the event See also FRE 803(5) . Witness must adopt the statement and attest to accuracy Note: This is contrasted with refreshing the recollection of a witness on the stand. [Wilkins v. U.S., 582 A.2d 939 (D.C. 1990); Jones v. U.S., 579 A.2d 250 (D.C. 1990)] Present Sense . A statement describing or explaining an event or Hallums v. U.S., 841 A.2d 1270 (D.C. 2004); see also FRE 803(1) Impression condition made while the declarant was perceiving the event or condition, or immediately Note: Narrower in scope and subject to fewer infirmities than the thereafter exception for excited utterances. . Declarant need not be available for cross examination . Important that the statement was truly spontaneous and not subject to conscious reflection or recall from memory

State of Mind Statement concerns the declarant’s state of mind Clark v. U.S., 412 A.2d 21 (D.C. 1980); see also FRE 803(3) and declarant’s state of mind is at issue. Types: . then-existing emotional state Evans-Reid v. D.C., 930 A.2d 930 (D.C. 2007) . declarant relates to past bad act of defendant . statement conveys intent of declarant to perform Jones v. U.S., 17 A.3d 628 (D.C. 2011) an act in the future

Note: The factfinder is not permitted to consider these statements for their truth, but only to show the state of mind of the declarant

Statement Against Statement which at the time it was made was U.S. v. Hammond, 681 A.2d 1140 (D.C. 1996); see also FRE 804(b)(3) Interest against the declarant’s pecuniary, proprietary or penal interest such that a reasonable declarant would not have made the statement unless he believed it to be true . available only when declarant is unavailable

Hearsay Chart, page 4

FEDERAL RULES

OF EVIDENCE

DECEMBER 1, 2013

Printed for the use of THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES

113TH CONGRESS " COMMITTEE PRINT ! No. 5 1st Session

FEDERAL RULES

OF EVIDENCE

DECEMBER 1, 2013

Printed for the use of

THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES

U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 2013

For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop SSOP, Washington, DC 20402–0001

COMMITTEE ON THE JUDICIARY

ONE HUNDRED THIRTEENTH CONGRESS

BOB GOODLATTE, Virginia, Chairman

F. JAMES SENSENBRENNER, JR., Wisconsin JOHN CONYERS, JR., Michigan HOWARD COBLE, North Carolina JERROLD NADLER, New York LAMAR SMITH, Texas ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina SPENCER BACHUS, Alabama ZOE LOFGREN, California DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas J. RANDY FORBES, Virginia STEVE COHEN, Tennessee STEVE KING, Iowa HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico LOUIE GOHMERT, Texas JUDY CHU, California JIM JORDAN, Ohio TED DEUTCH, Florida TED POE, Texas LUIS V. GUTIERREZ, Illinois JASON CHAFFETZ, Utah KAREN BASS, California TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana TREY GOWDY, South Carolina SUZAN DelBENE, Washington MARK AMODEI, Nevada JOE GARCIA, Florida RAUL LABRADOR, Idaho HAKEEM JEFFRIES, New York BLAKE FARENTHOLD, Texas GEORGE HOLDING, North Carolina DOUG COLLINS, Georgia RON DeSANTIS, Florida JASON T. SMITH, Missouri

SHELLEY HUSBAND, Chief of Staff & General Counsel PERRY APELBAUM, Minority Staff Director & Chief Counsel

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FOREWORD This document contains the Federal Rules of Evidence, as amended to December 1, 2013. The rules were enacted by Public Law 93–595 (approved January 2, 1975) and have been amended by Acts of Congress, and further amended by the United States Supreme Court. This document has been prepared by the Commit- tee in response to the need for an official up-to-date document containing the latest amendments to the rules. For the convenience of the user, where a rule has been amended a reference to the date the amendment was promulgated and the date the amendment became effective follows the text of the rule. The Committee on Rules of Practice and Procedure and the Ad- visory Committee on the Federal Rules of Evidence, Judicial Con- ference of the United States, prepared notes explaining the purpose and intent of the amendments to the rules. The Committee Notes may be found in the Appendix to Title 28, United States Code, following the particular rule to which they relate.

Chairman, Committee on the Judiciary. DECEMBER 1, 2013.

(III)

AUTHORITY FOR PROMULGATION OF RULES TITLE 28, UNITED STATES CODE § 2072. Rules of procedure and evidence; power to prescribe (a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals. (b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. (c) Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title. (Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4648, eff. Dec. 1, 1988; amended Pub. L. 101–650, title III, §§ 315, 321, Dec. 1, 1990, 104 Stat. 5115, 5117.) § 2073. Rules of procedure and evidence; method of prescribing (a)(1) The Judicial Conference shall prescribe and publish the procedures for the consideration of proposed rules under this section. (2) The Judicial Conference may authorize the appointment of committees to assist the Conference by recommending rules to be prescribed under sections 2072 and 2075 of this title. Each such committee shall consist of members of the bench and the professional bar, and trial and appellate judges. (b) The Judicial Conference shall authorize the appointment of a standing committee on rules of practice, procedure, and evidence under subsection (a) of this section. Such standing committee shall review each recommendation of any other committees so appointed and recommend to the Judicial Conference rules of practice, procedure, and evidence and such changes in rules proposed by a committee appointed under subsection (a)(2) of this section as may be necessary to maintain consistency and otherwise promote the interest of justice. (c)(1) Each meeting for the transaction of business under this chapter by any committee appointed under this section shall be open to the public, except when the committee so meeting, in open session and with a majority present, determines that it is in the public interest that all or part of the remainder of the meeting on that day shall be closed to the public, and states the reason for so closing the meeting. Minutes of each meeting for the transaction of business under this chapter shall be maintained by the committee and made available to the public, except that any portion of such minutes, relating to a closed meeting and made available to the public, may contain such deletions as may be necessary to avoid frustrating the purposes of closing the meeting.

(V) VI AUTHORITY FOR PROMULGATION OF RULES

(2) Any meeting for the transaction of business under this chapter, by a committee appointed under this section, shall be preceded by sufficient notice to enable all interested persons to attend. (d) In making a recommendation under this section or under section 2072 or 2075, the body making that recommendation shall provide a proposed rule, an explanatory note on the rule, and a written report explaining the body’s action, including any minority or other separate views. (e) Failure to comply with this section does not invalidate a rule prescribed under section 2072 or 2075 of this title. (Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4649, eff. Dec. 1, 1988; amended Pub. L. 103–394, title I, § 104(e), Oct. 22, 1994, 108 Stat. 4110.) § 2074. Rules of procedure and evidence; submission to Congress; effective date (a) The Supreme Court shall transmit to the Congress not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law. The Supreme Court may fix the extent such rule shall apply to proceedings then pending, except that the Supreme Court shall not require the application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies. (b) Any such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress. (Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4649, eff. Dec. 1, 1988.) § 2075. Bankruptcy rules The Supreme Court shall have the power to prescribe by general rules, the forms of process, writs, pleadings, and motions, and the practice and procedure in cases under title 11. Such rules shall not abridge, enlarge, or modify any substantive right. The Supreme Court shall transmit to Congress not later than May 1 of the year in which a rule prescribed under this section is to become effective a copy of the proposed rule. The rule shall take effect no earlier than December 1 of the year in which it is transmitted to Congress unless otherwise provided by law. The bankruptcy rules promulgated under this section shall prescribe a form for the statement required under section 707(b)(2)(C) of title 11 and may provide general rules on the content of such statement. (Added Pub. L. 88–623, § 1, Oct. 3, 1964, 78 Stat. 1001; amended Pub. L. 95–598, title II, § 247, Nov. 6, 1978, 92 Stat. 2672; Pub. L. 103–394, title I, § 104(f), Oct. 22, 1994, 108 Stat. 4110; Pub. L. 109–8, title XII, § 1232, Apr. 20, 2005, 119 Stat. 202.)

HISTORICAL NOTE The Supreme Court prescribes Federal Rules of Evidence pursuant to section 2072 of Title 28, United States Code, as enacted by Title IV ‘‘Rules Enabling Act’’ of Pub. L. 100–702 (approved No- vember 19, 1988, 102 Stat. 4648), effective December 1, 1988, and section 2075 of Title 28. Pursuant to section 2074 of Title 28, the Su- preme Court transmits to Congress (not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective) a copy of the proposed rule. The rule takes effect no earlier than December 1 of the year in which the rule is transmitted unless otherwise provided by law. Pursuant to sections 3402, 3771, and 3772 of Title 18, United States Code, and sections 2072 and 2075 of Title 28, United States Code, as then in effect, the Supreme Court through the Chief Jus- tice submitted Federal Rules of Evidence to Congress on February 5, 1973 (409 U.S. 1132; Cong. Rec., vol. 119, pt. 3, p. 3247, Exec. Comm. 359, H. Doc. 93–46). To allow additional time for Congress to review the proposed rules, Public Law 93–12 (approved March 30, 1973, 87 Stat. 9) provided that the proposed rules ‘‘shall have no force or effect except to the extent, and with such amendments, as they may be expressly approved by Act of Congress’’. Public Law 93–595 1 (approved January 2, 1975, 88 Stat. 1926) enacted the Federal Rules of Evidence proposed by the Supreme Court, with amendments made by Congress, to be effective July 1, 1975. Section 1 of Public Law 94–113 (approved October 16, 1975, 89 Stat. 576) added clause (C) to Rule 801(d)(1), effective October 31, 1975. Section 1 of Public Law 94–149 (approved December 12, 1975, 89 Stat. 805) enacted technical amendments which affected the Table of Contents and Rules 410, 606(b), 803(23), 804(b)(3), and 1101(e). Section 2 of Public Law 95–540 (approved October 28, 1978, 92 Stat. 2046) added Rule 412 and inserted item 412 in the Table of Contents. The amendments apply to trials that begin more than thirty days after October 28, 1978. Section 251 of Public Law 95–598 (approved November 6, 1978, 92 Stat. 2673) amended Rule 1101(a) and (b) by striking out ‘‘, referees in bankruptcy,’’ and by substituting ‘‘title 11, United States

1 LEGISLATIVE HISTORY:

HOUSE REPORTS: No. 93–650 (Comm. on the Judiciary) and No. 93–1597 (Comm. of Conference). SENATE REPORT No. 93–1277 (Comm. on the Judiciary). CONGRESSIONAL RECORD, Vol. 120 (1974): Jan. 30, Feb. 6, considered and passed House. Nov. 21, 22, considered and passed Senate, amended. Dec. 16, Senate agreed to conference report. Dec. 17, 18, House agreed to conference report. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 11, No. 1: Jan. 3, 1975, Presidential statement.

(VII) VIII HISTORICAL NOTE

Code’’ for ‘‘the Bankruptcy Act’’, effective October 1, 1979, pursuant to section 402(c) of Public Law 95–598. Section 252 of Public Law 95–598 would have amended Rule 1101(a) by inserting ‘‘the United States Bankruptcy Courts,’’ immediately after ‘‘the United States district courts,’’, effective April 1, 1984, pursuant to section 402(b) of Public Law 95–598. How- ever, following a series of amendments (extending the April 1, 1984, effective date) by Public Laws 98–249, § 1(a), 98–271, § 1(a), 98–299, § 1(a), 98–325, § 1(a), and 98–353, § 121(a), section 402(b) of Pub- lic Law 95–598 was amended by section 113 of Public Law 98–353 to provide that the amendment ‘‘shall not be effective’’. An amendment to Rule 410 was proposed by the Supreme Court by order dated April 30, 1979, transmitted to Congress by the Chief Justice on the same day (441 U.S. 970, 1007; Cong. Rec., vol. 125, pt. 8, p. 9366, Exec. Comm. 1456; H. Doc. 96–112), and was to be effective August 1, 1979. Public Law 96–42 (approved July 31, 1979, 93 Stat. 326) delayed the effective date of the amendment to Rule 410 until December 1, 1980, or until and to the extent approved by Act of Congress, whichever is earlier. In the absence of further action by Congress, the amendment to Rule 410 became effective December 1, 1980. Sections 142 and 402 of Public Law 97–164 (approved April 2, 1982, 96 Stat. 45, 57) amended Rule 1101(a), effective October 1, 1982. Section 406 of Public Law 98–473 (approved October 12, 1984, 98 Stat. 2067) amended Rule 704. Additional amendments were adopted by the Court by order dated March 2, 1987, transmitted to Congress by the Chief Justice on the same day (480 U.S. 1023; Cong. Rec., vol. 133, pt. 4, p. 4484, Exec. Comm. 713; H. Doc. 100–41), and became effective October 1, 1987. The amendments affected Rules 101, 104(c), (d), 106, 404(a)(1), (b), 405(b), 411, 602 to 604, 606, 607, 608(b), 609(a), 610, 611(c), 612, 613, 615, 701, 703, 705, 706(a), 801(a), (d), 803(5), (18), (19), (21), (24), 804(a), (b)(2), (3), (5), 806, 902(2), (3), 1004(3), 1007, and 1101(a). Additional amendments were adopted by the Court by order dated April 25, 1988, transmitted to Congress by the Chief Justice on the same day (485 U.S. 1049; Cong. Rec., vol. 134, pt. 7, p. 9154, Exec. Comm. 3517; H. Doc. 100–187), and became effective November 1, 1988. The amendments affected Rules 101, 602, 608(b), 613(b), 615, 902(3), and 1101(a), (e). Sections 7046 and 7075 of Public Law 100–690 (approved November 18, 1988, 102 Stat. 4400, 4405) amended the Tables of Contents and Rules 412, 615, 804(a)(5), and 1101(a). Section 7075(a) of Public Law 100–690, which directed the amendment of Rule 615 by inserting ‘‘a’’ before ‘‘party which is not a natural person.’’, could not be executed because ‘‘party which is not a natural person.’’ did not appear. However, the word ‘‘a’’ was inserted by the intervening amendment adopted by the Court by order dated April 25, 1988, effective November 1, 1988. Section 7075(c)(1) of Public Law 100–690, which directed the amendment of Rule 1101(a) by striking ‘‘Rules’’ and inserting ‘‘rules’’, could not be executed because of the intervening amendment adopted by the Court by order dated April 25, 1988, effective November 1, 1988. An additional amendment was adopted by the Court by order dated January 26, 1990, transmitted to Congress by the Chief Jus- tice on the same day (493 U.S. 1175; Cong. Rec., vol. 136, pt. 1, p. HISTORICAL NOTE IX

662, Exec. Comm. 2370; H. Doc. 101–142), and became effective De- cember 1, 1990. The amendment affected Rule 609(a). Additional amendments were adopted by the Court by order dated April 30, 1991, transmitted to Congress by the Chief Justice on the same day (500 U.S. 1001; Cong. Rec., vol. 137, pt. 7, p. 9721, Ex. Comm. 1189; H. Doc. 102–76), and became effective December 1, 1991. The amendments affected Rules 404(b) and 1102. Additional amendments were adopted by the Court by order dated April 22, 1993, transmitted to Congress by the Chief Justice on the same day (507 U.S. 1187; Cong. Rec., vol. 139, pt. 6, p. 8127, Ex. Comm. 1104; H. Doc. 103–76), and became effective December 1, 1993. The amendments affected Rules 101, 705, and 1101(a), (e). An additional amendment was adopted by the Court by order dated April 29, 1994, and transmitted to Congress by the Chief Jus- tice on the same day (511 U.S. 1187; Cong. Rec., vol. 140, pt. 7, p. 8903, Ex. Comm. 3085; H. Doc. 103–250). The amendment affected Rule 412 and was to become effective December 1, 1994. Section 40141(a) of Public Law 103–322 (approved September 13, 1994, 108 Stat. 1918) provided that such amendment would take effect on December 1, 1994, but with the general amendment of Rule 412 made by section 40141(b) of Public Law 103–322. Section 320935(a) of Public Law 103–322 (approved September 13, 1994, 108 Stat. 2135) amended the Federal Rules of Evidence by add- ing Rules 413 to 415, with provisions in section 320935(b)–(e) of Pub- lic Law 103–322 relating to the effective date and application of such rules. Pursuant to Pub. L. 103–322, § 320935(c), the Judicial Conference transmitted a report to Congress on February 9, 1995, containing recommendations different from the amendments made by Pub. L. 103–322, § 320935(a). Congress did not adopt the recommendations submitted or provide otherwise by law. Accord- ingly, Rules 413 to 415, as so added, became effective on July 9, 1995. Additional amendments were adopted by the Court by order dated April 11, 1997, transmitted to Congress by the Chief Justice on the same day (520 U.S. 1323; Cong. Rec., vol. 143, pt. 4, p. 5550, Ex. Comm. 2798; H. Doc. 105–69), and became effective December 1, 1997. The amendments affected Rules 407, 801, 803, 804, and 806 and added Rule 807. Additional amendments were adopted by the Court by order dated April 24, 1998, transmitted to Congress by the Chief Justice on the same day (523 U.S. 1235; Cong. Rec., vol. 144, pt. 6, p. 8151, Ex. Comm. 8996 to Ex. Comm. 8998; H. Doc. 105–268), and became effective December 1, 1998. The amendments affected Rule 615. Additional amendments were adopted by the Court by order dated April 17, 2000, transmitted to Congress by the Chief Justice on the same day (529 U.S. 1189; Cong. Rec., vol. 146, pt. 5, p. 6328, Ex. Comm. 7333; H. Doc. 106–225), and became effective December 1, 2000. The amendments affected Rules 103, 404, 701, 702, 703, 803, and 902. An additional amendment was adopted by the Court by order dated March 27, 2003, transmitted to Congress by the Chief Justice on the same day (538 U.S. 1097; Cong. Rec., vol. 149, pt. 6, p. 7689, Ex. Comm. 1494; H. Doc. 108–57), and became effective December 1, 2003. The amendment affected Rule 608. X HISTORICAL NOTE

Additional amendments were adopted by the Court by order dated April 12, 2006, transmitted to Congress by the Chief Justice on the same day (547 U.S. 1281; Cong. Rec., vol. 152, pt. 6, p. 7213, Ex. Comm. 7320; H. Doc. 109–108), and became effective December 1, 2006. The amendments affected Rules 404, 408, 606, and 609. Section 1 of Public Law 110–322 (approved September 19, 2008, 122 Stat. 3537) added Rule 502 and inserted item 502 in the Table of Contents. The amendments apply in all proceedings commenced after September 19, 2008, and, insofar as is just and practicable, in all proceedings pending on that date. An additional amendment was adopted by the Court by order dated April 28, 2010, transmitted to Congress by the Chief Justice on the same day (559 U.S. 1157; Cong. Rec., vol. 156, pt. 6, p. 8139, Ex. Comm. 7475; H. Doc. 111–113), and became effective December 1, 2010. The amendment affected Rule 804. Additional amendments were adopted by the Court by order dated April 26, 2011, transmitted to Congress by the Chief Justice on the same day (563 U.S.——; Cong. Rec., vol. 157, p. H3407, Daily Issue, Ex. Comm. 1662; H. Doc. 112–28), and became effective De- cember 1, 2011. The amendments affected Rules 101 to 1103. An additional amendment was adopted by the Court by order dated April 13, 2013, transmitted to Congress by the Chief Justice on April 16, 2013 (569 U.S.——; Cong. Rec., vol. 159, p. H2652, Daily Issue, Ex. Comm. 1492; H. Doc. 113–26), and became effective De- cember 1, 2013. The amendment affected Rule 803. Committee Notes Committee Notes prepared by the Committee on Rules of Prac- tice and Procedure and the Advisory Committee on the Federal Rules of Evidence, Judicial Conference of the United States, explaining the purpose and intent of the amendments are set out in the Appendix to Title 28, United States Code, following the particular rule to which they relate. In addition, the notes are set out in the House documents listed above.

TABLE OF CONTENTS

Page Foreword ...... III Authority for promulgation of rules ...... V Historical note ...... VII

RULES

Article I. General Provisions: Rule 101. Scope; definitions ...... 1 Rule 102. Purpose ...... 1 Rule 103. Rulings on evidence ...... 1 Rule 104. Preliminary questions ...... 2 Rule 105. Limiting evidence that is not admissible against other parties or for other purposes ...... 2 Rule 106. Remainder of or related writings or recorded statements ...... 2 Article II. Judicial Notice: Rule 201. Judicial notice of adjudicative facts ...... 3 Article III. Presumptions in Civil Cases: Rule 301. Presumptions in civil cases generally ...... 3 Rule 302. Applying State law to presumptions in civil cases ...... 3 Article IV. Relevance and Its Limits: Rule 401. Test for relevant evidence ...... 3 Rule 402. General admissibility of relevant evidence ...... 4 Rule 403. Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons ...... 4 Rule 404. Character evidence; crimes or other acts ...... 4 Rule 405. Methods of proving character ...... 5 Rule 406. Habit; routine practice ...... 5 Rule 407. Subsequent remedial measures ...... 5 Rule 408. Compromise offers and negotiations ...... 5 Rule 409. Offers to pay medical and similar expenses ...... 6 Rule 410. Pleas, plea discussions, and related statements ...... 6 Rule 411. Liability insurance ...... 6 Rule 412. Sex-offense cases: the victim’s sexual behavior or predisposition .. 7 Rule 413. Similar crimes in sexual-assault cases ...... 7 Rule 414. Similar crimes in child-molestation cases ...... 8 Rule 415. Similar acts in civil cases involving sexual assault or child molestation ...... 9 Article V. Privileges: Rule 501. Privilege in general ...... 9 Rule 502. Attorney-client privilege and work product; limitations on waiver 9 Article VI. Witnesses: Rule 601. Competency to testify in general ...... 10 Rule 602. Need for personal knowledge ...... 10 Rule 603. Oath or affirmation to testify truthfully ...... 10 Rule 604. Interpreter ...... 11 Rule 605. Judge’s competency as a witness ...... 11 Rule 606. Juror’s competency as a witness ...... 11 Rule 607. Who may impeach a witness ...... 11 Rule 608. A witness’s character for truthfulness or untruthfulness ...... 11 Rule 609. Impeachment by evidence of a criminal conviction ...... 12 Rule 610. Religious beliefs or opinions ...... 13 Rule 611. Mode and order of examining witnesses and presenting evidence .. 13

(XI) XII CONTENTS

Article VI. Witnesses—Continued Page Rule 612. Writing used to refresh a witness’s memory ...... 13 Rule 613. Witness’s prior statement ...... 14 Rule 614. Court’s calling or examining a witness ...... 14 Rule 615. Excluding witnesses ...... 14 Article VII. Opinions and Expert Testimony: Rule 701. Opinion testimony by lay witnesses ...... 15 Rule 702. Testimony by expert witnesses ...... 15 Rule 703. Bases of an expert’s opinion testimony ...... 15 Rule 704. Opinion on an ultimate issue ...... 15 Rule 705. Disclosing the facts or data underlying an expert’s opinion ...... 16 Rule 706. Court-appointed expert witnesses ...... 16 Article VIII. Hearsay: Rule 801. Definitions that apply to this article; exclusions from hearsay ...... 16 Rule 802. The rule against hearsay ...... 17 Rule 803. Exceptions to the rule against hearsay—regardless of whether the declarant is available as a witness ...... 17 Rule 804. Exceptions to the rule against hearsay—when the declarant is unavailable as a witness ...... 21 Rule 805. Hearsay within hearsay ...... 22 Rule 806. Attacking and supporting the declarant’s credibility ...... 22 Rule 807. Residual exception ...... 22 Article IX. Authentication and Identification: Rule 901. Authenticating or identifying evidence ...... 23 Rule 902. Evidence that is self-authenticating ...... 24 Rule 903. Subscribing witness’s testimony ...... 25 Article X. Contents of Writings, Recordings, and Photographs: Rule 1001. Definitions that apply to this article ...... 26 Rule 1002. Requirement of the original...... 26 Rule 1003. Admissibility of duplicates ...... 26 Rule 1004. Admissibility of other evidence of content ...... 26 Rule 1005. Copies of public records to prove content ...... 27 Rule 1006. Summaries to prove content ...... 27 Rule 1007. Testimony or statement of a party to prove content ...... 27 Rule 1008. Functions of the court and jury ...... 27 Article XI. Miscellaneous Rules: Rule 1101. Applicability of the rules ...... 27 Rule 1102. Amendments ...... 28 Rule 1103. Title ...... 28

FEDERAL RULES OF EVIDENCE Effective July 1, 1975, as amended to December 1, 2013

ARTICLE I. GENERAL PROVISIONS Rule 101. Scope; Definitions (a) SCOPE. These rules apply to proceedings in United States courts. The specific courts and proceedings to which the rules apply, along with exceptions, are set out in Rule 1101. (b) DEFINITIONS. In these rules: (1) ‘‘civil case’’ means a civil action or proceeding; (2) ‘‘criminal case’’ includes a criminal proceeding; (3) ‘‘public office’’ includes a public agency; (4) ‘‘record’’ includes a memorandum, report, or data compilation; (5) a ‘‘rule prescribed by the Supreme Court’’ means a rule adopted by the Supreme Court under statutory authority; and (6) a reference to any kind of written material or any other medium includes electronically stored information. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 102. Purpose These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 103. Rulings on Evidence (a) PRESERVING A CLAIM OF ERROR. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (1) if the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; or (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context. (b) NOT NEEDING TO RENEW AN OBJECTION OR OFFER OF PROOF. Once the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal. (c) COURT’S STATEMENT ABOUT THE RULING; DIRECTING AN OFFER OF PROOF. The court may make any statement about the character or form of the evidence, the objection made, and the ruling.

(1) Rule 104 FEDERAL RULES OF EVIDENCE 2

The court may direct that an offer of proof be made in question- and-answer form. (d) PREVENTING THE JURY FROM HEARING INADMISSIBLE EVIDENCE. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means. (e) TAKING NOTICE OF PLAIN ERROR. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved. (As amended Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 104. Preliminary Questions (a) IN GENERAL. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. (b) RELEVANCE THAT DEPENDS ON A FACT. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. (c) CONDUCTING A HEARING SO THAT THE JURY CANNOT HEAR IT. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if: (1) the hearing involves the admissibility of a confession; (2) a defendant in a criminal case is a witness and so requests; or (3) justice so requires. (d) CROSS-EXAMINING A DEFENDANT IN A CRIMINAL CASE. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case. (e) EVIDENCE RELEVANT TO WEIGHT AND CREDIBILITY. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 106. Remainder of or Related Writings or Recorded State- ments If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time. 3 FEDERAL RULES OF EVIDENCE Rule 401

(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.)

ARTICLE II. JUDICIAL NOTICE Rule 201. Judicial Notice of Adjudicative Facts (a) SCOPE. This rule governs judicial notice of an adjudicative fact only, not a legislative fact. (b) KINDS OF FACTS THAT MAY BE JUDICIALLY NOTICED. The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. (c) TAKING NOTICE. The court: (1) may take judicial notice on its own; or (2) must take judicial notice if a party requests it and the court is supplied with the necessary information. (d) TIMING. The court may take judicial notice at any stage of the proceeding. (e) OPPORTUNITY TO BE HEARD. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard. (f) INSTRUCTING THE JURY. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.)

ARTICLE III. PRESUMPTIONS IN CIVIL CASES Rule 301. Presumptions in Civil Cases Generally In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 302. Applying State Law to Presumptions in Civil Cases In a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.)

ARTICLE IV. RELEVANCE AND ITS LIMITS Rule 401. Test for Relevant Evidence Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and Rule 402 FEDERAL RULES OF EVIDENCE 4

(b) the fact is of consequence in determining the action. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 402. General Admissibility of Relevant Evidence Relevant evidence is admissible unless any of the following provides otherwise: • the United States Constitution; • a federal statute; • these rules; or • other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 404. Character Evidence; Crimes or Other Acts (a) CHARACTER EVIDENCE. (1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case: (A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; (B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may: (i) offer evidence to rebut it; and (ii) offer evidence of the defendant’s same trait; and (C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor. (3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609. (b) CRIMES, WRONGS, OR OTHER ACTS. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: 5 FEDERAL RULES OF EVIDENCE Rule 408

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial—or during trial if the court, for good cause, excuses lack of pretrial notice. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 405. Methods of Proving Character (a) BY REPUTATION OR OPINION. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct. (b) BY SPECIFIC INSTANCES OF CONDUCT. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 406. Habit; Routine Practice Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 407. Subsequent Remedial Measures When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: • negligence; • culpable conduct; • a defect in a product or its design; or • a need for a warning or instruction. But the court may admit this evidence for another purpose, such as impeachment or—if disputed—proving ownership, control, or the feasibility of precautionary measures. (As amended Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 408. Compromise Offers and Negotiations (a) PROHIBITED USES. Evidence of the following is not admissible—on behalf of any party—either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim; and Rule 409 FEDERAL RULES OF EVIDENCE 6

(2) conduct or a statement made during compromise negotiations about the claim—except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority. (b) EXCEPTIONS. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. (As amended Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 409. Offers to Pay Medical and Similar Expenses Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 410. Pleas, Plea Discussions, and Related Statements

(a) PROHIBITED USES. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: (1) a guilty plea that was later withdrawn; (2) a nolo contendere plea; (3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or (4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea. (b) EXCEPTIONS. The court may admit a statement described in Rule 410(a)(3) or (4): (1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or (2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present. (As amended Pub. L. 94–149, § 1(9), Dec. 12, 1975, 89 Stat. 805; Apr. 30, 1979, eff. Dec. 1, 1980; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 411. Liability Insurance Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.) 7 FEDERAL RULES OF EVIDENCE Rule 413

Rule 412. Sex-Offense Cases: The Victim’s Sexual Behavior or Pre- disposition (a) PROHIBITED USES. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim’s sexual predisposition. (b) EXCEPTIONS. (1) Criminal Cases. The court may admit the following evidence in a criminal case: (A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the defendant’s constitutional rights. (2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy. (c) PROCEDURE TO DETERMINE ADMISSIBILITY. (1) Motion. If a party intends to offer evidence under Rule 412(b), the party must: (A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered; (B) do so at least 14 days before trial unless the court, for good cause, sets a different time; (C) serve the motion on all parties; and (D) notify the victim or, when appropriate, the victim’s guardian or representative. (2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed. (d) DEFINITION OF ‘‘VICTIM.’’ In this rule, ‘‘victim’’ includes an alleged victim. (As added Pub. L. 95–540, § 2(a), Oct. 28, 1978, 92 Stat. 2046, eff. Nov. 28, 1978; amended Pub. L. 100–690, title VII, § 7046(a), Nov. 18, 1988, 102 Stat. 4400; Apr. 29, 1994, eff. Dec. 1, 1994; Sept. 13, 1994, eff. Dec. 1, 1994; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 413. Similar Crimes in Sexual-Assault Cases (a) PERMITTED USES. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant. Rule 414 FEDERAL RULES OF EVIDENCE 8

(b) DISCLOSURE TO THE DEFENDANT. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause. (c) EFFECT ON OTHER RULES. This rule does not limit the admission or consideration of evidence under any other rule. (d) DEFINITION OF ‘‘SEXUAL ASSAULT.’’ In this rule and Rule 415, ‘‘sexual assault’’ means a crime under federal law or under state law (as ‘‘state’’ is defined in 18 U.S.C. § 513) involving: (1) any conduct prohibited by 18 U.S.C. chapter 109A; (2) contact, without consent, between any part of the defendant’s body—or an object—and another person’s genitals or anus; (3) contact, without consent, between the defendant’s genitals or anus and any part of another person’s body; (4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or (5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)–(4). (As added Pub. L. 103–322, title XXXII, § 320935(a), Sept. 13, 1994, 108 Stat. 2136, eff. July 9, 1995; amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 414. Similar Crimes in Child-Molestation Cases (a) PERMITTED USES. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant. (b) DISCLOSURE TO THE DEFENDANT. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause. (c) EFFECT ON OTHER RULES. This rule does not limit the admission or consideration of evidence under any other rule. (d) DEFINITION OF ‘‘CHILD’’ AND ‘‘CHILD MOLESTATION.’’ In this rule and Rule 415: (1) ‘‘child’’ means a person below the age of 14; and (2) ‘‘child molestation’’ means a crime under federal law or under state law (as ‘‘state’’ is defined in 18 U.S.C. § 513) involving: (A) any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child; (B) any conduct prohibited by 18 U.S.C. chapter 110; (C) contact between any part of the defendant’s body—or an object—and a child’s genitals or anus; (D) contact between the defendant’s genitals or anus and any part of a child’s body; (E) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on a child; or (F) an attempt or conspiracy to engage in conduct described in subparagraphs (A)–(E). (As added Pub. L. 103–322, title XXXII, § 320935(a), Sept. 13, 1994, 108 Stat. 2136, eff. July 9, 1995; amended Apr. 26, 2011, eff. Dec. 1, 2011.) 9 FEDERAL RULES OF EVIDENCE Rule 502

Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation (a) PERMITTED USES. In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414. (b) DISCLOSURE TO THE OPPONENT. If a party intends to offer this evidence, the party must disclose it to the party against whom it will be offered, including witnesses’ statements or a summary of the expected testimony. The party must do so at least 15 days before trial or at a later time that the court allows for good cause. (c) EFFECT ON OTHER RULES. This rule does not limit the admission or consideration of evidence under any other rule. (As added Pub. L. 103–322, title XXXII, § 320935(a), Sept. 13, 1994, 108 Stat. 2137, eff. July 9, 1995; amended Apr. 26, 2011, eff. Dec. 1, 2011.)

ARTICLE V. PRIVILEGES Rule 501. Privilege in General The common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege unless any of the following provides otherwise: • the United States Constitution; • a federal statute; or • rules prescribed by the Supreme Court. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection. (a) DISCLOSURE MADE IN A FEDERAL PROCEEDING OR TO A FEDERAL OFFICE OR AGENCY; SCOPE OF A WAIVER. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together. (b) INADVERTENT DISCLOSURE. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B). Rule 601 FEDERAL RULES OF EVIDENCE 10

(c) DISCLOSURE MADE IN A STATE PROCEEDING. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure: (1) would not be a waiver under this rule if it had been made in a federal proceeding; or (2) is not a waiver under the law of the state where the disclosure occurred. (d) CONTROLLING EFFECT OF A COURT ORDER. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other federal or state proceeding. (e) CONTROLLING EFFECT OF A PARTY AGREEMENT. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order. (f) CONTROLLING EFFECT OF THIS RULE. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision. (g) DEFINITIONS. In this rule: (1) ‘‘attorney-client privilege’’ means the protection that applicable law provides for confidential attorney-client communications; and (2) ‘‘work-product protection’’ means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial. (As added Pub. L. 110–322, § 1(a), Sept. 19, 2008, 122 Stat. 3537; amended Apr. 26, 2011, eff. Dec. 1, 2011.)

ARTICLE VI. WITNESSES Rule 601. Competency to Testify in General Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 602. Need for Personal Knowledge A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 603. Oath or Affirmation to Testify Truthfully Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience. 11 FEDERAL RULES OF EVIDENCE Rule 608

(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 604. Interpreter An interpreter must be qualified and must give an oath or affirmation to make a true translation. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 605. Judge’s Competency as a Witness The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 606. Juror’s Competency as a Witness (a) AT THE TRIAL. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence. (b) DURING AN INQUIRY INTO THE VALIDITY OF A VERDICT OR IN- DICTMENT. (1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters. (2) Exceptions. A juror may testify about whether: (A) extraneous prejudicial information was improperly brought to the jury’s attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form. (As amended Pub. L. 94–149, § 1(10), Dec. 12, 1975, 89 Stat. 805; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 607. Who May Impeach a Witness Any party, including the party that called the witness, may attack the witness’s credibility. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 608. A Witness’s Character for Truthfulness or Untruthfulness (a) REPUTATION OR OPINION EVIDENCE. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. Rule 609 FEDERAL RULES OF EVIDENCE 12

(b) SPECIFIC INSTANCES OF CONDUCT. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose character the witness being cross- examined has testified about. By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Mar. 27, 2003, eff. Dec. 1, 2003; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 609. Impeachment by Evidence of a Criminal Conviction (a) IN GENERAL. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction: (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and (B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and (2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement. (b) LIMIT ON USING THE EVIDENCE AFTER 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if: (1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use. (c) EFFECT OF A PARDON, ANNULMENT, OR CERTIFICATE OF REHA- BILITATION. Evidence of a conviction is not admissible if: (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. (d) JUVENILE ADJUDICATIONS. Evidence of a juvenile adjudication is admissible under this rule only if: 13 FEDERAL RULES OF EVIDENCE Rule 612

(1) it is offered in a criminal case; (2) the adjudication was of a witness other than the defendant; (3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and (4) admitting the evidence is necessary to fairly determine guilt or innocence. (e) PENDENCY OF AN APPEAL. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Jan. 26, 1990, eff. Dec. 1, 1990; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 26, 2011, eff. Dec. 1, 2011.)

Rule 610. Religious Beliefs or Opinions Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.)

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence

(a) CONTROL BY THE COURT; PURPOSES. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. (b) SCOPE OF CROSS-EXAMINATION. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination. (c) LEADING QUESTIONS. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.)

Rule 612. Writing Used to Refresh a Witness’s Memory

(a) SCOPE. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: (1) while testifying; or (2) before testifying, if the court decides that justice requires the party to have those options. Rule 613 FEDERAL RULES OF EVIDENCE 14

(b) ADVERSE PARTY’S OPTIONS; DELETING UNRELATED MATTER. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, de- lete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record. (c) FAILURE TO PRODUCE OR DELIVER THE WRITING. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or—if justice so requires—declare a mistrial. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 613. Witness’s Prior Statement (a) SHOWING OR DISCLOSING THE STATEMENT DURING EXAMINA- TION. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney. (b) EXTRINSIC EVIDENCE OF A PRIOR INCONSISTENT STATEMENT. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2). (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 614. Court’s Calling or Examining a Witness (a) CALLING. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness. (b) EXAMINING. The court may examine a witness regardless of who calls the witness. (c) OBJECTIONS. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 615. Excluding Witnesses At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding: (a) a party who is a natural person; (b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney; (c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or 15 FEDERAL RULES OF EVIDENCE Rule 704

(d) a person authorized by statute to be present. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Pub. L. 100–690, title VII, § 7075(a), Nov. 18, 1988, 102 Stat. 4405; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 26, 2011, eff. Dec. 1, 2011.)

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY Rule 701. Opinion Testimony by Lay Witnesses If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 702. Testimony by Expert Witnesses A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. (As amended Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 703. Bases of an Expert’s Opinion Testimony An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 704. Opinion on an Ultimate Issue (a) IN GENERAL—NOT AUTOMATICALLY OBJECTIONABLE. An opinion is not objectionable just because it embraces an ultimate issue. (b) EXCEPTION. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the Rule 705 FEDERAL RULES OF EVIDENCE 16

crime charged or of a defense. Those matters are for the trier of fact alone. (As amended Pub. L. 98–473, title II, § 406, Oct. 12, 1984, 98 Stat. 2067; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 705. Disclosing the Facts or Data Underlying an Expert’s Opinion Unless the court orders otherwise, an expert may state an opinion—and give the reasons for it—without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 706. Court-Appointed Expert Witnesses (a) APPOINTMENT PROCESS. On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act. (b) EXPERT’S ROLE. The court must inform the expert of the expert’s duties. The court may do so in writing and have a copy filed with the clerk or may do so orally at a conference in which the parties have an opportunity to participate. The expert: (1) must advise the parties of any findings the expert makes; (2) may be deposed by any party; (3) may be called to testify by the court or any party; and (4) may be cross-examined by any party, including the party that called the expert. (c) COMPENSATION. The expert is entitled to a reasonable compensation, as set by the court. The compensation is payable as follows: (1) in a criminal case or in a civil case involving just compensation under the Fifth Amendment, from any funds that are provided by law; and (2) in any other civil case, by the parties in the proportion and at the time that the court directs—and the compensation is then charged like other costs. (d) DISCLOSING THE APPOINTMENT TO THE JURY. The court may authorize disclosure to the jury that the court appointed the expert. (e) PARTIES’ CHOICE OF THEIR OWN EXPERTS. This rule does not limit a party in calling its own experts. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.)

ARTICLE VIII. HEARSAY Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay (a) STATEMENT. ‘‘Statement’’ means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. 17 FEDERAL RULES OF EVIDENCE Rule 803

(b) DECLARANT. ‘‘Declarant’’ means the person who made the statement. (c) HEARSAY. ‘‘Hearsay’’ means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. (d) STATEMENTS THAT ARE NOT HEARSAY. A statement that meets the following conditions is not hearsay: (1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement: (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (C) identifies a person as someone the declarant perceived earlier. (2) An Opposing Party’s Statement. The statement is offered against an opposing party and: (A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; (D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or (E) was made by the party’s coconspirator during and in furtherance of the conspiracy. The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E). (As amended Pub. L. 94–113, § 1, Oct. 16, 1975, 89 Stat. 576, eff. Oct. 31, 1975; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 802. The Rule Against Hearsay Hearsay is not admissible unless any of the following provides otherwise: • a federal statute; • these rules; or • other rules prescribed by the Supreme Court. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: Rule 803 FEDERAL RULES OF EVIDENCE 18

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. (2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. (3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will. (4) Statement Made for Medical Diagnosis or Treatment. A statement that: (A) is made for—and is reasonably pertinent to—medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause. (5) Recorded Recollection. A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party. (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by—or from information transmitted by—someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness. (7) Absence of a Record of a Regularly Conducted Activity. Evi- dence that a matter is not included in a record described in paragraph (6) if: (A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness. (8) Public Records. A record or statement of a public office if: (A) it sets out: (i) the office’s activities; 19 FEDERAL RULES OF EVIDENCE Rule 803

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) neither the source of information nor other circumstances indicate a lack of trustworthiness. (9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty. (10) Absence of a Public Record. Testimony—or a certification under Rule 902—that a diligent search failed to disclose a public record or statement if: (A) the testimony or certification is admitted to prove that (i) the record or statement does not exist; or (ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and (B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice—unless the court sets a different time for the notice or the objection. (11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization. (12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate: (A) made by a person who is authorized by a religious organization or by law to perform the act certified; (B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and (C) purporting to have been issued at the time of the act or within a reasonable time after it. (13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a por- trait, or engraving on an urn or burial marker. (14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if: (A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it; (B) the record is kept in a public office; and (C) a statute authorizes recording documents of that kind in that office. (15) Statements in Documents That Affect an Interest in Prop- erty. A statement contained in a document that purports to establish or affect an interest in property if the matter stated Rule 803 FEDERAL RULES OF EVIDENCE 20

was relevant to the document’s purpose—unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document. (16) Statements in Ancient Documents. A statement in a document that is at least 20 years old and whose authenticity is established. (17) Market Reports and Similar Commercial Publications. Mar- ket quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations. (18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if: (A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and (B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit. (19) Reputation Concerning Personal or Family History. A reputation among a person’s family by blood, adoption, or marriage—or among a person’s associates or in the community— concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history. (20) Reputation Concerning Boundaries or General History. A reputation in a community—arising before the controversy— concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation. (21) Reputation Concerning Character. A reputation among a person’s associates or in the community concerning the person’s character. (22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if: (A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea; (B) the conviction was for a crime punishable by death or by imprisonment for more than a year; (C) the evidence is admitted to prove any fact essential to the judgment; and (D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant. The pendency of an appeal may be shown but does not affect admissibility. (23) Judgments Involving Personal, Family, or General History, or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter: (A) was essential to the judgment; and (B) could be proved by evidence of reputation. (24) [Other Exceptions.] [Transferred to Rule 807.] 21 FEDERAL RULES OF EVIDENCE Rule 804

(As amended Pub. L. 94–149, § 1(11), Dec. 12, 1975, 89 Stat. 805; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011; Apr. 13, 2013, eff. Dec. 1, 2013.) Rule 804. Exceptions to the Rule Against Hearsay—When the De- clarant Is Unavailable as a Witness (a) CRITERIA FOR BEING UNAVAILABLE. A declarant is considered to be unavailable as a witness if the declarant: (1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies; (2) refuses to testify about the subject matter despite a court order to do so; (3) testifies to not remembering the subject matter; (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or (5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure: (A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or (B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4). But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying. (b) THE EXCEPTIONS. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: (1) Former Testimony. Testimony that: (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who had—or, in a civil case, whose predecessor in interest had—an opportunity and similar motive to develop it by direct, cross-, or redirect examination. (2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances. (3) Statement Against Interest. A statement that: (A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability. Rule 805 FEDERAL RULES OF EVIDENCE 22

(4) Statement of Personal or Family History. A statement about: (A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or (B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate. (5) [Other Exceptions.] [Transferred to Rule 807.] (6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A statement offered against a party that wrongfully caused—or acquiesced in wrongfully causing—the declarant’s unavailability as a witness, and did so intending that result. (As amended Dec. 12, 1975; Mar. 2, 1987, eff. Oct. 1, 1987; Nov. 18, 1988; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 28, 2010, eff. Dec. 1, 2010; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 805. Hearsay Within Hearsay Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 806. Attacking and Supporting the Declarant’s Credibility When a hearsay statement—or a statement described in Rule 801(d)(2)(C), (D), or (E)—has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 807. Residual Exception (a) IN GENERAL. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804: (1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and 23 FEDERAL RULES OF EVIDENCE Rule 901

(4) admitting it will best serve the purposes of these rules and the interests of justice. (b) NOTICE. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it. (Added Apr. 11, 1997, eff. Dec. 1, 1997; amended Apr. 26, 2011, eff. Dec. 1, 2011.)

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION Rule 901. Authenticating or Identifying Evidence (a) IN GENERAL. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. (b) EXAMPLES. The following are examples only—not a complete list—of evidence that satisfies the requirement: (1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be. (2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation. (3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact. (4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances. (5) Opinion About a Voice. An opinion identifying a person’s voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker. (6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to: (A) a particular person, if circumstances, including self- identification, show that the person answering was the one called; or (B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone. (7) Evidence About Public Records. Evidence that: (A) a document was recorded or filed in a public office as authorized by law; or (B) a purported public record or statement is from the office where items of this kind are kept. (8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it: (A) is in a condition that creates no suspicion about its authenticity; Rule 902 FEDERAL RULES OF EVIDENCE 24

(B) was in a place where, if authentic, it would likely be; and (C) is at least 20 years old when offered. (9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result. (10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 902. Evidence That Is Self-Authenticating The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted: (1) Domestic Public Documents That Are Sealed and Signed. A document that bears: (A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and (B) a signature purporting to be an execution or attestation. (2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document that bears no seal if: (A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and (B) another public officer who has a seal and official duties within that same entity certifies under seal—or its equivalent—that the signer has the official capacity and that the signature is genuine. (3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester—or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either: (A) order that it be treated as presumptively authentic without final certification; or (B) allow it to be evidenced by an attested summary with or without final certification. (4) Certified Copies of Public Records. A copy of an official record—or a copy of a document that was recorded or filed in 25 FEDERAL RULES OF EVIDENCE Rule 903

a public office as authorized by law—if the copy is certified as correct by: (A) the custodian or another person authorized to make the certification; or (B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court. (5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority. (6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical. (7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control. (8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments. (9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law. (10) Presumptions Under a Federal Statute. A signature, document, or anything else that a federal statute declares to be presumptively or prima facie genuine or authentic. (11) Certified Domestic Records of a Regularly Conducted Activ- ity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)–(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record—and must make the record and certification available for inspection—so that the party has a fair opportunity to challenge them. (12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11). (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011.)

Rule 903. Subscribing Witness’s Testimony A subscribing witness’s testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 1001 FEDERAL RULES OF EVIDENCE 26

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS Rule 1001. Definitions That Apply to This Article In this article: (a) A ‘‘writing’’ consists of letters, words, numbers, or their equivalent set down in any form. (b) A ‘‘recording’’ consists of letters, words, numbers, or their equivalent recorded in any manner. (c) A ‘‘photograph’’ means a photographic image or its equivalent stored in any form. (d) An ‘‘original’’ of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, ‘‘original’’ means any print- out—or other output readable by sight—if it accurately reflects the information. An ‘‘original’’ of a photograph includes the negative or a print from it. (e) A ‘‘duplicate’’ means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 1002. Requirement of the Original An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 1003. Admissibility of Duplicates A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 1004. Admissibility of Other Evidence of Content An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if: (a) all the originals are lost or destroyed, and not by the proponent acting in bad faith; (b) an original cannot be obtained by any available judicial process; (c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or (d) the writing, recording, or photograph is not closely related to a controlling issue. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.) 27 FEDERAL RULES OF EVIDENCE Rule 1101

Rule 1005. Copies of Public Records to Prove Content The proponent may use a copy to prove the content of an official record—or of a document that was recorded or filed in a public office as authorized by law—if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 1006. Summaries to Prove Content The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 1007. Testimony or Statement of a Party to Prove Content The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original. (As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 1008. Functions of the Court and Jury Ordinarily, the court determines whether the proponent has ful- filled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines—in accordance with Rule 104(b)—any issue about whether: (a) an asserted writing, recording, or photograph ever existed; (b) another one produced at the trial or hearing is the original; or (c) other evidence of content accurately reflects the content. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.)

ARTICLE XI. MISCELLANEOUS RULES Rule 1101. Applicability of the Rules (a) TO COURTS AND JUDGES. These rules apply to proceedings before: • United States district courts; • United States bankruptcy and magistrate judges; • United States courts of appeals; • the United States Court of Federal Claims; and • the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands. Rule 1102 FEDERAL RULES OF EVIDENCE 28

(b) TO CASES AND PROCEEDINGS. These rules apply in: • civil cases and proceedings, including bankruptcy, admi- ralty, and maritime cases; • criminal cases and proceedings; and • contempt proceedings, except those in which the court may act summarily. (c) RULES ON PRIVILEGE. The rules on privilege apply to all stages of a case or proceeding. (d) EXCEPTIONS. These rules—except for those on privilege—do not apply to the following: (1) the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility; (2) grand-jury proceedings; and (3) miscellaneous proceedings such as: • extradition or rendition; • issuing an arrest warrant, criminal summons, or search warrant; • a preliminary examination in a criminal case; • sentencing; • granting or revoking probation or supervised release; and • considering whether to release on bail or otherwise. (e) OTHER STATUTES AND RULES. A federal statute or a rule prescribed by the Supreme Court may provide for admitting or excluding evidence independently from these rules. (As amended Pub. L. 94–149, § 1(14), Dec. 12, 1975, 89 Stat. 806; Pub. L. 95–598, title II, §§ 251, 252, Nov. 6, 1978, 92 Stat. 2673, eff. Oct. 1, 1979; Pub. L. 97–164, title I, § 142, Apr. 2, 1982, 96 Stat. 45, eff. Oct. 1, 1982; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Pub. L. 100–690, title VII, § 7075(c), Nov. 18, 1988, 102 Stat. 4405; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 1102. Amendments These rules may be amended as provided in 28 U.S.C. § 2072. (As amended Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 26, 2011, eff. Dec. 1, 2011.) Rule 1103. Title These rules may be cited as the Federal Rules of Evidence. (As amended Apr. 26, 2011, eff. Dec. 1, 2011.) Æ Drew v. U.S., 331 F.2d 85 (1964) 118 U.S.App.D.C. 11

331 F.2d 85 United States Court of Appeals District of Columbia Circuit.

Nathan L. DREW, Appellant, v. UNITED STATES of America, Appellee.

No. 17611. | Argued June 18, 1963. | Decided Feb. 13, 1964.

The defendant was convicted of robbery and of attempted robbery. The United States District Court for the District of Columbia, John J. Sirica, J., rendered judgment, and the defendant appealed. The court of Appeals, McGowan, Circuit Judge, held that there was prejudice in the joinder of the crimes and separate trials should have been granted.

Reversed and remanded.

Attorneys and Law Firms

*87 **13 Mr. Harold Leventhal, Washington, D.C. (appointed by this court), for appellant.

Mr. Robert A. Levetown, Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty., Frank Q. Nebeker and Barry Sidman, Asst. U.S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and WASHINGTON and MCGOWAN, Circuit judges.

Opinion

McGOWAN, Circuit Judge.

This is an appeal from a conviction in the District Court on one count of robbery and one count of attempted robbery (22 D.C.Code § 2901 and 2902). Appellant moved, both before and at the commencement of trial, to compel separate trials of the two charges; and, after verdict, he moved for a new trial because of prejudice asserted to have occurred in, and by reason of, the joint trial. The failure to grant this relief is said on this appeal to be a source of reversible error. 1 [1] [2] Rule 8(a) of the Federal Rules of Criminal Procedure, set forth in the margin, 2 provides for permissible joinder of offenses in certain specified cases. Rule 14 provides:

‘If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.' 3

Thus, even though the joinder is permissible under Rule 8(a), if the defendant makes a timely motion under Rule 14 and shows prejudice, the court should either order an election by the Government or grant separate trials. 4 Here the joinder in the indictment under Rule 8(a) was permissible since the two crimes are similar in nature. Having in fact been tried together over the timely protest of appellant before, during, and after the trial, our inquiry now is as to whether the trial record indicates sufficient possibility of prejudice by reason of such joinder for trial as to require reversal. We believe that it does.

*88 **14 I [3] [4] The justification for a liberal rule on joinder of offenses appears to be the economy of a single trial. The argument against joinder is that the defendant may be prejudiced for one or more of the following reasons: (1) he may become embarrassed

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Drew v. U.S., 331 F.2d 85 (1964) 118 U.S.App.D.C. 11 or confounded in presenting separate defenses; (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find. A less tangible, but perhaps equally persuasive, element of prejudice may reside in a latent feeling of hostility engendered by the charging of several crimes as distinct from only one. Thus, in any given case the court must weigh prejudice to the defendant caused by the joinder against the obviously important considerations of economy and expedition in judicial administration.

This question has been considered many times by the federal courts, the state courts, and the courts of England. 5 In Queen v. King, (1897) 1 Q.B. 214, 216, Hawkins, J., said:

‘* * * I pause here to express my decided opinion that it is a scandal that an accused person should be put to answer such an array of counts containing, as these do, several distinct charges. Though not illegal, it is hardly fair to put a man upon his trial on such an indictment, for it is almost impossible that he should not be grievously prejudiced as regards each one of the charges by the evidence which is being given up on the others.’

In Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894), the Supreme Court addressed itself to this problem in the course of holding that a defendant charged in an indictment with four counts involving the murder of two persons on the same day, at the same place, and with the same kind of instrument, was not prejudiced by the joinder, inasmuch as the proof of each crime would have been relevant in a separate trial of the other. The Court, 151 U.S. at pages 403-404, 14 S.Ct. at page 412, 38 L.Ed. 208, said:

‘While recognizing as fundamental the principle that the court t must not permit the defendant to be embarrassed in his defense by a multiplicity of charges embraced in one indictment * * *, and while conceding that regularly or usually an indictment should not include more than one felony, the authorities concur in holding that a joinder in one indictment, * * * of different felonies, at least of the same class or grade, and subject to the same punishment * * * does not, in every case, by reason alone of such joinder, make it the duty of the court, upon motion of the accused, to compel the prosecutor to elect upon what one of the charges he will go to trial. * * * If it be discovered at any time during a trial that the substantial rights of the accused may be prejudiced by a submission to the same jury of more than one distinct charge of felony among two or more of the same class, the court * * * can compel an election by the prosecutor. * * *’

In McElroy v. United States, 164 U.S. 76, at 79-80, 17 S.Ct. 31, at 32, 41 L.Ed. 355 (1896), the Court said:

‘* * * in our opinion, they (the indictments) were not for two or more acts or transactions of the same class of crimes or offenses which might be properly joined, because they were substantive offenses, separate and distinct, complete in themselves and independent of each other, committed at different times and not provable by the same evidence. In cases of felony, the multiplication *89 **15 of distinct charges has been considered so objectionable as tending to confound the accused in his defense, or to prejudice him as to his challenges, in the matter of being held out to be habitually criminal, in the distraction of the attention of the jury, or otherwise, that it is the settled rule in England and in many of our States, to confine the indictment to one distinct offense or restrict the evidence to one transaction. * * * We do not think the statute 5A authorizes the joinder of distinct felonies, not provable by the same evidence and in no sense resulting from the same series of acts.’ (Emphasis added.)

Our own court, in Kidwell v. United States, 38 App.D.C. 566, at 570 (1912), said:

‘It is doubtful whether separate and distinct felonies, involving different parties, not arising out of the same transaction or dependent upon the same proof, should ever be consolidated. But it should not be permitted where the crimes charged are of such a nature that the jury might regard one as corroborative of the other, when, in fact, no corroboration exists.’

Considering our disposition of the present case, we may put aside the question of whether appellant was embarrassed or confounded in presenting his defenses 6 and turn to the question of whether he was prejudiced by the possibility that the jury used the evidence of the one crime to convict of the other or cumulated the evidence to find guilt under both charges.

II [5] It is a principle of long standing in our law that evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged. 7 Since the likelihood that juries will make such an improper inference is high, 8 courts presume prejudice *90 **16 and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose. 9 The same dangers appear to exist when two crimes are joined for trial, and the same principles of prophylaxis are applicable.

[6] Evidence of other crimes is admissible when relevant to (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial. 10 When the evidence is relevant and important to one of these five issues, it is generally conceded that the prejudicial effect may be outweighed by the probative value.

[7] [8] [9] If, then, under the rules relating to other crimes, the evidence of each of the crimes on trial would be admissible in a separate trial for the other, the possibility of ‘criminal propensity’ prejudice would be in no way enlarged by the fact of joinder. When, for example, the two crimes arose out of a continuing transaction or the same set of events, the evidence would be independently admissible in separate trials. Similarly, if the facts surrounding the two or more crimes on trial show that there is a reasonable probability that the same person committed both crimes due to the concurrence of unusual and distinctive facts relating to the manner in which the crimes were committed, 11 the evidence of one would be admissible in the trial of the other to prove identity. In such cases the prejudice that might result from the jury's hearing the evidence of the other crime in a joint trial would be no different from that possible in separate trials. 12

*91 **17 III [10] The federal courts, including our own, have, however, found no prejudicial effect from joinder when the evidence of each crime is simple and distinct, even though such evidence might not have been admissible in separate trials under the rules just discussed. 13

This rests upon the assumption that, with a proper charge, the jury can easily keep such evidence separate in their deliberations and, therefore, the danger of the jury's cumulating the evidence is substantially reduced. In the leading case of United States v. Lotsch, 102 F.2d 35 (2d Cir.), cert. denied, 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1500 (1939), Judge Learned Hand said (102 F.2d at p. 36):

‘There is indeed always a danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused's guilt, the sum of it will convince them as to all. This possibility violates the doctrine that only direct evidence of the transaction charged will ordinarily be accepted, and that the accused is not to be convicted because of his criminal disposition. Yet in the ordinary affairs of life such a disposition is a convincing factor, and its exclusion is rather because the issue is practically unmanageable than because it is not rationally relevant. When the accused's conduct on several separate occasions can properly be examined in detail, the objection disappears, and the only consideration is whether the trial as a whole may not become too confused for the jury. * * * Here we can see no prejudice from joining the three charges: the evidence as to each was short and simple; there was no reasonable ground for thinking that the jury could not keep separate what was relevant to each. The joinder was therefore proper * * *.’

Judge Hand recognizes the possibility, of course, that the jury may misuse the evidence, no matter how simple and separable; his position is merely that the possibility is somewhat reduced. However, the possibility of the jury's becoming hostile or inferring

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Drew v. U.S., 331 F.2d 85 (1964) 118 U.S.App.D.C. 11 guilt from belief as to criminal disposition is just as substantial. For this reason great care must be exercised to protect the defendant from this possibility when joinder is tolerated under this theory. 14 [11] In summary, then, even where the evidence would not have been admissible in separate trials, if, from the nature *92 **18 of the crimes charged, it appears that the prosecutor might be able to present the evidence in such a manner that the accused is not confounded in his defense and the jury will be able to treat the evidence relevant to each charge separately and distinctly, the trial judge need not order severance or election at the commencement of the trial. If, however, it appears at any later stage in the trial that the defendant will be embarrassed in making his defense or that there is a possibility that the jury will become or has become confused, then, upon proper motion, the trial judge should order severance.

IV [12] Turning now to the case at hand, a detailed exposition of the facts is necessary. The robbery, committed at a neighborhood store belonging to High's Dairy Products Corp., occurred on July 27, 1962. The sales clerk testified that a Negro male, 15 wearing sunglasses, 16 entered the store. After a short delay the clerk approached the customer and asked if she could help him. He replied: ‘This is a holdup; I want your money, all of it.’ When the witness hesitated, he said: ‘Get it,’ and pulled a gun part of the way out of his pocket. She gave him the money, and he proceeded to leave the store as another customer entered.

The attempted robbery occurred at a different High's neighborhood store on August 13, 1962 (some two and one-half weeks after the robbery). The sales clerk testified as follows: While she was alone in the store a Negro male entered the store dressed in a coat, cap, and sunglasses. 17 When she asked to help him, he asked for a bag of peanuts. She asked whether he wanted the five or ten cent size, and he replied ‘five.’ He then said: ‘Give me all the money,’ and she replied: ‘If you want it, come and get it.’ He repeated himself several times, and each time she repeated her statement. Finally he said: ‘You are not going to give me that money?’ and she replied negatively. At that point a customer entered the store, and appellant left hastily. The clerk testified that she was not threatened in any way. The police apprehended appellant in the vicinity of the store some twenty-five minutes later and returned to the store where the sales clerk identified him as the person who had attempted to rob her.

These facts do not show such a close similarity in the manner of committing the crimes as would make them admissible in separate trials. Viewing the record in its best light, the essential similarity that appears is the nature of the offense, the fact that both offenses were committed against High stores, and the fact that the offender in both instances was a Negro wearing sunglasses. We do not think that these similarities in the manner in which the offenses were committed are sufficient to support a finding of reasonable probability that the two offenses were committed by the same person, from which the jury could be asked to infer that the person was the appellant. 18 This conclusion is buttressed by other factors. In the robbery, the assailant, at the first sign of non-compliance, threatened the clerk with a gun. In the attempted robbery, there was no such threat of violence; in fact, the dragon seems to have been a most reluctant one indeed. This circumstance could raise a significant doubt as to whether appellant was involved in both crimes. A fundamental difference between *93 **19 two persons contemplating crimes of this character would be the degree to which each was prepared to use force to achieve his objective. Thus it is that the testimony about the use of the pistol in the one case, and not in the other, takes on enhanced significance. Moreover, neighborhood stores of the High's variety are particularly vulnerable to this kind of crime. They are usually staffed with only one or two female clerks, and are natural targets for both professional and non-professional bandits. These factors render less significant, for these purposes, the fact that both crimes were committed against High's stores, that they occurred on a summer afternoon when no customers were in the store, and that the intruder wore sunglasses. These circumstances all fit into an obvious tactical pattern which would suggest itself to almost anyone disposed to commit a depredation of this sort.

Nor did the two offenses arise out of the same transaction, series of transactions, or continuing state of affairs so that the evidence could have come in under the fourth exception stated above. In short, we cannot find absence of prejudice on the ground that the evidence would have been admissible in separate trials. 19

This is not the end of the matter, however. We must still determine whether this case falls within the ‘simple and distinct’ test as formulated in the Dunaway case, supra Note 14. As pointed out above, the very essence of this rule is that the evidence be such that the jury is unlikely to be confused by it or misuse it. It is not mere conjecture to say that the jury may have been confused in this case. A perusal of the record shows that witnesses' responses at times indicated confusion as to which crime counsel were referring to in their questions; the two crimes were repeatedly referred to as of the same order; and the prosecutor in his summation not unnaturally lumped the two together on occasion in his discussion of the evidence. 20 These lapses do not appear to have been purposeful, but lack of improper motivation *94 **20 does not lessen their impact on the jury. If separate crimes are to be tried together— and we are not to be understood as intimating any conclusion that this can never, as a practical matter, be successfully undertaken— both court and counsel must recognize that they are assuming a difficult task the performance of which calls for a vigilant precision in speech and action far beyond that required in the ordinary trial. The confusion here was probably the result of the superficial similarity of the two crimes and the way in which they were committed. 21 On this record, we cannot say that the jury probably was not confused or probably did not misuse the evidence, as Judge Hand was able to hold in Lotsch.

For these reasons we find that there was prejudice in the joinder and the court below should have granted separate trials. The conviction is reversed and the case is remanded.

It is so ordered.

Parallel Citations

118 U.S.App.D.C. 11

Footnotes 1 We do not find it necessary to consider the error alleged in points two and three of appellant's brief. 2 Rule 8(a) reads as follows: ‘Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.’ 3 Rules 8(a) and 14 are, for present purposes, similar to former § 557 of Title 18 U.S.Code (Rev.Stat. § 1024 (1875)), which governed joinder before promulgation of the Rules. For that reason, we consider cases decided under § 557 relevant to our determination. See Dunaway v. United States, 92 U.S.App.D.C. 299, 300 n. 5, 205 F.2d 23, 24 n. 5 (1953). 4 This proposition seems to us to have been clearly articulated in the following: Dunaway v. United States, 92 U.S.App.D.C. 299, 300, 205 F.2d 23, 24 (1953); Peckham v. United States, 93 U.S.App.D.C. 136, 140, 210 F.2d 693, 697-98 (1953); Chambers v. United States, 112 U.S.App.D.C. 240, 301 F.2d 564 (1962). 5 See Comment, 37 COLUM.L.REV. 1027 (1937). 5A The statute referred to is Rev.Stat. § 1024 (1875). See footnote 3 supra. 6 The appellant contends that he was confounded in his defense in that he desired to take the stand and testify as to the robbery, but did not want to testify as to the attempted robbery. Whether this is the kind of embarrassment with which the rule is concerned, we need not presently consider. See Dunaway v. United States, supra. 7 See 1 WIGMORE, EVIDENCE §§ 192-94 (3d ed. 1940); MCCORMICK, EVIDENCE 157; 1 UNDERHILL, CRIMINAL EVIDENCE §§ 205-12 (5th ed. 1956); UNIFORM RULE OF EVIDENCE 55; People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L.R.A. 193 (1901). Perhaps the leading authority in this jurisdiction is the concurring opinion of Judge Stephens in Martin v. United States, 75 U.S.App.D.C. 399, 401, 127 F.2d 865, 867 (1942). See also Fairbanks v. United States, 96 U.S.App.D.C. 345, 226 F.2d 251 (1955); Pyle v. United States, 81 U.S.App.D.C. 209, 156 F.2d 852 (1946); Bracey v. United States, 79 U.S.App.D.C. 23, 142 F.2d 85, cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589 (1944); cf. Hansford v. United States, 112 U.S.App.D.C. 359, 303 F.2d 219 (1962). In Boyer v. United States, 76 U.S.App.D.C. 397, 132 F.2d 12 (1942), reversing the conviction, this court said: ‘No doubt the alleged fact that a man committed a crime on another occasion tends to show a disposition to commit similar crimes. But when the prior crime has no other relevance than that, it is inadmissible. Its tendency to create hostility, surprise, and confusion

of issues is thought to outweigh its probative value. The law seeks ‘a convenient balance between the necessity of obtaining proof and the danger of unfair prejudice.‘‘’”' Admissibility of other crimes evidence for purposes other than proof of disposition is treated below. 8 Underhill, in discussing the admissibility of evidence of other crimes, states that ‘The large majority of persons of average intelligence are untrained in logical methods of thinking, and are therefore prone to draw illogical and incorrect inferences, and conclusions without adequate foundation. From such persons jurors are selected. They will very naturally believe that a person is guilty of the crime with which he is charged if it is proved to their satisfaction that he has committed a similar offense, or any offense of an equally heinous character. And it cannot be said with truth that this tendency is wholly without reason or justification, as every person can bear testimony from his or her experience that a man who will commit one crime is very liable subsequently to commit another of the same description.’ 1 UNDERHILL, CRIMINAL EVIDENCE § 205 (5th ed. 1956).Wigmore says: ‘The natural and inevitable tendency of the tribunal— whether judge or jury— is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge. * * * These reasons of auxiliary policy * * *, directed to prevent the risks of reaching verdicts through insufficient evidence, have operated to exclude that which is in itself relevant.’ 1 WIGMORE, EVIDENCE § 194 (3d ed. 1940). 9 See Martin v. United States, supra (concurring opinion); Boyer v. United States, supra; Whiteman v. State, 119 Ohio St. 285, 164 N.E. 51, 63 A.L.R. 595 (1928); 1 WIGMORE, EVIDENCE § 194 (3d ed. 1940); MCCORMICK, EVIDENCE § 157; 1 UNDERHILL, CRIMINAL EVIDENCE § 205 (5th ed. 1956). 10 These are variously stated by the different authorities and this list is not necessarily all-inclusive. These are, however, the major exceptions. See 2 WIGMORE, EVIDENCE §§ 300-371 (3d ed. 1940) and cases and authorities cited in footnote 9 supra. Additionally, in certain situations, evidence of prior convictions may be utilized for purposes of impeachment. 11 McCormick states that ‘the device used must be so unusual and distinctive as to be like a signature.’ MCCORMICK, EVIDENCE § 157. See also Martin v. United States, supra. 12 That the admissibility of the other crimes evidence in separate trials is a highly significant factor in determining whether joinder is prejudicial is made clear by an examination of many cases affirming a refusal of the trial judge to require severance or an election. See, e.g., Nestlerode v. United States, 74 App.D.C. 276, 122 F.2d 56 (1941); McNeil v. United States, 66 App.D.C. 199, 85 F.2d 698 (1936); Lee v. United States, 37 App.D.C. 442 (1911); United States v. Morabette, 119 F.2d 986 (7th Cir. 1941). In each case the court indicated that evidence of one of the crimes would have been admissible in a separate prosecution of the other. 13 United States v. Lotsch, 102 F.2d 35 (2d Cir.), cert. denied, 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1500 (1939); Langford v. United States, 106 U.S.App.D.C. 21, 268 F.2d 896 (1959); Dunaway v. United States, supra; Maurer v. United States, 95 U.S.App.D.C. 389, 222 F.2d 414 (1955); United States v. Liss, 137 F.2d 995 (2d Cir.), cert. denied, 320 U.S. 773, 64 S.Ct. 78, 88 L.Ed. 462 (1943). 14 In Dunaway v. United States, supra, 205 F.2d at pp. 26-27, we stated the rule as follows: ‘This leaves only the question whether reversal is required because, in the language of Kidwell v. United States, supra, ‘the crimes charged are of such a nature that the jury might regard one as corroborative of the other, when, in fact, no corroboration exists.’ The evidence of the prosecution in support of each of the finger print cases was not lengthy. It was simple. It was unlikely to cause confusion. The evidence as to each charge was readily referable to the crime with respect to which it was introduced. * * * It is unlikely the verdicts of the jury in any of the cases could have turned upon evidence applicable to another. While we are not ready to subscribe to the views expressed in United States v. Lotsch, in contrast with those set forth in Kidwell v. United States, the latter should not be construed to require reversal where the evidence is so separable and distinct with respect to each crime, and so uninvolved, and the offenses are of such nature, that the likelihood of the jury having considered evidence of one as corroborative of the other is insubstantial.' 15 In a lineup seventeen days later, and again at trial, this witness identified appellant as the offender. 16 In the Government's brief the appellant is referred to as having been dressed in a hat and light overcoat. However, the testimony to which the Government refers us on this point concerns appellant's dress at the time of the lineup. There is nothing in the record to show that he was so dressed at the time of the robbery. 17 She identified appellant as the offender some thirty minutes after the offense and again at trial. 18 See United States v. Magee, 7 Cir., 261 F.2d 609 (1958). 19 Compare Boyd v. United States, 142 U.S. 450 at 458, 12 S.Ct. 292 at 295, 35 L.Ed. 1077 (1892); Martin v. United States, supra (concurring opinion); Bracey v. United States, supra; Payne v. United States, 111 U.S.App.D.C. 94, 294 F.2d 723, cert. denied, 368 U.S. 883, 82 S.Ct. 131, 7 L.Ed.2d 83 (1961); United States v. Magee, supra; Boyer v. United States, supra. 20 A few examples will illustrate the point.

‘Q. (by Government counsel) Now, can you tell the ladies and gentlemen of the jury and His Honor what this conversation was, what was said? A. (by Detective Rogers) Well, this particular conversation, we asked him if he had did this robbery in the attempt, and he said he did, but there would be no need for us to write it down as when he got to Court he would deny it. ‘Q. Did you ask him about both the robbery on July 27th and the attempt on August 13th? A. That is right. ‘Q. Was his denial— was the statement made with reference to both of them? A. Both, both the attempt and the robbery.’ ‘Q. (by Government counsel) Now who else was in the store at that time? A. (by Officer Olds) To the best of my knowledge, my partner, Private Young, and Mrs. Ross (the complaining witness). * * * Well, the best I can remember, I believe there was somebody working there that day, she was in the back when all this happened, and I believe she came out, I am not sure. * * * I might be mixed up with the other High's store, I am not sure.’ In closing argument, the prosecutor said: ‘We hear nothing more of the defendant Drew until August 13th. We do know that Miss Waley quit High's because it was too dangerous. But on August—and whether she quit before or after August 13th is irrelevant, but on August 13th about 5:45 Mrs. Hughes, seated in the courtroom, is working alone in a different High's store, at 5119 Grant Street, and in walks the defendant, and she identified him, and he says: Give me all your money, and I think my recollection is that at this time, as well as the time on July 27th, when he was wearing sunglasses for the robbery, he said, give me all your money. ‘This Mrs. Hughes, however, does not react as did Miss Waley. She said: If you want it, you have to come and get it. And he doesn't display any gun.’ And: ‘At this point the defendant denied the offense, and he has given a false name, not even his given name, Nathan Drew, and he is advised that he is charged with the robbery, (rather) the attempted robbery, which has just taken place minutes before. * * * ‘Now, also, of course, you heard the witnesses who identified the man who robbed them, and attempted to rob them, here in court. ‘Well, she identifies him, and he is charged. What does he say? He says: I did it. And that is not unusual that he should say that. He has been identified, and has been arrested fifteen minutes, not even that much, some minutes after the robbery, (attempted robbery) and he immediately thereafter, he is identified as the fellow that pulled the job on July 27th. * * * ‘The case, I think, developed that there are clearcut identifications by people, who are residents of the community, who have absolutely no reason to say something which they do not mean to say, and are not sincere about, or which is not true, and this is not just one random identification, but these are clearcut studied identifications, of eye witness identifications of that man, by people who have had a clear opportunity to see him, and who are firm in their position that this is the man. * * * ‘Their identification is clear and undisputed, and we can rest the case on that line, but we don't have to, because there is a confession. ‘Now, there is an issue in this case, as in most cases, as to whether any statement made by the defendant was voluntary. There is nothing that was produced to you, testimony before you, to the effect that the statement was not voluntarily made. It was brief, abbreviated, and you might even say it was short, but we have a confession. ‘No, I don't want to be presumptuous because it is the Government's burden to prove a case beyond a reasonable doubt, but in a case where there are two crimes, where there are several witnesses who identify the defendant clearly—’ (Referring to the identification testimony as a whole could have been confusing because the identification evidence connected with the robbery was significantly weaker than that connected with the attempted robbery.) And: ‘I do not think that you may, based on her (alibi witness for defendant) testimony, and based upon the impossible conflict between it and all the witnesses for the Government, you will find this inherently incredible.’ (Emphasis added) 21 The Government strenuously argues that the two crimes were sufficiently similar to come within the ‘identity’ exception to the ‘other crimes' rule. However, once that argument has been rejected, the ‘similarity’ point cuts the other way. Every suggestion at the trial that the two crimes were closely parallel increases the liklihood that the jury may become confused or misuse the evidence. The more similar the crime, the more careful the trial court and Government counsel must be to keep the evidence separated.

376 A.2d 827 District of Columbia Court of Appeals.

John DYAS, a/k/a John L. Dyas, Appellant, v. UNITED STATES, Appellee.

No. 9845. | Argued Dec. 7, 1976. | Decided July 25, 1977. | Rehearing Denied En Banc, Sept. 7, 1977.

Defendant was convicted before the Superior Court, District of Columbia, W. Byron Sorrell, Trial Judge, of armed robbery and possession of a prohibited weapon, and he appealed. The Court of Appeals, Kern, J., held that: (1) evidence sufficiently established that complainant had an independent source of identification based on his observation of defendant during the robbery; (2) finding that only one photographic array was shown to complainant was not clearly erroneous; (3) exclusion of psychology professor's proferred testimony was not an abuse of discretion; (4) trial judge's alleged factual expressions and other outward manifestations of disbelief of a defense witness was not shown to have prejudiced defendant; (5) detective testimony that modus operandi was “where we keep pictures of men that have committed different types of crimes * * * like rape, robbery, so on” did not require new trial on ground that it was evidence of another crime committed by defendant, and (6) assistant United States attorney's notes of his interview with complainant were not a “statement” or a “substantially verbatim recital of an oral statement” within meaning of Jencks Act.

Affirmed.

Attorneys and Law Firms

*828 Michael B. Waitzkin, Public Defender Service, Washington, D. C., for appellant.

Frederick H. Weisberg, Public Defender Service, Washington, D. C., also entered an appearance for appellant.

Andrea L. Harnett, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and William J. Hardy, Jr., Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KERN, GALLAGHER and YEAGLEY, Associate Judges.

Opinion

KERN, Associate Judge:

A jury convicted appellant of armed robbery, D.C.Code 1973, ss 22-2901, - 3202, and possession of a prohibited weapon, *829 D.C.Code 1973, s 22-3214(b). Appellant contends now that the judgment of conviction and his sentence of ten to thirty years' imprisonment must be set aside because (1) the police procedure resulting in the complaining witness' identification of him was so deficient as to violate due process, and (2) various errors by the trial judge and the prosecutor during trial were so prejudicial as to require a new trial.

The complainant, Mr. Schools, testified that while he was pumping fuel oil from his delivery truck 1 parked in an alley behind 18th Street and Park Road, N.W., around 4 p. m. on March 31, 1974, appellant suddenly appeared and demanded at gunpoint all the cash he was carrying. Mr. Schools gave him $110 and appellant then ran down the alley and disappeared. Police officers arrived several minutes later and received a detailed description of the robber from Mr. Schools including the fact that the man had been wearing a gold earring.

Several days after the robbery, a Detective Mack, who was in charge of this particular robbery investigation, showed Mr. Schools an array of nine photographs. Mr. Schools selected the photograph of appellant who was the only person depicted in the array wearing an earring. On April 14th, Mr. Schools identified appellant in a lineup and subsequently identified him in court during the trial. Appellant now challenges this identification procedure which he claims was tainted by Mr. Schools' initial viewing of a suggestive photo array that resulted in a “very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).

The defense prior to the trial sought unsuccessfully to bar both the in-court and the lineup identification of appellant by Mr. Schools. At the pretrial suppression hearing Mr. Schools and the two detectives assigned to the case, Klepfel and Mack, testified at some length concerning the identification process followed in this case. The trial court did order suppressed as evidence Mr. Schools' identification of appellant's “earring photograph” because the court concluded the array had been unduly suggestive (Record at 107). 2 However, the court found that Mr. Schools had an independent source of identification as an eyewitness based on his clear observation of appellant during the robbery (Record at 106) and therefore concluded that Schools' subsequent identifications of appellant at the lineup and in court were not tainted by his viewing of the impermissibly suggestive photographic array (Record at 107-08, 124).

Appellant now attacks this conclusion by the court, arguing that the lineup and in-court identifications by Schools did not rest upon what he had observed at the scene, but rather on the suggestive photo array he had viewed after the crime and before the lineup. The issue now is whether the trial court erred in its conclusion that Mr. Schools had an independent source of identification, thereby allowing his lineup identification into evidence and permitting him to identify appellant at trial. [1] The Supreme Court in United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963), set forth the following test to be used under these particular circumstances: (W)hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinquishable to be purged by the primary taint. (Maguire, Evidence of Guilt 221 (1959). (Emphasis added.)

*830 The government must come forward with clear and convincing evidence that there is a independent source of identification based on the “totality of the circumstances” before the court can allow either subsequent lineup or in-court identification by the witness. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); United States v. Wade, supra, 388 U.S. at 240, 87 S.Ct. 1926; United States v. Gambrill, 146 U.S.App.D.C. 72, 77, 449 F.2d 1148, 1153 (1971).

[2] The Supreme Court has suggested the following factors to be considered by a court in determining whether identification testimony is admissible after there has been an unnecessarily suggestive identification of the accused: (R)eliability is the linchpin in determining the admissibility of identification testimony . . . . The factors to be considered . . . include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. (Manson v. Brathwaite, supra, 432 U.S. at ——, 97 S.Ct. at 2253, citing Neil v. Biggers, supra, 409 U.S. at 199-200, 93 S.Ct. 375.)

Applying these factors in this case, we are persuaded that the trial court did not err in admitting the lineup and in-court identifications of appellant. Mr. Schools testified (Record at 57, 67, 69, 71-2) that it was a clear day and he had no impediments to his observation of appellant during the two to three minutes they were confronting each other at a distance of three feet. 3 Mr. Schools gave a detailed and essentially accurate description of appellant at the scene of the crime. The record does reflect

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Dyas v. U. S., 376 A.2d 827 (1977) a discrepancy between the witness' initial description of appellant's height to police officers at the scene (Record at 311), and appellant's actual appearance at trial. The discrepancy, however, was explained adequately by Mr. Schools at trial when he testified that at the time of the offense, appellant was wearing platform shoes. 4 We note that less than two weeks lapsed between the crime and the lineup which was conducted in a proper procedural manner. Mr. Schools did not hesitate in his identification of appellant and the trial court found that at no time did Mr. Schools either identify another person as the perpetrator of the crime or fail to identify appellant. Neil v. Biggers, supra, 409 U.S. at 199-200, 93 S.Ct. 375. We are persuaded that the government met its burden of showing by clear and convincing evidence that an independent source of identification by the eyewitness existed. We conclude that these “indicators” of reliability are “(not) outweighed by the corrupting effect of the suggestive (photo array).” Manson v. Brathwaite, supra, 432 U.S. at ——, 97 S.Ct. at 2253.

[3] Appellant argued to the trial court that improper police procedure prevented him from presenting to the court at the suppression hearing significant evidence on the issue of independent source of identification. This argument rests entirely on testimony at the suppression hearing by complainant that he was shown three photographic arrays by the police (Record at 73-9). The first viewing, according to him, occurred on April 5, 1974, six days after the robbery and contained the suggestive photograph *831 of appellant wearing a gold earring. He testified that a second array was shown to him by plainclothes police officers at a gas station some days later, before the lineup, and he was unable to select anyone in that array of photographs. (Record at 85.) Mr. Schools testified that a third array was shown to him after the lineup and although he was not sure where the viewing occurred, he selected the picture of a man whom he thought was appellant wearing a “corn row” hair style. (Supplemental Record I at 33-4.) The government was unable to account for and produce either the second or third arrays at trial. (Record at 127.) Detective Mack testified that he showed Mr. Schools only one array (Supplemental Record I at 40) and that he did not know of any other police officer who might have shown an array to Mr. Schools. The trial court concluded, upon hearing all the evidence, that the only array shown to Mr. Schools (Record at 131) was the one he had suppressed as evidence. Under the circumstances the trial court is best equipped to assess the credibility of the witnesses and its finding that the detective did not show other arrays to Mr. Schools nor could he locate an officer who might have shown the arrays, is not clearly erroneous and will not be disturbed on appeal. 5 United States v. Gambrill, supra; Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969).

We turn now to the improprieties asserted by appellant to have occurred at trial. First, appellant argues the trial court deprived him of his constitutional right to present his defense by erroneously refusing to permit the jury to hear testimony from a psychology professor who was proffered as an expert witness on eyewitness identification. The trial court so ruled after testimony by the witness (Supplemental Record II at 31) before the trial that “my testimony only would go up to (the) point of saying that eye-witness (sic ) identification is not as simple as it looks, and not as simple as it is assumed to be in public conception” and “the point of the scientist is to point out that there are enormous complications in the process, that people are not aware of.” (Supplemental Record II at 32.) The witness further testified out of the jury's presence that “scientific literature” supports the conclusion that one under stress does not make as good an observation as one not under stress, and that within hours after a criminal episode the ability to accurately remember details begins to rapidly decline.“ (Supplemental Record II at 20.) Moreover, the witness testified that once a person publicly announces an opinion he will be motivated to maintain it despite the existence of subsequent, contrary evidence (Supplemental Record II at 25-26), and that the suggestions from a person in authority can have a considerable effect on the identification process (Supplemental Record II at 26-7; emphasis added.) [4] The federal circuit court here has held in Jenkins v. United States, 113 U.S.App.D.C. 300, 306, 307 F.2d 637, 643 (1962), that expert testimony is admissible if it is “likely to aid the trier in the search for truth.” See 7 Wigmore on Evidence s 1923 (3d ed., 1940). The admission of expert testimony is committed to the broad discretion of the trial court and a ruling either admitting or excluding such evidence will not be disturbed unless “manifestly erroneous.” Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962).

*832 [5] McCormick on Evidence, s 13 at 29-31 (E. Cleary, 2d ed. 1972), sets forth the following subject matter and testimonial qualifications governing the admissibility of expert testimony: (1) the subject matter “must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman (emphasis added)”; (2) “the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Dyas v. U. S., 376 A.2d 827 (1977) witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth (emphasis added)”; and (3) expert testimony is inadmissible if “the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.” We are persuaded that the subject matter of the proffered testimony is not beyond the ken of the average layman nor would such testimony aid the trier in a search for the truth thus we conclude the trial judge did not abuse his discretion in excluding this testimony. Fennekohl v. United States, D.C.App., 354 A.2d 238 (1976).

In United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir. 1973), the federal court of appeals for the Ninth Circuit held that expert testimony on the unreliability of eyewitness identifications in stressful situations was inadmissible because counsel through effective cross-examination would be able to present to the jury “any inconsistencies or deficiencies in the eyewitness testimony.” The court placed primary emphasis on the “responsibility of counsel during cross-examination to inquire into the witness' opportunity for observation, his capacity for observation, his attention and interest and his distraction or division of attention.” Id. Thus the proffered testimony of the expert would not aid the jury in evaluating an eyewitness' identification simply because “the jury was ‘superbly equipped’ to evaluate the impact of stress . . . on the perception of the identification witness.” Id., the court quoting from United States v. DeSisto, 329 F.2d 929, 934 (2d Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964).

Implicit in the holding of Amaral was that the subject matter of the proffered testimony of the expert, which was similar to that evidence offered here, was not beyond the ken of the average layman. Moreover, the expert's conclusion on the reliability of the eyewitness identification would not aid the jury in evaluating a witness' testimony because the jury would be able to assess the witness' credibility based on the “inconsistencies and deficiencies” brought out on cross-examination.

We conclude that the trial counsel had an adequate opportunity to fully explore Mr. Schools' perception and recollection of the incident and his ability to identify appellant and therefore the trial court did not abuse its discretion by rejecting the proffered testimony. Jenkins v. United States, 113 U.S.App.D.C. at 306, 307 F.2d at 643. See United States v. Brown, 501 F.2d 146, 150-51 (9th Cir. 1974), rev'd on other grounds sub nom. United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). People v. Lawson, 551 P.2d 206, 208-09 (Colo.App.1976). [6] [7] The next error alleged to have been committed by the court was to indicate to the jury by facial expressions and other outward manifestations its disbelief of a defense witness during her testimony to the jury. The witness was a defense investigator who testified that she had stationed herself at a main intersection in Georgetown one afternoon and observed twelve males pass during a 90-minute period of time who were wearing earrings (Record at 235-43). Preliminarily, we have considerable doubt as to the probative value of her testimony and some hesitation whether it should have been admitted into evidence. Turning to appellant's argument we note that defense counsel made an objection to the court (Record at 245-46), as required by Billeci v. United States, 87 U.S.App.D.C. 274, 282, 184 F.2d 394, 402 (1950), and the trial judge subsequently pointed out in denying the defense motion for mistrial (Record at 269-71) that he turned away from the jury so as to avoid revealing his facial reaction to the witness' testimony. The *833 prosecutor asserted (Record at 246) that the court had turned away from the jury during this time. We are unable to say on this record in light of the assertions by the trial participants that it has been established the trial judge's behavior in this instance was obvious to the jury and therefore improper or prejudicial to the defense case. 6

[8] Appellant's next contention is that the prosecutor introduced during the trial evidence of another crime committed by appellant so as now to require a reversal and retrial. Defense counsel initially cross-examined Mr. Schools about the suggestive photographic array (Record at 214-17). He also questioned Detective Klepfel concerning the photographic identification process (Record at 223-39). On redirect examination of the detective, the prosecutor elicited the meaning of the term modus operandi, a term the witness had used in his testimony on cross-examination; the detective explained it was the source of the photographs police used in presenting a photographic array for viewing by an eyewitness to a crime. The detective testified that modus operandi was “where we keep pictures of men that have committed different types of crimes . . . like rape, robbery, so on” (Record at 229). The court sustained an immediate objection by defense counsel (Record at 230) but denied a motion for mistrial made the next day.

Ultimately, the court in its final charge to the jury specifically instructed that the reference by the detective to modus operandi was not to be considered as an indication that appellant had any record of previous crimes. Given the relatively attenuated connection made by the detective in his testimony between appellant's photograph, as distinguished from the other photographs in the array, and the modus operandi file, and the court's curative instruction in its final charge, 7 we conclude the reference to the modus operandi file by the detective in his testimony was not so pointed as to cause prejudice and require a new trial for appellant.

Finally, appellant contends that the court erred in failing to order certain Jencks material 8 turned over to defense counsel for the purpose of enabling him to cross-examine the complaining witness. The court during trial conducted a hearing out of the jury's presence to determine the existence of Jencks' statements (Record at 174). Complainant testified he talked to three different persons about what had occurred during the robbery the officer responding to the scene, Detective Mack and the prosecutor and observed them writing as he talked. It was agreed, however, that the police officer who had first responded to the scene had written on the PD 251 Form “everything” complainant had reported there (Record at 185-86, 278-79) and this Form was made available to the defense. Detective Mack denied taking notes during his meeting with complainant (Record at 175) and the court credited the officer's testimony. [9] [10] The court then reviewed at the bench the notes taken by the Assistant United States Attorney of his interview with complainant (Record at 177-79). The court characterized them as “longhand short notes,” found them to be consistent *834 with the complainant's testimony and concluded that they were the prosecutor's work product and hence not producible. The Supreme Court has recently rejected the contention that there is an attorney's work product exception to the Jencks Act, Goldberg v. United States, 425 U.S. 94, 108, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976). Nevertheless, the trial court's ruling may be upheld because the attorney's notes of his interview with the complainant did not constitute a “statement” within the meaning of the Act. 9 The witness never asserted in his testimony (Record at 169) that he either approved or otherwise adopted what the prosecutor wrote down during the pretrial interview; 18 U.S.C. s 3500(e)(1) (1970). See Goldberg v. United States, supra at 110-11 n. 19, 96 S.Ct. 1338. Moreover, the notes taken by the prosecutor during his interview are “(t)ypical interview notes . . . selective (and) . . . episodic,” id. at 126, 96 S.Ct. at 1355 (Powell, J., concurring) and hence are not a “substantially verbatim recital of an oral statement,” 18 U.S.C. s 3500(e)(2). See March v. United States, D.C.App., 362 A.2d 691, 699 (1976). Accordingly, the court's refusal to invoke the Jencks Act as to these notes does not now require reversal.

Finding no error, appellant's convictions must be and hereby are

Affirmed.

Footnotes 1 The complainant was the owner of a fuel oil delivery company. 2 There are several transcripts in the record on appeal. “Record” refers to the transcript of portions of the suppression hearing held April 11, 1975, and the trial that occurred from April 14, 1975 to April 18, 1975. “Supplemental Record I” refers to other portions of the suppression hearing held before the trial judge on April 11, 1975, and “Supplemental Record II” refers to a hearing held before the trial judge on October 3, 1974. 3 We note that complainant was quite positive in asserting under oath that his identification of appellant rested on the latter's features, viz., “eyes, high cheekbones, keen face” and not on the earring photograph shown to him. (Supplemental Record I at 29-30.) See Neil v. Biggers, supra, 409 U.S. at 201, 93 S.Ct. 375; Conyers v. United States, D.C.App., 309 A.2d 309, 311-12 (1973). 4 Although appellant asserts there were several other discrepancies between Mr. Schools' initial description of the robber and his testimony before the grand jury and at trial, we deem them to be so minor as to be immaterial. 5 Appellant argues that it is particularly unfair that the trial court, as the finder of fact at the suppression hearing, rejected Mr. Schools' testimony that he had been shown a second ad third array, and then the government presented to the jury and relied on Mr. Schools' other testimony that he was able to identify appellant as the robber. There was an obvious conflict between the government's witnesses concerning the number of photo arrays shown complainant but defense counsel, apparently as a tactical decision, did not draw the jury's attention to this conflict in order to detract from the weight the jury might have given the complainant's other testimony

concerning lineup and in-court identification. Clemons v. United States, 133 U.S.App.D.C. 27, 34, 408 F.2d 1230, 1237 (1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). 6 Appellant complains generally that (1) the court at times criticized defense counsel in front of the jury and in various ways interfered with his presentation of the defense case, and (2) the prosecutor persisted with examination of witnesses despite defense objections sustained by the court and also made extraneous prejudicial remarks. Our review of the record reveals that the trial, as is frequently the case when the advocates are resourceful and energetic, generated at times more heat than light and prompted remarks on occasion that might better have been unsaid. Nevertheless, the atmosphere created was not such as to have denied appellant a fair trial or prejudiced the defense so as now to require a new trial. 7 We note that there was testimony presented in the defense case that appellant had in fact been in jail prior to the crime charged here (Record at 297). The trial court instructed the jury that appellant's prior incarceration referred to by the witness while responding to a question by defense counsel did not mean he had committed a criminal offense. (Record at 349-50.) 8 18 U.S.C. s 3500 (1970). 9 The Jencks Act, 18 U.S.C. s 3500(e) (1970) defines a statement as: (1) a written statement made by said witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of said oral statement; or (3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.

368 A.2d 561 District of Columbia Court of Appeals.

Irene J. NICHOLSON, Appellant, v. UNITED STATES, Appellee.

No. 10294. | Submitted Oct. 6, 1976. | Decided Jan. 10, 1977.

Defendant was convicted before the Superior Court of the District of Columbia, Joyce Hens Green, J., of second-degree murder and of assault with a deadly weapon, and she appealed. The Court of Appeals, Kelly, J., held that testimony that victim's last words were ‘Irene, Irene, Irene’ was admissible under spontaneous utterance exception to hearsay rule, under circumstances including the shock of the injury, its obvious severity and the fact that the victim spoke the words no more than 30 minutes after the stabbing and immediately before death; that court did not err in failing to include an intoxication instruction; and that evidence did not require that requested manslaughter instruction be given as a lesser included offense.

Judgments of conviction affirmed.

Attorneys and Law Firms

*562 Leonard J. Bonner, Oxon Hill, Md., appointed by the court, for appellant.

Earl J. Silbert, U.S. Atty., Washington, D.C., with whom John A. Terry, Harry R. Benner and Andrea L. Harnett, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.

Before KELLY, KERN and HARRIS, Associate Judges.

Opinion

KELLY, Associate Judge:

Appellant Nicholson was convicted by a jury of second-degree murder of the late Margaret Morant and of assault with a deadly weapon upon the complainant Dorothy Yancey. 1 She contends on appeal that the trial court erred in (1) failing, upon objection, to declare inadmissible an incriminating statement of the deceased made shortly before her death; (2) failing, sua sponte, to give an intoxication defense instruction where there was some testimony that she (appellant) had been drinking during the *563 course of the day and evening preceding the homicide; and (3) failing to give a requested manslaughter instruction. We find these contentions to be without merit and affirm.

The bizarre facts of this criminal episode are, briefly, that in September of 1974 Dorothy Yancey, the assault victim, was living at 1418 Fifth Street, N.W., with one Willie Sampson 2 and his cousin, Junior Peterson. Their neighbor was Harry Charles Brown. Appellant and her husband, Nick, lived in a rooming house next door to Brown.

On September 7, 1974, Margaret Morant, the murder victim, visited the Yancey household, as did appellant Nicholson. In a spirit of conviviality the assembled party ate, drank beer and vodka, played crads, and danced to records. At one point during the evening Sampson and Yancey quarreled when Sampson snatched Yancey's rent money from her. Morant became came upset at this argument and retired to an upstairs bedroom. Yancey, wielding a ‘grass blade’ (small scythe), chased Sampson out of the house. Appellant was in or near the front yard when Yancey returned to the house and the two proceeded to quarrel with one another about Sampson. The result of this disagreement was that appellant told Yancey that ‘somebody was going to take Willie

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Nicholson v. U. S., 368 A.2d 561 (1977) away from (her)’ and stabbed Yancey in the stomach with a weapon like an elongated penknife. 3 Although she was bleeding from the wound, Yancey chose not to go to the doctor. Instead, she remained at home for several hours watching television.

Close to two in the morning on September 8, appellant Nicholson returned to Yancey's house with her neighbor Brown. Brown testified that appellant had suggested going over to Yancey's in search of her husband. Sometime during this visit, Brown went upstairs to the bedroom to visit Morant. Shortly thereafter, appellant went home. Still later, Yancey went to a bootlegger to get more refreshments for Morant and Brown. On her way, she passed appellant who was then sitting on her own front porch. When, in about twenty minutes, Yancey returned to her house from her errand, she was told by Brown, ‘That damn fool (Irene) done stabbed Margaret.’ Brown, who had been drinking heavily, was trying to telephone for assistance. Morant was lying on Yancey's bed bleeding profusely from a chest wound and gasping for breath.

According to Brown, before the stabbing appellant and Morant were having a heated argument, the substance of which is not of record. Morant was in the upstairs bedroom with Brown; appellant was outside on the lawn. Three to four minutes after the argument had apparently subsided, the bedroom door burst open and appellant entered the room. She said something like, ‘Bitch, what did you say about my mother?’ Brown testified that he turned around and saw appellant holding two knives. He saw her stab Morant in the chest with one of them and heard her say, ‘Take that.’ Morant said nothing. She was ‘laying (sic) on the edge of the bed’ flat on her back at the time. There were no other weapons of any kind in the bedroom or in the possession of Morant.

Yancey was allowed to testify that when she found Morant upstairs, she picked her up in her arms and asked her, ‘What in the world happened?’ In response Morant repeated the name, ‘Irene, Irene, Irene.’ She then made a ‘little funny groan’ and slumped over, never to regain consciousness. Yancey thought she was dead.

The police put out a radio run on this incident at about 5:45 a.m. on September 8. Approximately one half hour earlier a patrolman had driven past the Yancey house *564 and observed appellant facing the building and shouting, but she quieted down when she saw the scout car. When police officers arrived in response to the radio run, they found Morant dead.

Medical testimony showed that Morant was severely intoxicated at the time of death and that she had died from a stab wound to the heart. It was estimated that she could have lived from three to thirty minutes after the wound was inflicted.

Appellant Nicholson was arrested in the early morning hours of September 8 in an apartment of a friend in the building in which she lived. A knife was found in the bed in the room in which she was found, but the government could not produce evidence proving it was the murder weapon. At the time of her arrest, appellant said to the police officer not only that ‘(she) didn't kill nobody’ but also ‘if you can't find the (expletive deleted) knife, you can't prove nothing.’ She admitted she was at Yancey's house at 2:00 a.m. and again at 5:25 a.m., and stated that she had left to get liquor for Yancey. She denied stabbing either Yancey or Morant.

[1] [2] Contrary to appellant's initial claim on appeal, Yacey's testimony that claim on appeal, Yancey's testimony that Morant's last words were, ‘Irene, Irene, exception known as the spontaneous utterance. 4 What constitutes a spontaneous utterance depends upon the facts peculiar to each case and such utterance is admitted in the exercise of sound judicial discretion which is not disturbed on appeal unless clearly erroneous. Beausoliel v. United States, 71 App.D.C. 111, 113-14, 107 F.2d 292, 294-95 (1939); Guthrie v. United States, 92 U.S.App.D.C. 361, 364, 207 F.2d 19, 23 (1953). The decisive factor in determining admissibility of declarations relating to a violent crime made by the victim shortly after its occurrence is that circumstances reasonably justify the conclusion that the remarks were not made under the impetus of reflection. United States v. Glenn, 154 U.S.App.D.C. 61, 64, 473 F.2d 191, 194 (1972). See also Bandoni v. United States, D.C.Mun.App., 171 A.2d 748 (1961); United States v. Barnes, 150 U.S.App.D.C. 319, 464 F.2d 828 (1972), cert. denied, 410 U.S. 986, 93 S.Ct. 1514, 36 L.Ed.2d 183 (1973); United States v. Kearney, 136 U.S.App.D.C. 328, 420 F.2d 170 (1969); Lampe v. United States, 97 U.S.App.D.C. 160, 229 F.2d 43 (1956), cert. denied, 359 U.S. 929, 79 S.Ct. 612, 3 L.Ed.2d 631 (1959).

[3] Elements necessary to justify the exception to the hearsay rule include (1) the presence of a serious occurrence which causes a state of nervous excitement or physical shock in the declarant, (2) a declaration made within a reasonably short period of time after the occurrence so as to assure that the declarant has not reflected upon his statement or premediated or constructed it, and (3) the presence of circumstances, which in their totality suggest spontaneity and sincerity of the remark. See generally McCormick, Evidence s 297 (2d ed. 1972).

[4] [5] [6] The circumstances of this case, including the shock of the injury, its obvious severity, and the fact that the victim spoke the words no more than thirty minutes after the stabbing and immediately before death, assure the strong likelihood of spontaneity and veracity in Morant's naming of her assailant. The fact that the appellant's name was given in response to an inquiry from Yancey does not prove lack of spontaneity. United States v. Glenn, supra; Guthrie v. United States, supra; Beausoliel v. United States, supra. And the fact that the autopsy disclosed a high percentage of alcohol in the bloodstream of the victim goes only to the weight of the testimony rather than to the admissibility of the declaration. United States v. Glenn, *565 supra; Guthrie v. United States, supra. Additionally, there is no merit in appellant's argument that Morant's repetition of appellant's name was ‘ambiguous' rather than accusatory. On the contrary, the natural and reasonable construction of Morant's remark was that she was naming the party who had stabbed her.

In sum, it was not reversible error to admit in evidence the disputed testimony as a spontaneous utterance for whatever weight the jury wished to ascribe to it.

II.

[7] [8] The trial court also did not err in failing to include an intoxication instruction in its charge to the jury. Such an instruction is appropriate only where there is an adequate evidentiary predicate in the record demonstrating ‘such a degree of complete drunkenness that a person is incapable of forming the necessary intent essential to the commission of the crime charged.’ Smith v. United States, D.C.App., 309 A.2d 58, 59 (1973). See also Williams v. United States, D.C.App., 331 A.2d 341 (1975). This record contains no such foundation, for appellant herself testified that she had had only a little beer and vodka to drink during the day and evening before the stabbing. Moreover, defense counsel failed to request such an instruction, or object to its omission from the court's charge.

III.

Finally, it was not error to deny appellant's requested manslaughter instruction, a lesser included offense to murder. As we have recently said: (A) defendant is entitled to a manslaughter instruction only where there is some evidence that might bring the crime within the grade of the lesser offense. See Pendergrast v. United States, D.C.App., 332 A.2d 919 (1975); United States v. Alexander, supra; United States v. Sinclair, 144 U.S.App.D.C. 13, 444 F.2d 888 (1971); United States v. Comer, 137 U.S.App.D.C. 214, 421 F.2d 1149 (1970). Our law recognizes as such evidence facts showing adequate provocation by the victim causing the defendant to strike out in the sudden heat of passion. See Alexander, supra at 391, 471 F.2d 943; Austin v. United States, 127 U.S.App.D.C. 180, 382 F.2d 129 (1967); Hart v. United States, 76 U.S.App.D.C. 193, 130 F.2d 456 (1942). (Morgan v. United States, D.C.App., 363 A.2d 999, 1002 (1976).)

[9] Appellant's claim of adequate provocation in this case consists of an unsupported assertion that she suspected the deceased of having in the past committed adultery with her husband. Even if this were the case, however, it would not amount to legal provocation since the allegation was not of a sudden discovery of adulterous conduct causing such passion as to culminate in an immediate homicide. Compare United States v. Comer, 137 U.S.App.D.C. 214, 421 F.2d 1149 (1970).

[10] [11] Counsel points to testimony in the record suggesting that Morant might have verbally insulted appellant during their argument to the point that appellant was so incensed as to kill her. However, a ‘trivial or slight provocation, entirely disproportionate to the violence of the retaliation, is not adequate provocation. Mere words standing alone, no matter how insulting, offensive, or abusive, are not adequate provocation.’ Hurt v. United States, D.C.App., 337 A.2d 215, 218 (1975); United States v. Alexander, 152 U.S.App.D.C. 371, 471 F.2d 923, cert. denied sub nom. Murdock v. United States, 409 U.S. 1044, 93 S.Ct. 541, 34 L.Ed.2d 494 (1972). Thus, appellant patently failed to produce evidence of provocation necessitating an instruction on the lesser included offense of manslaughter.

The judgments of conviction on appeal are

Affirmed.

Footnotes 1 D.C.Code 1973, ss 22-2403 and -502 respectively. Appellant had been charged with first-degree murder, D.C.Code 1973, s 22-2401. 2 Sampson is the brother of the deceased, Margaret Morant. 3 Yancey claimed she was not holding the grass cutter at the time of this assault. 4 We need not decide if this statement would also be admissible as a dying declaration.

548 A.2d 48 District of Columbia Court of Appeals.

Thomas S. GILES, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 86–178. | Submitted Feb. 3, 1988. | Decided Sept. 9, 1988.

In civil forfeiture action, the Superior Court, Paul F. McArdle, J., ordered forfeiture of $196 upon finding, after bench trial, that defendant and his brother had received money from sale of heroin and cocaine. Defendant appealed. The Court of Appeals, Ferren, J., held that: (1) defendant's failure to challenge through pretrial motion admissibility of chemist's certificate did not waive objection to admission of certificate in civil forfeiture proceeding; (2) for chemist's report of controlled substance to be admissible in civil forfeiture proceeding, custodian of report need not be someone other than chemist who performed analysis and prepared report; and (3) chemist could self-authenticate correctness of report and her own legal custody by signing statement under oath verified by signature and seal of notary public.

Affirmed.

Attorneys and Law Firms

*49 Julian L. Nugent, Jr. Washington, D.C., for appellant.

George Valentine, Asst. Corp. Counsel, with whom James R. Murphy, Acting Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel, and Lutz Alexander Prager, Asst. Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellee.

Jay B. Stephens, U.S. Atty. and Michael W. Farrell, Elizabeth Trosman, and Kenneth W. Cowgill, Asst. U.S. Attys., Washington, D.C., filed a brief on behalf of the U.S. as amicus curiae.

Before FERREN, TERRY and STEADMAN, Associate Judges.

Opinion

FERREN, Associate Judge:

In a civil forfeiture action pursuant to D.C. Code § 33–556 (1988 Repl.), Judge McArdle ordered appellant Giles to forfeit $196.00 upon finding, after a bench trial, that appellant and his brother had received the money from a sale of heroin and cocaine to a Mr. Holmes. Giles appeals, alleging that the trial court erred in admitting an improperly authenticated chemist's report of the Drug Enforcement Agency (DEA). We disagree and thus affirm.

On November 29, 1983, appellant Giles and his brother were arrested for distribution of heroin and cocaine. The police found $196.00 on appellant. The next day, the government “no-papered” the criminal charges. The District of Columbia, however, commenced forfeiture proceedings against appellant on the ground that the $196.00 was cash or currency used, or intended for use, in violation of the Uniform Controlled Substances Act. D.C. Code § 33–552(a)(6) (1988 Repl.).

On December 10, 1984, the government furnished Giles with a “Notice of Compliance” and attached to it a copy of a DEA chemist's report composed of two documents: (1) an official report setting forth results of the chemical analysis (DEA Form 7) of the substances seized from Holmes and (2) a notarized “Report of Chain of Custody and Certificate of Compliance Pursuant to 33 D.C. Code § 556” (report and certificate). The notarized report and certificate bearing the chemist's signature was on United States Department of Justice, Drug Enforcement Administration stationery showing a printed seal of the Department of Justice. In this report and certificate, the chemist certified that she was a chemist employed by DEA, described the chain of custody of controlled substances received by DEA for analysis, stated that the results of her analysis were accurately set forth in the DEA Form 7, and certified that she was “the officer having *50 legal custody of this report and of the attached official report of analysis, DEA Form 7.” The chemist signed the DEA Form 7 as the analyst, and the laboratory chief also signed to indicate that he had approved the report. In the Notice of Compliance, the government set forth the suggested procedures for subpoenaing the chemist at trial. Giles made no effort to subpoena the chemist.

On April 12, 1985, Giles submitted a pretrial memorandum to the court on the issue of admissibility of police reports as impeachment or substantive evidence. At the time of this memorandum, the trial was scheduled for April 24, 1985. Neither in this nor in any other pretrial submission did Giles raise the issue of the admissibility of the chemist's report.

Trial commenced on October 8, 1985. On the first day of trial, before the government called its first witness, Giles orally raised as a “preliminary comment or request” that he planned to object to the admission of the chemist's report “at an appropriate time.” The court responded that it would admit the report, noting “I've admitted that report I do not know how many times, maybe 150. ... I'm not going to reverse myself.” The government did not seek a continuance to correct any formal imperfection in the report. The trial lasted one day.

During trial, Giles objected to the government's introduction of the chemist's report, alleging that it was not authenticated in compliance with the requirements of D.C.Code § 33–556 (1988 Repl.), which provides:

In a proceeding for a violation of this chapter, the official report of chain of custody and of analysis of a controlled substance performed by a chemist charged with an official duty to perform such analysis, when attested to by that chemist and by the officer having legal custody of the report and accompanied by a certificate under seal that the officer has legal custody, shall be admissible in evidence as evidence of the facts stated therein and the results of that analysis. A copy of the certificate must be furnished upon demand by the defendant or his or her attorney in accordance with the rules of the Superior Court of the District of Columbia or, if no demand is made, no later than 5 days prior to trial. In the event that the defendant or his or her attorney subpoenas the chemist for examination, the subpoena shall be without fee or cost and the examination shall be as on cross-examination.

Giles argued, more specifically, that § 33–556 required the chemist and the legal custodian of the report to be different persons and that, in any event, a notarial seal cannot satisfy the statutory requirement for “a certificate under seal that the officer has legal custody.” The court overruled the objection and admitted the report.

In response to the trial court's October 11, 1985 order of forfeiture, Giles moved for a judgment notwithstanding the verdict on the ground that the court erred in overruling his objection and admitting the chemist's report. In support of the motion, Giles restated the two arguments presented at trial. After the government had filed an opposition and Giles had filed a reply, the trial court denied the motion. Giles appealed.

After briefs had been filed, this court sua sponte invited the United States to file a brief as amicus curiae and also invited all the parties to file supplementary briefs on two issues, including the question “[w]hether a defendant who receives a certificate pursuant to § 33–556 ‘no later than 5 days prior to trial’ waives any objection to admission of the certificate into evidence (subject to impeachment at trial) if the defendant has not challenged its admissibility through a pretrial motion.”

II.

[1] [2] Having reviewed the supplementary briefs, we conclude we cannot dispose of this case on the ground of waiver. Under § 33–556; the government is obliged to turn over to the defense a copy of the chemist's report on which it intends to rely “no later than five days prior to trial.” The obvious purpose of this provision is to give sufficient notice to the defendant to *51 decide whether to call the chemist for cross-examination (“the chemist would still appear if subpoenaed and would be subject to cross examination by the defense if called.” COMM. ON THE JUDICIARY, REPORT ON BILL 4–123, “the District of Columbia Uniform Controlled Substances Act of 1981” (Report on Bill 4–123), April 8, 1981, at 9). We do not believe, however, that the statute implies that the failure to object to the form of the certificate before trial—before it is offered into evidence—waives objection to admission of the certificate at trial. A defendant does not generally have an obligation to file a pretrial motion to exclude documentary material, discovered before trial, which the defense knows or believes the government will attempt to use but which may be inadmissible for some reason.

It is true, of course, that D.C. Code § 23–104(a)(2) (1981) requires a pretrial motion “to suppress evidence ... unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion.” See also Super.Ct.Crim.R. 12(b)(3) incorporating Super.Ct.Crim.R. 47–I. The threshold question, therefore, is the meaning of the word “suppress.” Historically, that term has meant exclusion of evidence on the ground that it was illegally obtained as a result, for example, of an unlawful search or of a coerced confession. District of Columbia v. McConnell, 464 A.2d 126, 128 (D.C.1983). Correspondingly, the government has been allowed to appeal pretrial suppression motions.

In contrast, for a long time government appeals were not allowed from pretrial rulings that may have excluded but did not “suppress” evidence. In 1971, however, Congress amended the applicable federal statute, as well as the District of Columbia Code, to permit a pretrial government appeal not only from an order that “suppresses” evidence but also from an order that “otherwise denies the prosecutor the use of evidence at trial” (provided the appeal is not taken for the purpose of delay and the particular evidence provides substantial proof of the pending charge). 18 U.S.C. § 3731 (1982); D.C.Code § 23–104(a) (1) (1981). Significantly, however, in liberalizing the government's right to appeal pretrial evidentiary rulings, Congress did not amend subsection (a)(2), which to this day mandates pretrial motions only “for return of seized property or to suppress evidence.” In other words, except for motions to suppress illegally obtained evidence, Congress has not mandated pretrial motions that would deny “the prosecutor the use of evidence at trial.”

In short, we find no statute or rule obligating a defendant to file a pretrial “non-suppression” motion to exclude a chemist's report delivered before trial under § 33–556, although clearly there is no provision that would prevent a defendant from doing so or preclude the court from granting the motion and allowing the government to take a pretrial appeal under § 23–104(a)(1). Absent such a requirement, however, there is no basis for concluding that the defendant here waived his right to object at trial to the form of the chemist's report under § 33–556. See United States v. Pent–R–Books, Inc., 538 F.2d 519, 528 (2d Cir.1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977).

If we were to require, by judicial fiat, the filing of a pretrial motion to exclude the chemist's report, absent a statute or rule requiring such a motion, that ruling obviously would pose serious notice problems if applied to a case such as this one. Indeed, if we were to cite Super.Ct.Crim.R. 12(b)(3) by analogy, which itself incorporates Super.Ct.Crim.R. 47–I, we would be invoking rules that do not prescribe time limits even remotely close to the limits that would have to apply in a case such as this; Rule 47–I(c) requires filing of the motion “within 10 days of arraignment or entry of appearance of counsel, whichever date is later, unless otherwise provided by the Court.” Probably at most, therefore, when the report is turned over no earlier than five days before trial, we could only require the filing of a motion to exclude the chemist's report sometime “before trial.” But, absent guidelines, that could literally be minutes before trial, which would not help the government very much. We therefore do *52 not believe, under the circumstances, that a defendant should be out of court for failing to do that. The government could always move for a brief continuance to get the chemist to court when the form of the report is challenged, so there is not likely to be

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Giles v. District of Columbia, 548 A.2d 48 (1988) prejudice. We might suggest that the Superior Court Rules Committee propose a cure for the problem by rule, if it wants to, but we should not find a “waiver” in this particular case.

III.

We turn to appellant's central argument, objecting to admissibility of the chemist's report under § 33–556 on two grounds: First, he says, for use of this statutory exception to the hearsay rule, the chemist may not have acted both as the reporter of chain of custody and of analysis of the controlled substance and as the custodian of that report. Second, he argues, even if the chemist may have the dual roles of reporter and custodian, the chemist herself may not self-authenticate both the correctness of the report and her own legal custody of it by signing a statement under oath verified by the signature and seal of a notary public; some other public officer in a position to certify custody of the report must perform that function under seal of the office. 1

[3] We perceive no basis for concluding that, for admissibility under § 33–556, the custodian of the report of a controlled substance must be someone other than the chemist who performed the analysis and prepared the report. In the first place, the statutory language does not address the issue. Its references to attestation by the “chemist” and by the “officer having legal custody of the report” are neutral as to whether the chemist and the officer may or may not be the same person; the language is compatible with either alternative. Second, the legislative intent underlying enactment of § 33–556—a local provision not part of the Uniform Controlled Substances Act—was to relieve chemists from having to testify. As this case indicates, chemists act as custodians of their own reports—hardly a radical notion. The record does not tell us whether this practice existed at the time § 33–556 was enacted, but we do know the Council perceived at the time that the chemist was responsible for personally verifying the chain of custody of the controlled substance up to the time the chemist's report was prepared, for the Committee Report noted that § 33–556 not only would relieve the chemist from “the necessity of appearing at trial to vouch for the results of the analysis” but also “from the necessity of appearing at trial to vouch personally for the chain of custody of substances received by the chemist from the time of receipt and the results of his or her analysis....” Report on Bill 4–123 at 8, 37. It would be unusual, therefore, if the Council had intended its new evidentiary rule, § 33–556, to preclude chemists from continuing to act as custodians after completion of their reports, so that unless a new custodial scheme were instituted, the chemist would still have to testify. There is simply no indication that the Council intended such a byproduct of its fundamental intention to reduce the need for chemists to testify.

Appellant's second issue is more problematic: whether under § 33–556 the chemist can self-authenticate her legal custody of the report by providing a “certificate under seal” of a notary public. D.C.Code § 33–556 (1988 Repl.). The statutory language does not say who is to provide “a certificate under seal that the officer has *53 legal custody.” Id. There is, however, a common law history underlying the admissibility of certain records into evidence without a testimonial foundation. That history should inform our analysis, since the plain language of the statute is not self-explanatory and the Council Report itself does not provide a clue.

For clarification, we assume for purposes of appeal that the government introduced into evidence the original, notarized chemist's report and certificate, with either the original or a true copy of the DEA Form 7 attached to it. That exhibit is missing from the record on appeal and has not been found by the government, but we believe the assumption about introduction of the original report and certificate is sound; presumably, the trial court would not have admitted a copy of a record into evidence without an original sealed certificate (absent a testimonial foundation). There is a wrinkle, however. The report and certificate itself refers to “the attached official report of analysis, DEA Form 7” and, again, to “the attached official report, DEA Form

7,” implying that the original DEA Form 7 was attached to the original report and certificate introduced into evidence. In its brief, however, the government says that the chemist tendered “a true and correct copy of the original report,” which we believe refers to the DEA Form 7. Accordingly, we must assume both possibilities and analyze the case as though we are dealing with an original chemist's report and certificate, coupled with either the original DEA Form 7 or a copy of it.

Turning to the merits, we begin by noting that the statute authorizes evidentiary use of either a certified original or copy of the DEA Form 7 and that the chemist's report, including the DEA Form 7, could have been admitted as a business record under Super.Ct.Civ.R. 43–I(a). See Howard v. United States, 473 A.2d 835, 837–40 (D.C.1984) (admissibility of certified copy of chemist's report under § 33–556 and Super.Ct.Crim.R. 57, which incorporates Super.Ct.Civ.R. 43–I). For such admissibility, however, the chemist or other custodian, or conceivably someone else in a position to know, would have had to provide a foundation by testifying at trial, perhaps in conjunction with other evidence, that the report was made in the regular course of business, that the regular course of business included preparation of such a report, and that the report was made within a reasonable time after the analysis of the controlled substance. See In re D.M.C., 503 A.2d 1280, 1282 (D.C.1986); see also Martini Hairdressers, Inc. v. Potomac Beauty Supply Co., Inc., 203 A.2d 200, 201 (D.C.1964) (discussing foundation required for admissibility of business record under 28 U.S.C. § 1732, the former “federal shopbook rule,” substantially incorporated into Super.Ct.Civ.R. 43–I(a)). A photographic copy of the original report, if copied in the regular course of business, would also be admissible “when satisfactorily identified” at trial, “whether the original is in existence or not.” Super.Ct.Civ.R. 43–I(b).

[4] The key to admissibility of a business record as an exception to the hearsay rule, therefore, is the foundation provided by the testimony of someone in a position to verify that “the records were maintained in the regular course of ... business operations.” Martini Hairdressers, Inc., 203 A.2d at 201. By the late 1970s, however, the large number of chemist's reports introduced as evidence in criminal trials had made the requirement of a testimonial foundation unduly burdensome. Accordingly, the Council of the District of Columbia enacted § 33–556 in order to “relieve the chemist responsible for analyzing controlled substances from the necessity of appearing at trial to vouch personally for the chain of custody of substances received by the chemist from the time of receipt and the results of his or her analysis when such results are not in dispute.” Report on Bill 4–123 at 37. Presently, therefore, a chemist's report may be admitted into evidence under § 33–556, without need for a testimonial foundation, if four requirements are met: (1) the “analysis of a controlled substance [must be] performed by a chemist charged with an official duty to perform such analysis,” (2) an “official report of chain of custody and of analysis of [the] *54 controlled substance” must be “attested to by that chemist,” (3) the chemist's official report must be “attested to ... by the officer having legal custody of the report,” and (4) the official report must be “accompanied by a certificate under seal that the officer has legal custody.”

In eliminating the testimonial foundation requirement here, the Council in effect extended admissibility of a chemist's report from the business records exception to a business records-type subset of the official records exception to the hearsay rule. Traditionally, on the assumption that an original public record should not continually be removed from the file, a copy of an “official record” or “public record” or “official statement” has been admissible into evidence, without supporting testimony, if the public officer having legal custody attests that the document is a copy of the record or statement and if an appropriate person certifies under seal that the attesting officer has legal custody. For example, Super.Ct.Civ.R. 44(a)(1) provides:

An official record kept within the United States, or any state, district, commonwealth, territory or insular possession thereof, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, or an entry therein, when admissible for any purpose, may be evidenced [1] by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and [2] accompanied by a certificate that such officer has the custody. The certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office.

(Emphasis added.) 2 Rule 44(a)(1) (which is identical to Fed.R.Civ.P. 44(a)(1) in effect elaborates the requirements of D.C.Code § 14–501 (1981):

An exemplification of a record under the hand of the keeper of the record, and the seal of the court or office where the record is made, is good and sufficient evidence to prove a record made or entered in any State, territory, commonwealth or possession of the United States. The certificate of the person purporting to be the keeper of the record, accompanied by the seal, is prima facie evidence of that fact. (Emphasis added.) Similarly, § 33–556, at issue here, provides for admissibility of the chemist's “report of chain of custody and of analysis ... when attested to by that chemist and by the officer having legal custody of the report and accompanied by a certificate under seal that the officer has legal custody....” (Emphasis added.) Therefore, whether a portion of the report is an original or a copy, a certificate under seal verifying legal custody must accompany the report. Unlike § 14–501 and Rule 44(a)(1), however, § 33– 556 is silent as to who may supply the “certificate under seal.” The question, then, in context, is whether (1) under § 33–556 the chemist/custodian may self-authenticate her report, or a copy of it, by appearing before a notary public or, instead, (2) § 33–556 incorporates the traditional requirement, reflected in § 14–501 and Rule 44(a)(1), that, unless the chemist herself has a seal of office, her custodianship must be certified by a higher officer of government who does have a seal and, by virtue of working in the district or office where the record is kept, knows her custodial *55 status. The answer must take into account the reasons why the certification of custodianship, under seal, has been required.

Traditionally in this country, in contrast with the common law of England, “the lawful custodian of a public record has, by implication of his office, and without express order, an authority to certify copies” of that record. 5 WIGMORE ON EVIDENCE § 1677, at 857 (Chadbourn ed. 1974) (citing United States v. Percheman, 32 U.S. 51, [84, 85], 86, 8 L.Ed. 604 (1833) (Marshall, C.J.); see MCCORMICK ON EVIDENCE § 320, at 897–898 (3d ed. 1984). This authority suggests two documents for which exception to the hearsay rule must be found if the public record is to be introduced into evidence: the public record itself and the certificate of the custodian's authority. See id.

As to the first—the “official written statement” or “public record” or “official report” itself—special trustworthiness is implied by “the declarant's official duty and the high probability that the duty to make an accurate report has been performed.” Id. § 315, at 889. For the chemist/custodian's report to be admissible as a “public record,” therefore, she must substantiate the chain of custody and her chemical analysis by attesting that the facts reported are within her personal knowledge and that she prepared the report under a duty to do so. See D.C.Code § 33–556; In re D.M.C., 503 A.2d at 1283–84. Her affidavit of December 5, 1984 covers those criteria.

We turn to the “certificate under seal that the officer has legal custody.” D.C.Code § 33–556. It obviously serves to evidence the authority and incumbency of the particular custodian, see id.; Super.Ct.Civ.R. 44(a)(1), as well as the genuineness of the custodian's signature. See 5 WIGMORE ON EVIDENCE § 1679, at 875. And, of course, the seal also serves to authenticate the certifying official's own authority and genuine signature. See 7 WIGMORE ON EVIDENCE, §§ 2166, 2167, at 806 (Chadbourn ed. 1978). Accordingly, a custodian herself could certify a record in her custody, without a separate certification of her custody by another department official, if she possessed an official seal. Absent that tool of self-authentication, however, a hearsay statement of a higher public official, in the form of a certificate under seal, has traditionally been required to verify the authority, incumbency, and signature of the custodian who lacked a seal. See Super.Ct.Civ.R. 44(a)(1).

The seal serves two functions. First, it implies a genuine signature—it stands in the way of a forgery—because someone who possesses the required seal presumably is a trustworthy official familiar with the custodian's signature. See 7 WIGMORE ON EVIDENCE §§ 2166, 2167, at 806; MCCORMICK ON EVIDENCE § 315, at 889. Second, the seal confirms the certifying official's authority to certify the custodian's authority and personal incumbency. Certification under seal by an official other than the custodian, therefore, has been deemed necessary on occasion, not because the custodian is not thought trustworthy

(indeed, she can certify the public record, see Percheman, 32 U.S. (7 Pet.) at 84–85), but because, without her own seal, there is no way to overcome the hearsay objections—authority, incumbency, signature—to the custodian's own signed certificate.

By the time of the 1966 amendments to the Federal Rules of Civil Procedure, the Committee on Federal Rules of the Ninth Circuit Judicial Conference had suggested eliminating from Rule 44(a)(1) “the requirement of a certificate that the attesting officer has custody of the record.” 36 F.R.D. 209, 230 (1964). Professor (later Judge) Kaplan, who chaired the Advisory Committee on Civil Rules, later wrote that “[t]here was something to be said for eliminating the requirement of a certificate for domestic records” and added that “perhaps the Advisory Committee on Rules of Evidence should recur to this point.” Kaplan, *56 Continuing Work of the Civil Committee: 1966 Amendments to the Federal Rules of Civil Procedure (II), 81 HARV.L.REV. 591, 611 n. 294 (1968). 3 Professors Wright and Miller agree that the separate certificate of custodianship requirement of Rule 44(a)(1) is a “needless formality.” 9 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2434, at 389 (1971).

Several federal courts of appeal, nonetheless, have excluded such documentary evidence for failure to comply with this separate certificate requirement, see e.g., Celanese Corp. of America v. Vandalia Warehouse Corp., 424 F.2d 1176, 1180 (7th Cir.1970); Chung Young Chew v. Boyd, 309 F.2d 857, 866 (9th Cir.1962); Mullican v. United States, 252 F.2d 398, 402 (5th Cir.1958); Van Cedarfield v. Laroche, 252 F.2d 817, 820–21 (1st Cir.1958). The only exception to strict application of the rule appears to be when the appellate court, in lieu of requiring a seal certifying custody, is in a position to take judicial notice of a public official's custody of a particular type of document. See Smith v. United States, 122 U.S.App.D.C. 300, 306, 353 F.2d 838, 844 (1965), cert. denied, 384 U.S. 974, 86 S.Ct. 1867, 16 L.Ed.2d 684 (1966) (Deputy Police Chief's custody of records of pistol licenses).

Before analyzing whether § 33–556 should be construed—as appellant contends—to require a DEA official, other than the chemist/custodian, to supply a certificate under seal as to legal custody, it will be useful to understand the implications. Such a statutory policy would be derived from the answer to this question: because the chemist/custodian lawfully could certify her own report and custodianship (without need for corroboration) if she had an official seal of her own, is there any reason to say that the chemist's own word is not good enough were she to proffer, instead of her own seal, the seal of a notary public, who may not know her status, rather than the department seal of a colleague who personally does know her status? If the answer is “yes,” the legislature would be saying, in effect: corroboration of official custodianship by a second department official is necessary for either of two reasons: (1) an authorized custodian who is not supplied with her own seal is the type of person who, though truthful enough to be trusted to certify public records, is not likely to be truthful enough to certify her own custodianship, even when signing under oath before a notary public, or (2) there is a real danger, despite the penalty for perjury, that someone will pretend to the notary to be a custodian and certify nonrecords or records not in her custody. The first possibility is absurd, and, at least with respect to chemist's reports, we believe the second possibility is highly unlikely. There may be types of records, for example a birth certificate, where the risks of an imposter as custodian are sufficiently high to require two signatures from the same department—the custodian and the higher official with a seal—in order to provide sufficient assurance of trustworthiness. But that concern is much less likely when a government chemist's report is at issue. It is difficult to imagine who would have an interest in pretending to be a custodian and falsifying such a report, under penalty of perjury, on behalf of the government. And it is even more difficult to imagine when it is known that the custodian happens to be the chemist, and thus the pretender would also have to falsify a report that supposedly she, herself, not only prepared but also, as in this case, had approved by the co-signature of her laboratory chief.

As an alternative to admissibility of public records certified in the traditional manner, the Federal Rules of Evidence provide for admissibility of “acknowledged documents,” namely those “accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.” Fed.R.Evid. 902(8). The Advisory Committee noted: “In virtually every state, acknowledged title documents are receivable in evidence without further proof.... If this authentication suffices for documents of the importance *57 of those affecting titles, logic scarcely permits denying this method when other kinds of documents are involved.” FEDERAL JUDICIAL PROCEDURE AND RULES, Rule 902, at 342 (1987 ed.). At least as to chemist's reports, we agree. There appears to be no greater risk of

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Giles v. District of Columbia, 548 A.2d 48 (1988) untrustworthiness from a chemist/custodian's self-authentication before a notary public than from authentication by the seal of a higher department official.

[5] Section 33–556 arguably incorporates the traditional requirement of a separate certificate under seal, signed by a higher public official, to evidence custodianship when the custodian herself does not have a seal. But, the statutory language —“accompanied by a certificate under seal that the officer has legal custody”—does not expressly say so. That language is sufficiently broad to encompass any certificate under seal that serves the traditional purpose of such a certificate. Absent plain language or legislative history that would dictate a particular interpretation, and mindful of our responsibility in such a situation to try to effectuate the legislative purpose in a way that avoids “absurd results” and “obvious injustice,” Peoples Drug Stores v. District of Columbia, 470 A.2d 751, 754 (D.C.1983) (en banc), we conclude that the better interpretation of § 33–556 would be an expansive one. We therefore hold that § 33–556 incorporates commonly-accepted authentication procedures involving a “seal,” such as Fed.R.Evid. 902(8) governing acknowledgments before notaries public. 4 The chemist/custodian's report and certificate complied with this requirement.

AFFIRMED.

Footnotes 1 D.C.Code § 33–556 (1987 Supp.) applies “[i]n a proceeding for a violation of this chapter,” meaning the Uniform Controlled Substances Act, D.C.Code §§ 33–501 to –567 (1988 Repl.). That Act establishes crimes, but it also includes provisions authorizing forfeitures, as in this case. Although it may be difficult to characterize a forfeiture proceeding under § 33–552 as an alleged “violation” of the chapter—of the Uniform Controlled Substances Act—it is certainly ancillary to such alleged violations. Thus, there is a strong implication that § 33–556 should be applicable to all proceedings under the Act (chapter 33), not just to criminal proceedings. None of the parties questions the applicability of § 33–556 to this case. 2 Super.Ct.Civ.R. 44(a)(1) is identical to Fed.R.Civ.P. 44(a)(1). The Federal Rules of Evidence also deal with authentication. “Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency,” for example, may be admitted “unless the sources of information or other circumstances indicate a lack of trustworthiness,” Fed.R.Evid. 803(8), provided the record is authenticated, for example, by the seal of the officer signing the document, Fed.R.Evid. 902(1), or by another officer who is in a position to certify that “the signer has the official capacity and that the signature is genuine,” Fed.R.Evid. 902(2). Similarly, a certified copy of a public record is admissible if certified in compliance, for example, with Fed.R.Evid. 902(1) or (2). 3 “The proposed [now adopted] Federal Rules of Evidence would dispense with the certificate if a public seal is on the document. Compare Rule 902(1) with Rule 902(2), 51 F.R.D. 452.” 9 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2434, at 389 n. 30 (1971). 4 Our interpretation of D.C.Code § 33–556 does not run afoul of D.C.Code § 14–501, quoted earlier, on exemplification of records accompanied by “the seal of the court or office where the record is made,” since D.C.Code § 14–507 (1981) provides that the chapter on documentary evidence, including § 14–501, “does not prevent the proof of records or other documents by any method authorized by other laws or rules of court.”

597 A.2d 892 District of Columbia Court of Appeals.

In re Tommie Lee MELTON, Appellant.

No. 85-1589. | Argued En Banc Feb. 6, 1991. | Decided Oct. 4, 1991.

Appeal was taken from order of the Superior Court, Samuel B. Block, J., entered in civil commitment proceeding. The Court of Appeals, 565 A.2d 635,reversed, and rehearing was granted, 581 A.2d 788. On rehearing, the Court of Appeals, Schwelb, J., held that: (1) practicing psychiatrists who had treated patient were qualified to give expert opinion as to whether patient was likely to injure himself and others in future due to his failure to take prescribed psychotropic medication, and (2) testimony of practicing psychiatrists concerning events leading up to patient's hospitalization, which they learned of through reports and observations of family members and records of patient's past hospitalizations, was admissible as information reasonably relied on by psychiatrists in forming opinion as to patient's future dangerousness.

Affirmed.

Ferren, J., filed dissenting opinion in which Mack, Senior Judge, joined.

Attorneys and Law Firms

*893 Harry J. Fulton, Public Defender Service, with whom James Klein, Public Defender Service, and Page Kennedy, Public Defender Service, were on the brief, for appellant.

Janet L. Maher, Asst. Corp. Counsel, with whom Frederick D. Cooke, Corp. Counsel at the time the original brief was filed, Charles L. Reischel, Deputy Corp. Counsel, and Ann O'Regan Keary, Deputy Corp. Counsel, were on the brief, for District of Columbia.

Jay B. Stephens, U.S. Atty., and John R. Fisher, John M. Facciola, *894 Colleen M. Kennedy, and Nancy R. Page, Asst. U.S. Attys., filed a brief, for U.S. as amicus curiae.

Before ROGERS, Chief Judge, and FERREN, TERRY, STEADMAN, SCHWELB, and WAGNER, Associate Judges, MACK, and BELSON, * Senior Judges.

ON REHEARING EN BANC

SCHWELB, Associate Judge:

This case presents interesting and vigorously contested issues which apparently arise with some frequency in civil commitment proceedings brought pursuant to the Ervin Act, D.C.Code §§ 21-501 to 21-592 (1989). Appellant Tommie Lee Melton is a 44-year-old man, diagnosed as a paranoid schizophrenic, who has frequently been hospitalized on account of his illness. On October 25, 1985, following a jury trial, Melton was found to be likely to injure himself or others 1 within the meaning of D.C.Code § 21-521 (1989). The trial judge committed Melton to the custody of Saint Elizabeth's Hospital (the hospital) for an indefinite period for outpatient treatment at the hospital's Spring Road Clinic.

On November 26, 1989, a divided panel of this court reversed the commitment order. In re Melton, 565 A.2d 635 (D.C.1989) (Melton I ). The division majority was of the opinion that the psychiatric witnesses called by the District were erroneously permitted to testify that Melton was likely to injure himself or others, in that their expertise with respect to predicting

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 In re Melton, 597 A.2d 892 (1991) dangerousness was said not to have been sufficiently established. The majority also held that the trial court had erroneously permitted these witnesses to testify regarding events of which they had learned from third parties or from hospital records, without first making the necessary finding that experts in the field reasonably and customarily rely on such materials. On November 7, 1990, we vacated the division opinion and ordered that the case be reheard en banc. In re Melton, 581 A.2d 788 (D.C.1990).

Distilled to its essence, the District's psychiatric evidence tended to show that when Melton was not adequately supervised, he often failed to report for the medication which was required by his condition. As a result, he was unable to care for himself, wallowed in filth, and placed his health in serious danger from diabetes, glaucoma, and alcoholism. Moreover, the psychiatrists concluded, substantially on the basis of information provided to them by others, that when Melton did not adhere to his regimen of medication, he constituted a danger to others, as demonstrated by punching his mother in the nose, threatening his sister with a screwdriver, and acting in an assaultive and disruptive manner.

In the context of this case, which was focused so heavily on Melton's deterioration when he failed to take his prescribed medication, we are satisfied that the trial judge correctly found the District's psychiatric witnesses to be qualified to testify with respect to whether Melton was likely to injure himself or others if he was left to his own devices and without medical supervision. Where, as here, the issue presented was Melton's dangerousness, the evidence on which the District's psychiatric witnesses relied, including statements by members of Melton's family and records of his past hospitalizations, was of a kind reasonably and customarily relied on by experts in the field. Although we have pronounced reservations regarding the efficacy of the trial judge's limiting instructions to the jury as to the purpose for which statements of third parties could properly be considered, we find no reversible error. Accordingly, we affirm the judgment.

THE FACTS

The procedural history of this case and the evidence presented at trial were discussed *895 in considerable detail in the opinion of the panel majority, as well as in the dissent. Melton I, supra, 565 A.2d at 635-41, 649-50. We refer the reader to those discussions, and recite here only the facts which we view as most important for the resolution of the issues before us.

The only witnesses at the trial were two psychiatrists who were qualified as experts in their field and who testified for the District of Columbia. The first, Dr. James Byrd, was the administrator of the ward at which Melton was placed after he was involuntarily hospitalized in this case. The second, Dr. Antoine Cornet, was a staff psychiatrist at the hospital's Spring Road Mental Health Clinic. Both witnesses related some facts which were within their personal knowledge, but each also relied in substantial measure on what he had learned from others and from the records of Melton's prior hospitalizations.

Both Dr. Byrd and Dr. Cornet testified that Melton was suffering from schizophrenia. Dr. Byrd stated that this was true “without a doubt,” that he was able to make the diagnosis on the basis of his personal observation, and that schizophrenia was the “remarkably consistent” diagnosis of all of the doctors who had treated Melton. He described schizophrenia as a “major psychiatric illness,” which causes the patient to suffer from delusions and from a distortion of reality, and which renders him unable to recognize his own disease. Dr. Byrd added that Melton's schizophrenia was paranoid in character, and that Melton had “delusional” feelings that others were out to harm him.

The circumstances leading up to the hospitalization that precipitated the present case were also described by both of the doctors. Several months before his rehospitalization, Melton had left the hospital against medical advice and had gone to Florida. 2 When he returned in July 1985, and proceeded to his mother's house, the mother made a number of calls to the hospital reporting

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 In re Melton, 597 A.2d 892 (1991) that he was behaving in a belligerent and disruptive manner, and she asked that something be done immediately. The mother reported, among other things, that Melton had punched her on the nose, and that she was afraid that he might harm her again.

Representatives of the hospital, including (eventually) Dr. Cornet, went to the mother's home and attempted to persuade Melton to come voluntarily to the hospital or to the clinic. Melton was belligerent and refused to come; his mother was visibly upset. The police were called, and an officer asked Melton to accompany him voluntarily. When Melton again refused to go, the officer brought him to the hospital in custody.

Melton's condition when he arrived at the hospital was not favorable. Dr. Byrd testified that Melton was “completely disheveled, extremely untidy, extremely dirty, having not bathed for weeks, urinating in his bedroom.” Dr. Cornet testified that Melton “was filthy and in very poor condition” and that “[h]is personal hygiene was terrible, so we took care of that.”

Nor were Melton's problems confined to grooming deficiencies. A diabetic, he had “excoriations” (bruises) on his skin, a condition which made Dr. Cornet “really concerned.” Dr. Cornet also discovered that Melton was suffering from glaucoma. Dr. Cornet testified that hospital staff members found a large bottle of pills at the home of Melton's mother. The bottle contained both Orinese, a diabetic medication, and Melleril, which had been prescribed for Melton's mental illness; “in other words, you had medication for mental condition plus medication for diabetes mixed together in one bottle.” Melton also apparently drank alcohol to excess, and the doctors were concerned that he would do so while taking his medication and warned him against doing so.

*896 Both Dr. Byrd and Dr. Cornet attributed Melton's threatening and assaultive behavior, as well as the poor condition in which he was found, to his failure to adhere to his treatment regimen. In particular, they alluded to his having missed injections of Prolixin, a medicine which had been prescribed for him and which had proved most beneficial. Dr. Byrd testified that “the reason [Melton] was placed on Prolixin is that it's possible to get Prolixin in an injectable form which will last for two weeks.” He explained that there had been a marked improvement in his patient while the latter was in the hospital, but

that [the improvement] was critically dependent upon Mr. Melton continuing to take his medication. And the changes that we see are changes which are quite helpful but they are in their own way fragile, in the sense that if he stops the medication he will rapidly decompensate.... [ 3 ] If he misses one or two injections, he will be right back to where he started from, which is psychotic and threatening and assaultive and very bizarre and delusional.

Dr. Cornet confirmed that if Melton did not continue to receive his medication, “he won't be able to comprehend what's going on with him and chances are he might get really sick again.”

Dr. Byrd testified that the program of medication which the hospital had devised would provide Melton with

the best chance of complying with his treatment, which he had a long history of not doing. He hadn't been able to follow his treatment for the past ten [to] fourteen years.

Dr. Cornet also expressed doubt that, without proper supervision, Melton would continue to report for medication on his own initiative, especially when he was drinking. He stated that “Melton is not composed enough to take proper care of himself and to look for medical care when there is a need for that.”

Not all of the testimony was unfavorable to Melton's cause. Dr. Byrd acknowledged that Melton was sometimes able to comply with his regimen on his own, and came in to the clinic when he felt that his mother was being “crabby.” Dr. Cornet stated that on the day that Melton allegedly punched his mother, a member of the hospital staff apparently found “nothing amiss.” Dr. Cornet also acknowledged that when Melton received his medication, his insight into his illness was good, and he understood the need for treatment. Dr. Byrd agreed, but described Melton's ability to seek help as “superficial,” because he had no “consistent” insight into his illness; the insight vanished when Melton was not receiving medication. In any event, in light of the importance

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 In re Melton, 597 A.2d 892 (1991) to Melton's mental health of his taking medication regularly and his record of unreliability unless adequately supervised, both psychiatrists testified that, if released, he would be likely to injure himself 4 or others.

THE PSYCHIATRIC TESTIMONY AS TO DANGEROUSNESS

[1] When the District proffered Dr. Byrd as an expert witness in the field of psychiatry, Melton's counsel objected on the grounds that the doctor's involvement in the case was “minimal” and that he had only “just finished” his training. The judge overruled the objection and found Dr. Byrd to be qualified to testify as an expert. Counsel for Melton interposed no objection to Dr. Cornet's qualifications, and does not contend on appeal that the trial judge abused his discretion (or, in Dr. Cornet's case, committed “plain error”) in holding that each of the witnesses was properly qualified as an expert.

After testifying that Melton was mentally ill, however, Dr. Byrd was asked to state his opinion whether, in light of the mental *897 illness, Melton would be likely to injure himself or others if he were not under the care of the hospital. Melton's counsel objected. Noting that “we've been through this before,” the judge overruled the objection, but allowed Melton's counsel to make a record at the bench. Going directly to the heart of the issue, the judge asked whether counsel was maintaining that “the doctor who made the examination [of] the records [and] the staff cannot say that if he will be released today that he will not take his medication or, in his opinion ..., would be likely to injure himself or others? Is that what you're saying?” Relying on a trial court opinion in another case, Melton's counsel responded that a physician had no “particular ability” to predict dangerousness. Insisting that “we have heard nothing about this doctor being able to predict the future,” and that “predicting the future, I would submit, is a very difficult thing,” counsel insisted that the government was obliged to qualify the witness further. The judge adhered to his original ruling, held that no further qualification was required, and permitted Dr. Byrd to answer the question.

Although no comparable objection was made with respect to Dr. Cornet's testimony, 5 Melton argues on appeal that the trial judge committed reversible error in permitting the two doctors to testify regarding Melton's alleged dangerousness to himself or others without a separate demonstration of their expertise on that subject. A majority of the panel which heard the original appeal upheld this contention. Melton I, supra, 565 A.2d at 647-49. Specifically, the panel was of the opinion that the trial judge abused his discretion by “refus[ing] to consider Melton's counsel's objection to the psychiatrists' qualifications to predict his clients' dangerousness.” Id. at 648.

The criteria for admitting expert testimony in this jurisdiction are set forth in the three-part test in Dyas v. United States, 376 A.2d 827 (D.C.1977), cert. denied, 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977), as follows:

(1) the subject matter ‘must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average [lay person]’; (2) ‘the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his [or her] opinion or inference will probably aid the trier in his [or her] search for truth’; and (3) expert testimony is inadmissible if ‘the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.’

376 A.2d at 832 (quoting EDWARD W. CLEARY, MCCORMICK ON EVIDENCE § 13, at 29-31 (2d ed. 1972)) (emphasis deleted). “The trial judge has wide latitude in the admission or exclusion of expert testimony, and his [ 6 ] decision with respect thereto should be sustained unless it is manifestly erroneous.” Coates v. United States, 558 A.2d 1148, 1152 (D.C.1989). The question whether an expert has been sufficiently qualified is likewise “recognized as a matter for the trial judge's discretion reviewable only for abuse. Reversals for abuse are rare.” E. CLEARY, MCCORMICK ON EVIDENCE § 13, at 34 (3d ed. 1984) (emphasis added and footnote deleted).

As Judge (later Chief Justice) Burger wrote for the court in Baerman v. Reisinger, 124 U.S.App.D.C. 180, 181, 363 F.2d 309, 310 (1966),

[i]t is settled law that [a] physician is not incompetent to testify as an expert merely because he is not a specialist in the particular field of which he speaks. The training and specialization of the witness goes to the weight rather than admissibility of the evidence, generally speaking.

(Citations and internal quotation marks deleted). Ordinarily, a specialist in a particular branch within a profession is not required. *898 See MCCORMICK, supra, § 13, at 34 & n. 11. Even an ordinary medical practitioner is, and should be, permitted to testify as to a patient's sanity. See 2 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 569, at 785-86 & n. 2 (James H. Chadbourn rev. ed. 1979); see Jenkins v. United States, 113 U.S.App.D.C. 300, 306-07, 307 F.2d 637, 643-44 (1962) (en banc). 7

Both Dr. Byrd and Dr. Cornet are practicing psychiatrists. Each stated that he was eligible for board certification. Each had previously testified as an expert before the Mental Health Commission, and Dr. Byrd had done so in court as well. As we show below, the prediction of dangerousness is reasonably related to the practice of psychiatry. Both witnesses were obviously more qualified with respect to this subject than an ordinary physician, and neither expressed any reservation about his ability to form an opinion regarding the question whether Melton was likely to injure himself or others.

In the present case, as we have noted, Melton's dangerousness to himself and others was alleged to stem from his failure, when not under the hospital's supervision, to take psychotropic medicine with the requisite regularity. The consequences of such failure are, in our view, so “ ‘distinctively related [lay person] to some science ... as to be beyond the ken of the average layman,’ ” Dyas, supra, 376 A.2d at 832 (citation and emphasis omitted). It defies common sense to suggest that a lay juror knows as much as a qualified psychiatrist does about what is likely to happen if a schizophrenic patient does not receive Prolixin shots. The doctors' testimony would therefore probably “assist the trier of fact to understand the evidence or to determine a fact in issue.” FED.R.EVID. 702. Accordingly, the psychiatric testimony in this case satisfied the first prong of Dyas.

The judge could likewise reasonably conclude that Dr. Byrd and Dr. Cornet had sufficient knowledge of the characteristics of Prolixin and of the potential consequences of Melton's not taking it, as well as sufficient familiarity with other matters related to Melton's condition, that their testimony could “ ‘probably aid the [lay jurors] in [their] search for truth,’ ” as required by the second prong of the Dyas test. 376 A.2d at 832 (emphasis and citation omitted). If the testimony of “the ordinary medical practitioner should be received on all matters as to which a regular medical training necessarily involves some general knowledge,” 2 WIGMORE, supra, § 569, at 785, then a fortiori, the judge did not abuse his discretion in permitting Dr. Byrd and Dr. Cornet to express expert opinions as to the probable consequences for Melton of not requiring him to report for medication. When an oncologist testifies that a malignancy, unless properly treated, is likely to metastasize and cause danger to the patient, he too is predicting the future. Nevertheless, such a cancer specialist need not demonstrate expertise with a crystal ball as well as in medicine in order to render his prognosis receivable in evidence. The same holds true for a psychiatrist.

In the final analysis, Melton's argument must therefore stand or fall on the notion that the present state of psychiatric knowledge does not permit the District's witnesses to express opinions on the question of Melton's dangerousness to himself or others, within the meaning of the third prong of Dyas, 376 A.2d at 832. We do not believe that this question can seriously be said to be in doubt. “ ‘[T]here is nothing inherently unattainable [even] about a [lay judicial officer's] prediction of future criminal conduct’ ” for purposes of preventive detention. United States v. Salerno, 481 U.S. 739, 751, 107 S.Ct. 2095, 2103, 95 L.Ed.2d 697 (1987) (quoting Schall v. Martin, *899 67 U.S. 253, 278, 104 S.Ct. 2403, 2417, 81 L.Ed.2d 207 (1984)). A trained psychiatrist must surely be qualified, a fortiori, to assess Melton's dangerousness to himself or others, especially where, as here, that assessment is based on the patient's need for medication and his failure in the past to take it with the requisite regularity. As the Supreme Court stated in Addington v. Texas, 441 U.S. 418, 429, 99 S.Ct. 1804, 1811, 60 L.Ed.2d 323 (1979),

[t]here may be factual issues to resolve in a commitment proceeding, but the factual aspects represent only the beginning of the inquiry. Whether the individual is mentally ill and dangerous to either himself

or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.

(Emphasis added to last nine words).

In Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), a capital sentencing case, the defendant argued, in conformity with the views of the American Psychiatric Association (APA), 8 that psychiatric testimony as to dangerousness is inherently unreliable and ought not to be admitted where a defendant's life is on the line. The issue was cast in constitutional terms, but the Supreme Court's response was sufficiently broad and emphatic to dispel any appreciable doubt as to how that Court would rule in this case:

The suggestion that no psychiatrist's testimony may be presented with respect to a defendant's future dangerousness is somewhat like asking us to disinvent the wheel. In the first place, it is contrary to our cases....

In the second place, the rules of evidence generally extant at the federal and state levels anticipate that relevant, unprivileged evidence should be admitted and its weight left to the factfinder, who would have the benefit of cross-examination and contrary evidence by the opposing party. Psychiatric testimony predicting dangerousness may be countered not only as erroneous in a particular case but also as generally so unreliable that it should be ignored. If the jury may make up its mind about future dangerousness unaided by psychiatric testimony, jurors should not be barred from hearing the views of the State's psychiatrists along with opposing views of the defendant's doctors.

Id. at 896, 898-99, 103 S.Ct. at 3396, 3397 (emphasis added). Melton seeks to distinguish Barefoot on the ground that it involved a constitutional contention, and that psychiatric testimony as to dangerousness should be excluded as a matter of the substantive District of Columbia law of evidence. Aside from the breadth of the Court's language in Barefoot and its allusion to applicable rules of evidence, however, the statutory law of this jurisdiction explicitly contemplates that such determinations will be made by psychiatrists. The administrator of a public hospital may detain a person for emergency observation if the psychiatrist on duty certifies that the person

has symptoms of a mental illness and, as a result thereof, is likely to injure himself or others unless he is immediately hospitalized.

D.C.Code § 21-522 (1989). The Mental Health Commission, which is made up of psychiatrists and psychologists, is required to determine, inter alia, whether a patient “is likely to injure himself or other persons if allowed to remain at liberty.” § 21-544. Two physicians, one of whom must be a specialist on nervous or mental disorders, are required to determine whether an allegedly mentally ill person found on certain federal reservations shall be hospitalized “for his own safety and welfare and for the preservation of the peace and good order.” § 21-902(b)(2). In proceedings to determine whether a person acquitted of an offense by reason of insanity should be released, psychiatric testimony may be submitted on the issue whether such person “has recovered his sanity” and “will not in *900 the reasonable future be dangerous to himself or others.” § 24-301(e)(1)-(2). 9

We therefore agree with the District that

to accept appellant's theory that psychiatrists cannot predict dangerousness, and therefore should not be permitted to testify on this issue, would nullify the entire legislative scheme for treatment of mentally ill persons in the District of Columbia.

The legislature has effectively decided that “ ‘the state of the pertinent art or scientific knowledge [permits] a reasonable opinion to be asserted ... by an expert,’ ” Dyas, supra, 376 A.2d at 832 (citation omitted), and we would be impermissibly intruding upon a legislative prerogative if we were to challenge that judgment.

III

THE PSYCHIATRISTS' RELIANCE ON OUT-OF-COURT STATEMENTS AND MATERIALS

A. General Considerations. [2] Early in his direct examination, Dr. Byrd was asked to describe the events which led up to Melton's hospitalization. Dr. Byrd concededly was not personally present when those events occurred, and Melton's counsel objected, characterizing the proposed testimony as hearsay. The following colloquy ensued:

THE COURT: Of course it's hearsay. Of course it's hearsay. It's an exception, however, Mr. Fulton [Melton's counsel]. Go ahead, Doctor.

MR. KELLY [Counsel for the District]: It certainly is, Your Honor.

THE COURT: Mr. Fulton, please be seated. Go ahead.

MR. FULTON: If I might, Your Honor, could we come to the bench?

THE COURT: Mr. Fulton, no. We won't get the case started. We'll never get started at the rate we're going. Go ahead, Mr. Kelly.

In conformity with this preemptive ruling, both psychiatrists were subsequently permitted to relate information which they received from Melton's mother-the alleged punch on the nose-or from hospital records which had not been introduced into evidence. The mother, who apparently left for Florida during the trial as a result of a death in the family, did not testify and was not subject to cross-examination. Melton contends that he was thus denied an important liberty interest on the basis of what he describes as hearsay evidence, that he was deprived of the opportunity to confront and cross-examine those persons who had first-hand knowledge of the facts, and that the trial judge's summary ruling on his objection led to the admission of the alleged hearsay without the judge having made certain preliminary findings said to be required by law.

We begin by noting that the testimony by Dr. Byrd and Dr. Cornet as to what *901 they learned from others was not admitted in order to prove the truth of the matter asserted. See MCCORMICK, supra, § 246, at 729. The trial judge specifically instructed the jury that any out-of-court statements by third parties which were reported in the experts' testimony were to be considered only “for the purpose of evaluating the reasonableness and correctness of the doctors' conclusions,” and not “to establish the truth of the matters asserted by [the declarants].” As the court explained in United States v. Williams, 447 F.2d 1285, 1290 (5th Cir.1971) (en banc), cert. denied, 405 U.S. 954, 92 S.Ct. 1168, 31 L.Ed.2d 231 (1972),

[a]n expert's opinion is derived not only from records and data, but from education and from a lifetime of experience. Thus, when the expert witness has consulted numerous sources, and uses that information, together with his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own right and not as hearsay in disguise.

(Emphasis added.)

The problem raised by Melton cannot, however, be avoided simply by calling the evidence expert testimony rather than hearsay. Labels cannot perform juridical alchemy. By resort to expert testimony, the District was able to bring to the jury's attention matters that could obviously prejudice Melton, including, e.g., reports that he had punched his mother, and that on an earlier occasion he had threatened his sister with a screwdriver. Melton was never able to cross-examine those who accused him of these antisocial acts. Such a procedure presents obvious problems of basic fairness. Courts are not blind to these concerns and have attempted to fashion rules which afford reasonable latitude to expert witnesses but simultaneously protect the rights of litigants against whom expert testimony has been offered. The tension between these competing interests is at the heart of this case.

B. Rule 703. [3] The admission or exclusion of expert testimony, as we have noted, is committed to the trial court's broad discretion. Coates, supra, 558 A.2d at 1152. That discretion is guided in the District of Columbia by the principles underlying Rule 703 of the Federal Rules of Evidence, which provides as follows:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to [the expert] at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

(Emphasis added). See STEFFEN W. GRAAE & BRIAN T. FITZPATRICK, THE LAW OF EVIDENCE IN THE DISTRICT OF COLUMBIA 7.20 (1989), quoted in L.C.D. v. District of Columbia ex rel T-A.H.D., 488 A.2d 918, 921 n. 8 (D.C.1985) ( “Rule 703 is an expression of the law as it has developed here”). According to the Advisory Committee's Note to Rule 703, “the rule is designed to broaden the basis for expert opinions beyond that current in many jurisdictions and to bring the judicial practice into line with the practice of the experts themselves when not in court.”

The critical inquiry, then, is whether the facts or data to which Dr. Byrd and Dr. Cornet alluded in reaching their conclusions in the present case were of a type on which experts in their profession reasonably rely. 10 As the court stated in Jenkins, supra, 113 U.S.App.D.C. at 304, 307 F.2d at 641, a case dealing with the admissibility of expert psychiatric testimony,

the better reasoned authorities admit opinion testimony based, in part, upon reports of others which are not in evidence but which the expert customarily relies upon in the practice of his profession.... ‘This court ... will not close *902 the doors of the courts to the light which is given by a diagnosis which all the rest of the world accepts and acts upon, even if the diagnosis is in part based upon facts which are not established by the sworn testimony in the case to be true.’ [ 11 ] The court declined to “ ‘shut its eyes to a source of information which is relied on by mankind generally in matters that involve the health and may involve the life of their families and of themselves....' ” Id. at 304, 307 F.2d at 641 (quoting Sundquist, supra note 11, 221 N.W. at 393); see also Reed v. United States, 584 A.2d 585, 591 (D.C.1990).

C. Psychiatric Expert Testimony. Consistently with these principles, this court has held that psychiatrists may offer opinions based on reports not in evidence if such reports are reasonably relied upon in the practice of their profession. Testimony similar to much of that at issue here has been held to be admissible. See In re Gahan, 531 A.2d 661, 666 n. 7 (D.C.1987) (“[t]he court, as factfinder, was entitled to learn the factors underlying Dr. Carter's opinion that Gahan was likely to inflict harm on himself by ceasing to eat”); Attorney Grievance Comm'n v. Nothstein, 300 Md. 667, 676-84, 480 A.2d 807, 812-16 (1984) (psychiatrist permitted to base his conclusion as to attorney's mental state on descriptions of attorney's behavior provided by the attorney's wife and by his partner).

In the present case, the inquiry for Dr. Byrd and Dr. Cornet was whether Melton, if left to his own devices without supervision by the hospital, would be likely to pose a danger to himself or to others. In light of the wide latitude afforded to trial judges in relation to the admission or exclusion of expert testimony, the precise issue on appeal is whether the trial judge abused his discretion in ruling-albeit implicitly and without appreciable articulation 12 -that in assessing Melton's dangerousness, a psychiatrist would reasonably rely on the reports and observations of family members and the records of Melton's past hospitalizations.

We do not find this issue to be an especially troublesome one. The Advisory Committee's Notes to Rule 703 recognize that

a physician in his [or her] own practice bases his [or her] diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions

from nurses, technicians and other doctors, hospital records, and X rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His [or her] validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes.

(Emphasis added). The conclusion that a competent psychiatrist charged with assessing dangerousness would obtain information from the patient's relatives, as well as from his hospital records, is also dictated by what Justice Frankfurter has described as “the saving grace of common sense.” 13 Where else would the doctor go for such information? Indeed, as the United States points out in its brief as amicus curiae, a psychiatrist could be roundly criticized within and without the profession for not interviewing family members; by ignoring information which the profession views as vital, the psychiatrist would, at least, undercut the reliability of his or her opinion. See, e.g., People v. Britz, 123 Ill.2d 446, 460-63, 124 Ill.Dec. 15, 22-23, 528 N.E.2d 703, 710-11 (1988), cert. denied, *903 489 U.S. 1044, 109 S.Ct. 1100, 103 L.Ed.2d 242 (1989). 14

This is not to say that everything a family member tells a psychiatrist is necessarily reliable or true. “[F]riends or relatives of an outpatient may seek his return to the institution because they feel uncomfortable in his presence or are dissatisfied with the progress he is making towards rehabilitation.” In re Richardson, 481 A.2d 473, 480 (D.C.1984). Psychiatrists are well aware that this may occur. See Bernard L. Diamond & David W. Louisell, The Psychiatrist as an Expert Witness: Some Ruminations and Speculations, 63 MICH.L.REV. 1335, 1353 (1965). Indeed, they consider valuable for purposes of diagnosis any or all information provided by patients or relatives, whether the information is true or false. See 4 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S EVIDENCE § 803(4)[01], at 803-150 (1990).

[4] [5] In any event, a properly qualified expert is assumed to have the necessary skill to evaluate any second-hand information and to give it only such probative force as the circumstances warrant. In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1223, 1245 (E.D.N.Y.1985) (Weinstein, J.), aff'd, 818 F.2d 187 (2d Cir.1987), cert. denied, 487 U.S. 1234, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988); see also State v. Schreuder, 726 P.2d 1215, 1223 (Utah 1986). 15 Accordingly, the court should accord an expert wide latitude in choosing the sources on which to base his or her opinions. See Soden v. Freightliner Corp., 714 F.2d 498, 505 (5th Cir.1983). But

the court may not abdicate its independent responsibilities to decide if the bases meet minimum standards of reliability as a condition of admissibility. See FED.R.EVID. 104(a). If the underlying data are so lacking in probative force and reliability that no reasonable expert could base an opinion on them, an opinion which rests entirely upon them must be excluded. FED.R.EVID. 401, 402. The jury will not be permitted to be misled by the glitter of an expert's accomplishments outside the courtroom. “Agent Orange,” supra, 611 F.Supp. at 1245. [6] Because Rule 703 was intended to bring judicial practice into line with the practice of experts when they are not in court, see Advisory Committee's note quoted supra at page 902, the judge may not substitute his or her judgment for the expert's as to what data are sufficiently reliable, provided that such reliance falls within the broad bounds of reasonableness. In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 277-79 (3d Cir.1983), rev'd on other grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also United States v. Hill, 655 F.2d 512, 514-16 (3d Cir.1981) (error to exclude psychiatric testimony as to criminal defendant's susceptibility to entrapment), cert. denied, 464 U.S. 1039, 104 S.Ct. 699, 79 L.Ed.2d 165 (1984). “The proper inquiry is not what the court deems reliable, but what experts in the relevant discipline [reasonably] deem it to be.” Japanese Elec. Prods., supra, 723 F.2d at 276 (bracketed word added).

[7] “The assumptions which form the basis for the expert's opinion, as well as the conclusions drawn therefrom, are subject to rigorous cross-examination.” Id. at 277. Juries are intelligent enough, in light of the availability of such cross-examination, to ignore what is unreliable or unhelpful. Id. at 279. 16 In most cases, therefore, *904 objections to the reliability of out-of-court

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 In re Melton, 597 A.2d 892 (1991) material relied upon by a psychiatrist will be treated as affecting only the weight, and not the admissibility, of the evidence. Bertolotti v. Dugger, 883 F.2d 1503, 1517 (11th Cir.1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3296, 111 L.Ed.2d 804 (1990).

D. The Test Proposed by the Panel Majority. In its discussion of how the judge should determine whether “minimum standards of reliability,” “Agent Orange,” supra, have been met, the majority of the panel adopted the following test:

a trial judge will properly admit expert opinion based on hearsay testimony under Rule 703 when (1) the judge is persuaded that experts in the field commonly rely on the particular type of hearsay information in addressing the specific type of problem raised in the case before the court, and (2) the judge concludes that the information (if not admissible for its truth under an exception to the hearsay rule) is of a type for which the underlying reliability of the data can be sufficiently explored through cross-examination of the testifying expert. Of course, a trial judge [3] should exclude an expert opinion, including the facts and data upon which it relies (even if of a type reasonably relied on most of the time), if admission in evidence would create a substantial danger of undue prejudice or would mislead the jury.

Melton I, 565 A.2d at 645 (emphasis added; citations and internal quotations marks omitted). The panel majority then strongly implied that in a great many cases, if not in most, a psychiatric's expert reliance on out-of-court statements by lay observers will not pass muster.

We are not stating categorically that expert reliance on hearsay observations by laypersons will always fail to satisfy the second prong of the test set forth supra at page 645. But, given the possibility that lay observers in some contexts (e.g., a family with a mentally ill member) may not be disinterested, and given, further, that the expert's inability to vouch for the lay observer's reliability will not necessarily undermine the expert's own aura of authority, [ 17 ] a trial court must be very careful to evaluate whether the proffered expert testimony and its underlying sources can be effectively scrutinized before the jury.

Id. at 646. Melton urges us to adopt the panel majority's three-part test. We have no quarrel with the first and third prongs of this articulation, but are unable to agree with the second.

The United States has filed an excellent brief as amicus curiae in which it has effectively marshalled the arguments against the division's second prong. We cannot improve upon the government's “Summary of Argument,” which we reproduce below in slightly edited form, annotated by authorities which, in our view, support the various propositions articulated therein:

The panel opinion's holding, mandating classification and compartmentalization of the ‘type’ of [information] underlying expert opinion or inference in order to determine its source and susceptibility to cross-examination, constitutes a significant, ill-advised change in this court's long-established jurisprudence. The decisions of this court have held that an expert's opinion is not inadmissible simply because it is based on [what would otherwise be] inadmissible hearsay if persons within the field of expertise customarily or reasonably rely upon such [information] in arriving at opinions. This rule is consistent with other jurisdictions' reasoned analysis.

There are adequate safeguards to ensure the integrity and fairness of proceedings when an expert opinion relying in part on inadmissible evidence is proffered: (1) this court's three-part Dyas *905 test for the qualification of experts; [ 18 ] (2) this court's rule that the profession must customarily rely upon such inadmissible hearsay evidence; [ [[[[ 19 ] (3) the trial court's broad discretion to exclude expert testimony that is more prejudicial than probative, founded on incompetent evidence, or mere speculation; [ 20 ] (4) the opposing party's right to cross-examine on the underlying data and introduce contrary evidence; [ [[[ 21 ] (5) the trier-of-fact's ability to determine the reliability and weight to be given to such evidence; [ 22 ] (6) the risk of nonpersuasion borne by the party with the burden of proof; [ 23 ] (7) the trial court's discretion to direct a

verdict.... where there is insufficient evidence to support a jury's finding; [ 24 ] and (8) this court's authority to take corrective measures on appellate review, should the trial court abuse its discretion.

Moreover, the proposed rule would introduce new, intractable problems of law and administration. [ 25 ] It does not account for expert testimony founded only in part on otherwise inadmissible hearsay; it would lead to unwieldy hearings necessitating formidable, fine distinctions between types of hearsay and whether they are ‘sufficiently’ susceptible to cross-examination; and it would prevent the jury from hearing probative expert opinions that are developed in accordance with accepted professional norms and methodology, including relevant psychiatric testimony. [ 26 ] [8] *906 In the final analysis, we view Rule 703 as having been intended to permit expert witnesses, provided that minimal standards of reliability have been met, to rely in the courtroom on the same data which they use in the office or laboratory. The panel majority's second prong would effect a substantial and in our view unnecessary intrusion upon the expert's sources. Accordingly, we decline to adopt it, and adhere instead to Judge Weinstein's articulation in “Agent Orange,” supra, 611 F.Supp. at 1245, which we have quoted at page 903 of this opinion. 27

E. Probative Value, Prejudice, and the Sufficiency of the Limiting Instruction. Even if, as we have concluded, the psychiatric witnesses testified on the basis of the kind of data on which experts in their field reasonably rely, we have some concern for another reason about the admission and use of the evidence. If we look at the substance rather than the form of what occurred, the second-hand testimony about Melton having punched his mother came to the jurors' attention in such a way that they might well have considered it for the truth of the out-of-court statement. This may also have occurred with respect to some other incidents.

On October 17, 1985, Dr. Byrd testified that Melton

became impulsive and lost control of his temper, which is a characteristic of a schizophrenic. And he punched his mother in the nose and became very angry with her.

The trial judge gave no contemporaneous instruction as to the purpose for which this testimony was received. It was not until four days later, during his final instructions, that the judge told the jurors, with respect to testimony by Dr. Byrd and Dr. Cornet as to information given to them by other individuals, that

these statements are admitted only to demonstrate the information relied upon by the doctors in forming their conclusion. They are to be considered by you only for the purpose of evaluating the reasonableness and correctness of the doctors' conclusions. They are not to be considered by you as actual proof of the incidents described. They are hearsay and as such are not admissible to establish the truth of the matters asserted by them.

This court has recently noted that some students of the law of evidence consider the distinction sought to be articulated in such a “limiting” instruction as “most unlikely to be made by juries.” Samuels, supra note 10, 507 A.2d at 153 n. 5. As Judge Salzman aptly remarked for the court in that case,

[c]onceptual problems are bound to arise when a judge tells a jury that the jury may consider psychiatric diagnoses based on medical records customarily relied on in professional practice, but then tells the jury that it may not consider the ‘truthfulness' of those records for any other purpose.

Id. With his customary eloquence, Justice Cardozo made a similar point for the Court in a somewhat different context in Shepard v. United States, 290 U.S. 96, 104, 54 S.Ct. 22, 25, 78 L.Ed. 196 (1933):

Discrimination so subtle is a feat beyond the compass of ordinary minds. The reverberating clang of those accusatory words would drown all weaker sounds. It is for ordinary minds, and not for *907 psychoanalysts, that our rules of evidence are framed.

See also Clark v. United States, 593 A.2d 186, 191 (D.C.1991).

The “conceptual” problems to which we referred in Samuels are especially serious with respect to a discrete dramatic act like punching one's mother on the nose. To tell the jurors that they are to consider the testimony about the punch as a basis for the expert's finding of dangerousness, but not with respect to whether Mr. Melton punched his mother, may call for mental gymnastics which only the most pristine theoretician could perform. We suspect that the reaction of that elusive individual, the reasonable person, would be that you cannot believe that the testimony about the punch tends to show that Melton is dangerous unless you first believe that he actually punched his mother. See Clark, supra, 593 A.2d at 193-94; Giles v. United States, 432 A.2d 739, 745-46 (D.C.1981). Since the expert apparently believed that he punched her, the jury was likely to believe it too. The distinction sought to be made may therefore become “ephemeral.” Thompson v. United States, 546 A.2d 414, 421 (D.C.1988).

The problem is a perplexing one, because it is difficult to articulate reasonable or workable limits on any rule which would exclude testimony of the kind here at issue and still vindicate the policies underlying Rule 703. In the present case, however, the appeal was at least initially predicated upon the lack of a finding by the trial judge that the out-of-court statement was of a kind reasonably relied upon by experts in the field, with only a conditional allusion to the potential difficulty the jury might have with the task of confining its consideration of such evidence to the purposes for which it was received. 28 Similarly, no contention was made in the trial court that a limiting instruction would be ineffective, or even that such an instruction ought to have been given earlier, or in a different and more emphatic form.

Unfortunately, the abbreviated way in which the trial judge dealt with the so-called “hearsay” issue made it difficult for Melton's counsel to expound his theory fully. 29 As we have previously noted, the trial judge has the authority to exclude otherwise admissible expert testimony if he or she is of the opinion that such testimony would be more prejudicial than probative. In the present case, at least, if Melton's mother had been available to testify, 30 it would have been a permissible exercise of the judge's discretion to condition admission of the expert testimony (regarding the allegation that Melton punched the mother) on the District's also calling the mother to testify and on its making her available for cross-examination. Given the posture of the issue both in the trial court and on appeal, however, we conclude that Melton has failed to show that the trial judge abused his discretion in receiving the evidence. See Samuels, supra note 10, 507 A.2d at 153.

F. The Lack of an Explicit Finding by the Trial Judge. [9] Unfortunately, the trial judge never made an explicit finding that psychiatric *908 experts reasonably rely on the kind of evidence which the District presented through the testimony of Dr. Byrd and Dr. Cornet. His sole articulated explanation-that an “exception” to the hearsay rule applied-cannot be viewed as the substantial equivalent of such a finding. Although Melton's counsel never explicitly directed the judge's attention to the need to address the question of “reasonable reliance,” this may well be so because the judge denied counsel's request to approach the bench.

We decline to remand the case, in spite of the trial judge's failure to make an explicit finding on the question on which the admission of the contested evidence depended, because we are satisfied that to do so would be both unnecessary and futile. The authorities cited in this opinion, and especially the Advisory Committee's note to Rule 703, persuade us that the drafters of that Rule viewed psychiatric reliance on information provided by family members and hospital records as reliable in principle. In the present case, in which the issue was whether Melton was likely to injure himself or others, the failure to make such an inquiry would have been subject to justifiable criticism. The accounts by different family members tended to substantiate each other and to corroborate the psychiatric testimony as to the effects of failure to receive medication. We discern no appreciable

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 In re Melton, 597 A.2d 892 (1991) possibility that the judge would make a finding that such reliance was unreasonable, when that result would be so contrary both to the teachings of the authorities which we have cited and to the judge's own rulings in this case.

The proper finding should have been made explicitly, but there was more than ample basis in the record for the judge to overrule Melton's objection. By contrast, the record gives us no reason whatever to conclude that the statements and records which the two psychiatrists described in their testimony are not of the kind reasonably relied on by experts in the field. As the court stated under very similar circumstances in Lawson, supra note 27, 653 F.2d at 302 n. 7,

Lawson points out quite correctly that Dr. Sheldon never testified, and the district court never found, that this information was of the type reasonably relied upon by psychiatrists. [ 31 ] The court must make such a finding in order to satisfy the requirements of Rule 703. United States v. Hollman, 541 F.2d 196, 201 (9th Cir.1976); Bauman v. Centex Corp., 611 F.2d 1115, 1120 (5th Cir.1980). We may take judicial notice, however, that psychiatrists customarily use such information to make a diagnosis. See Notes of Advisory Committee to Rule 703. The district court's error, under the circumstances in this case, is harmless.

To remand the case simply for the purpose of requiring the judge to make the prescribed finding now would be a symbolic rather than a practical act, which we view as unnecessary and as incompatible with “[g]ood judicial husbandry,” United States v. Dogan, 314 F.2d 767, 772 (5th Cir.1963). Accordingly, we decline to prolong this already protracted proceeding further by remanding the case.

CONCLUSION

For the foregoing reasons, the judgment appealed from is hereby

Affirmed. 32

*909 FERREN, Associate Judge, with whom MACK, Senior Judge, joins, dissenting: For the reasons expressed in the vacated division opinion, In re Melton, 565 A.2d 635 (D.C.1989), vacated, 581 A.2d 788 (1990), I would reverse and remand the case to the trial court with instructions to vacate Melton's civil commitment order.

The first issue is how a trial court is to determine whether the “facts or data ... upon which an expert bases an opinion or inference ... [is] of a type reasonably relied upon by experts in the particular field....” FED.R.EVID. 703. Everyone agrees that the court may not defer entirely to the proffered experts' own assessments of reliable hearsay. 1 So how does the court test those underlying sources?

In the division opinion, Melton, 565 A.2d at 643-45, we noted two extreme views. According to the Third Circuit, considered the so-called liberal admissibility view, the trial court “must make a factual inquiry and finding as to what data experts in the field find reliable. There is no discretion to forbear from making this inquiry and finding.” In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 277 (3d Cir.1983), rev'd on other grounds, 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Under this approach, the court only considers whether experts customarily rely on the proffered data; no analysis is made of

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 In re Melton, 597 A.2d 892 (1991) the reliability of the underlying data itself. The court leaves vigorous examination of the assumptions that form the basis for the opinion-including scrutiny of the underlying data-to cross-examination. See id.

At the other extreme, the “more restrictive view requires the trial court to determine not only whether the data are of a type reasonably relied upon by experts in the field, but also whether the underlying data are untrustworthy for hearsay or other reasons.” In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1223, 1244 (E.D.N.Y.1985), aff'd, 818 F.2d 187 (2d Cir.1987), cert. denied, 487 U.S. 1234, 108 S.Ct. 2898, 101 L.Ed.2d 932 (1988); see Soden v. Freightliner Corp., 714 F.2d 498, 505 (5th Cir.1983) ( Rule 703 requires trial court to examine reliability of expert's sources).

Consistent with the division opinion, the majority and I agree with Judge Weinstein, taking an intermediate position, that the trial court not only must make findings as to what data experts in the field find reliable but also must do something more to assure such reliance is reasonable. According to Judge Weinstein:

[T]he court may not abdicate its independent responsibilities to decide if the bases [used by a qualified expert] meet minimum standards of reliability as a condition of admissibility. See FED.R.EVID. 104(a). If the underlying data are so lacking in probative force and reliability that no reasonable expert could base an opinion on them, an opinion which rests entirely upon them must be excluded. FED.R.EVID. 401, 402.

“Agent Orange,” 611 F.Supp. at 1245; see ante at 902, 904-905.

The question, therefore, is what more the trial court must do to assure that expert reliance on particular data is reasonable-i.e., to assure that “minimum standards of reliability,” 611 F.Supp. at 1245, have been met? The majority opinion appears to incorporate Judge Weinstein's views in “Agent Orange” and leaves it at that. Based on the cases Judge Weinstein cited in support of his “minimum standards of reliability” test, 2 his view is closer to the *910 more restrictive, Fifth Circuit approach in Soden than to the liberal Third Circuit view in Japanese Electronic Products.

The division opinion-with which I still agree-supplied the following, more specific test for determining that the “minimum standards of reliability” have been met:

(2) the judge [must] conclude[ ] that the information (if not admissible for its truth under an exception to the hearsay rule) is of a type for which the underlying reliability of the data can be sufficiently explored through cross-examination of the testifying expert.

Melton, 565 A.2d at 645 (citing S. SALTZBURG & K. REDDEN, FEDERAL RULES OF EVIDENCE MANUAL 671 (4th ed. 1986)). Under this test for the most appropriate and efficient way of evaluating whether an expert's data meets “minimum standards” and thus is “reasonably relied upon,” FED.R.EVID. 703, the court must assure that the Third Circuit's premise in Japanese Electronic Products, 723 F.2d at 277, is sound as applied: that the expert knows enough about his or her sources of information, including how the data has been gathered and analyzed, that cross-examination can effectively explore the bases- including deficiencies-of the expert opinion.

The majority's (and the government's) concern about this “cross-examination” test to assure “minimum standards of reliability” apparently is attributable to the following two paragraphs in the division opinion:

Where experts rely on lay observations of behavior or events, however, cross-examining experts about the reasonableness of their reliance on this data may be more difficult. Absent the ability of an expert to testify concerning both the manner in which a lay observer has perceived and recorded certain facts and whether that manner accords with methods of fact- gathering ordinarily relied upon, cross-examination may provide little or no insight into the reliability of the basis for the expert opinion. In such circumstances a trial judge, therefore, may reasonably conclude that a jury will be incapable of performing its function of “determining the appropriate weight to be given to the testimony,” Japanese Electronic Products, 723 F.2d at 278, and exclude the expert opinion. See Note, Hearsay Bases [of Psychiatric Opinion Testimony: A Critique

of Federal Rule of Evidence 703, 51 S.CAL.L.REV. 129, 145 (1977) ] (“[A]n opinion can be no better than the hypothesis or assumption upon which it is based.”).

We are not stating categorically that expert reliance on hearsay observations by laypersons will always fail to satisfy the second prong of the test set forth supra at page 645. But, given the possibility that lay observers in some contexts (e.g., a family with a mentally ill member) may not be disinterested, and given, further, that the expert's inability to vouch for the lay observer's reliability will not necessarily undermine the expert's own aura of authority, a trial court must be very careful to evaluate whether the proffered expert testimony and its underlying sources can be effectively scrutinized before the jury.

Melton, 565 A.2d at 646 (footnotes omitted). This discussion in Melton does not say that expert opinion based in part on “lay observations of behavior or events,” id., is automatically excluded. It is not even intended to mean that expert opinion based entirely on such lay observations is automatically excludable, although it will be suspect (and very likely excludable) unless the expert can satisfactorily explain why under the circumstances such reliance is reasonable-surely not too much to expect. The point is this: before an expert testifies, the court must be able to know that counsel, on cross-examination, will be able to get to the heart of the expert's analysis and that the jury will hear a more *911 reasonable basis for reliance on hearsay than merely “trust me, I'm an expert.”

Judge SCHWELB concludes that “[t]he panel majority's second prong would effect a substantial and in our view unnecessary intrusion upon the expert's sources.” Ante at 906. I do not understand why that is true, or indeed why the division test is more intrusive than the verification-of-reliability efforts reflected in the cases Judge Weinstein cites in “Agent Orange,” see supra note 2, which the majority apparently accepts in simply adopting the Weinstein approach without elaboration.

Presumably, the majority requires the trial court to probe the experts to some extent about the reliability of the underlying data. Presumably, too, if the experts are not immediately convincing, the court will insist on deeper probing, perhaps with the help of counsel; for anything less would abdicate the trial court's independent responsibility. See “Agent Orange,” 611 F.Supp. at 1245. Such probing, as needed, is no less intrusive-or, as far as I can tell, materially more difficult-than the test in the vacated division opinion requiring the trial court to assure that “the underlying reliability of the [hearsay] data can be sufficiently explored through cross-examination of the testifying expert.” Melton, 565 A.2d at 645. Thus, either the majority effectively agrees with the division opinion on this issue (despite denying it) or does not come to grips with the need to assure the “minimum standards of reliability” (as it purports to do). I cannot tell from Judge SCHWELB's opinion where the majority really stands. 3

II.

The second issue is whether the testifying psychiatrists, Dr. Byrd and Dr. Cornet, were qualified to render expert opinions on Melton's dangerousness to himself or to others. I agree that psychiatrists commonly testify about a person's dangerousness- and properly so. See Barefoot v. Estelle, 463 U.S. 880, 896-903, 103 S.Ct. 3383, 3396-3399, 77 L.Ed.2d 1090 (1983); ante at 898-899. I also agree that, under applicable caselaw, a proffered expert need not be a specialist in order to testify concerning matters requiring special expertise. See Ornoff v. Kuhn and Kogan Chartered, 549 A.2d 728, 732 (D.C.1988); Baerman v. Reisinger, 124 U.S.App.D.C. 180, 181, 363 F.2d 309, 310 (1966); ante at 897-898. But the flipside is this: whatever the expert's formal qualifications, the trial court must make sure that the proffered expert is qualified by training, knowledge, and experience to express an opinion on the subject about which he or she is called to testify. See United States v. Davis, 772 F.2d 1339, 1342-44 (7th Cir.) (psychiatrist's testimony properly excluded where she lacked expertise on compulsive gambling), cert. denied, 474 U.S. 1036, 106 S.Ct. 603, 88 L.Ed.2d 581 (1985); see generally Melton, 565 A.2d at 647-49. We have recently stressed this point: “ ‘it is the actual qualifications of the witness that count, rather than his [or her] title.... Just as the wrong title may mean that the witness is nevertheless qualified, the right title will not suffice if the witness does not have the qualifications required by the facts of the case.’ ” District of Columbia v. Anderson, 597 A.2d 1295, 1299 (D.C.1991) (quoting 3 J. WEINSTEIN & M. BERGER, WEINSTEIN'S EVIDENCE ¶ 702[04] at 702-51 (1990)).

In this case, the trial court refused to consider Melton's counsel's objections to the psychiatrists' qualifications (saying “[w]e've been through that before”), did not purport to exercise discretion, see Johnson v. United States, 398 A.2d 354, 363 (D.C.1979), and thus, for all we can tell, declined to apply the criteria for admitting expert testimony. See Ibn-Tamas v. United States, 407 A.2d 626, 632-33 (D.C.1979) *912 (quoting three-part test for expert admissibility in Dyas v. United States, 376 A.2d 827, 832 (D.C.), cert. denied, 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977)); Japanese Elec. Prods., 723 F.2d at 277 (trial court has “no discretion to forbear from making ... inquiry and finding” as to “what data experts in the field find reliable”); see generally Melton, 565 A.2d at 648-49. The majority, however, makes its own findings from the record. Judge SCHWELB's opinion relies on Dr. Byrd's and Dr. Cornet's qualifications, based on long relationships with Melton, to justify their testifying about his dangerousness to himself from not taking prescribed medications. See ante at 898. I have two responses. First, the trial court, not the appellate court, must rule in the first instance; this court should not find facts. Second, even if the doctors were qualified to testify about Melton's danger to self, their opinions of his dangerousness focused as much, if not more, on Melton's dangerousness to others-an issue at the heart of Melton's civil commitment, an issue on which not all psychiatrists believe they are qualified to testify, see Estelle v. Smith, 451 U.S. 454, 472, 101 S.Ct. 1866, 1878, 68 L.Ed.2d 359 (1981), 4 and an issue which the majority does not address as to these particular psychiatrists. As Judge SCHWELB recognizes, the jury merely found Melton dangerous to self or to others. See ante at 894 n. 1. We therefore cannot be sure the jury did not focus exclusively on dangerousness to others-a possibility that makes an expert's qualifications to testify on danger to others critically relevant. 5

In a recent post-Melton probable cause hearing, D.C.Code § 21-525 (1989), the government's psychiatrist and only witness stated that he could not say there was a 50% or 70% chance that the respondent in that case, or in any case, was likely to be dangerous to self or others. This psychiatrist testified that psychiatrists are not generally capable of predicting future dangerousness with any accuracy. See Transcript at 8, In re D.L., MH No. 86-90 (D.C.Super.Ct. Jan. 30, 1990). 6 In another recent case, the government's psychiatrist at a probable cause hearing reluctantly expressed an opinion about the respondent's dangerousness, noting that it was a very complicated field and the subject of some controversy and that his ability to express such an opinion varied from case to case. See Transcript at 10-11, In re M.G., MH No. 155-90 (D.C.Super.Ct. Feb. 14, 1990). 7

*913 The legislature has, of course, decided that psychiatric evaluation will be useful and sometimes necessary in civil commitment decisions, but I see nothing in the legislative scheme indicating that every psychiatrist, by virtue of a credential as such, is qualified to testify as to a particular person's dangerousness to self or others. The trial court accordingly abused its discretion in failing to verify that Dr. Byrd and Dr. Cornet were qualified to opine on Melton's dangerousness.

Respectfully, therefore, I dissent as to both issues presented.

Footnotes * Judge Belson was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on July 24, 1991. 1 The verdict form did not require the jury to differentiate between the likelihood that Melton would injure himself and the likelihood that he would injure others. 2 Dr. Byrd testified, on the basis of pertinent hospital records, that in November 1984, Melton threatened to kill his mother. He was taken into custody by police on that occasion and brought to the hospital as an “emergency.” Dr. Byrd also related that the pattern of threats against the mother was repetitive and almost identical for all ten of Melton's prior admissions, that Melton had also threatened to stab his sister with a screwdriver and that “the record has numerous examples of this sort of thing.” 3 Dr. Byrd stated that “decompensate” means “get worse again and go back.” 4 In terms of Melton's own safety, Dr. Byrd testified that “on one of his admissions he came in because he threatened to set himself on fire. Another one he came in and he jumped out of a moving car on the way to the hospital.” 5 See the panel opinion, 565 A.2d at 636 n. 3, 647 n. 30, in which it is suggested that, in light of the trial judge's ruling with respect to Dr. Byrd, any similar objection with respect to Dr. Cornet would have been futile. 6 Or her. 7 Relying primarily on cases involving expert testimony by psychologists who were not physicians, a majority of the panel which heard this case was of the opinion that the mere fact that Dr. Byrd and Dr. Cornet were psychiatrists did not render them competent under

Baerman and Jenkins to testify regarding dangerousness. Melton I, supra, 565 A.2d at 648. Some psychiatrists, the panel suggested, might be competent to do so, while others may not. Id. The dissenting opinion analyzed and distinguished the authorities relied upon by the majority. Id. at 652-53 n. 9. We do not reopen that debate here. 8 Melton's counsel has presented for our consideration in this case the same views of the APA which were rejected by the Court in Barefoot. 9 We note that none of the statutory provisions cited suggests that only some special type of psychiatrist, trained in the art of predicting the future, can make the necessary determination. It is improbable, to say the least, that a legislature which contemplated determinations of dangerousness by two doctors, only one of whom must be a specialist in mental or nervous disorders, see § 21-902(b) (2), intended that testimony on the subject by qualified psychiatrists be precluded unless separate expertise on future dangerousness was first established. In asking us to divide psychiatrists into those who are experts on dangerousness and those who are not, Melton places “too much focus on a [purported] specialty and too little focus upon the [facts] alleged.” Ornoff v. Kuhn and Kogan Chartered, 549 A.2d 728, 731 (D.C.1988); see also Kling v. Peters, 564 A.2d 708, 715-16 (D.C.1989). Judge Ferren states in his dissenting opinion, post at 912, that even if the psychiatrists were qualified to testify about Melton's dangerousness to himself, they had no expertise on his dangerousness to others. There is nothing in this record to suggest that the two witnesses were less qualified to discuss the latter subject than the former. See pages 895-896, supra. Indeed, each was qualified to discuss both. Melton's dangerousness to himself and to others turned largely on his failure to take medication, a subject about which both psychiatrists necessarily knew more than a lay juror could reasonably be expected to know. Moreover, Judge Ferren's relation of excerpts from the testimony of two other psychiatrists in two different cases, each unrelated to and tried long after this one, see post at 912-913, cannot properly be relied upon in relation to the qualifications of Dr. Cornet and Dr. Byrd as they appear on this record. 10 The language used in some of our cases is “customarily rely.” See, e.g., In re Samuels, 507 A.2d 150, 153 n. 5 (D.C.1986); Edwards v. United States, 483 A.2d 682, 685 (D.C.1984). In most cases, the two adjectives are likely to lead to the same result, but we adopt the language of Rule 703. 11 The last sentence of this passage is quoted from Sundquist v. Madison Ry., 197 Wis. 83, 87, 221 N.W. 392, 393 (1928). 12 The judge stated only that the evidence was receivable under an unspecified “exception” to the hearsay rule. 13 Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955). 14 In Britz, the court upheld the exclusion of psychiatric testimony in a capital case because the experts failed to speak to friends or members of the defendant's family or to consult reports from the institutions at which the defendant had received treatment. 15 In the present case, Dr. Byrd explained that he tended to believe the allegation that Melton punched his mother and other similar accusations because “with all the multiple people documenting that, I do presume that there aren't many liars on that.” The conclusion that these allegations tended to corroborate each other, and were consistent with Melton's failure to take his medication regularly, strikes us as an eminently reasonable one. 16 In the present case, for example, counsel for Melton was in a position to elicit from the psychiatrists that they were not present when Melton allegedly punched his mother and that a representative from the hospital found nothing amiss when he went to investigate. 17 We do not share this less than admiring view of the common sense of the average juror. See Riordan v. Kempiners, 831 F.2d 690, 698 (7th Cir.1987) (Posner, J.) (criticizing “crabbed notions of relevance or excessive mistrust of juries”). 18 See discussion at pages 897-898, supra. 19 See discussion at pages 901-902, supra. 20 See Reed, supra, 584 A.2d at 591. 21 “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). In the present case, Davis is concededly a two-edged sword, for Melton could not cross-examine his mother. He could and did, however, point out the lack of first-hand knowledge on the part of the District's witnesses. Although the District had the burden of proof, Melton was also free to present evidence, if there was any, contradicting the events as described by out-of-court declarants. 22 See Bertolotti, supra, 883 F.2d at 1517. 23 The District must prove its case by “clear and convincing” evidence. In re Nelson, 408 A.2d 1233, 1236-37 (D.C.1979). This can render reliance on non-first-hand evidence a risky proposition. 24 As this court pointed out in Lynch v. United States, 557 A.2d 580, 582 n. 6 (D.C.1989) (en banc) (holding, in the context of “preventive” pretrial detention pursuant to D.C.Code § 23-1325 (1989), that a determination by clear and convincing evidence that an individual poses a danger to the community may be based on hearsay testimony), [a] trial judge may, of course, consider the hearsay character of the government's evidence in determining whether a clear and convincing showing has been made. The trial judge may, and in appropriate cases we are confident will, require that the hearsay evidence be buttressed by otherwise admissible evidence to meet the clear and convincing standard.

Although the question of dangerousness in a civil commitment proceeding is ordinarily determined by the jury as the trier of fact, the judge may direct a verdict if no reasonable jury could find by clear and convincing evidence that the respondent is likely to injure himself or others. See Super.Ct.Civ.R. 50. 25 We agree with amicus that the panel majority's second prong would unnecessarily tax the finite resources of court and counsel by requiring extensive collateral inquiries into the character of the expert's sources, and would constitute an “unwarranted intrusion on the jury's authority to determine the proper weight to be accorded the testimony proffered by the parties.” Bethea v. United States, 365 A.2d 64, 81 n. 36 (D.C.1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2979, 53 L.Ed.2d 1095 (1977). 26 See Jenkins, supra, 113 U.S.App.D.C. at 304, 307 F.2d at 641. In United States v. Sims, 514 F.2d 147, 149 (9th Cir.) cert. denied, 423 U.S. 845, 96 S.Ct. 83, 46 L.Ed.2d 66 (1975), the court made the point as follows: It seems logical that an expert, such as a psychiatrist in formulating an opinion in a case such as this, should be permitted to interview the agents who made the investigation leading up to the indictment and secure from them relevant facts developed during the investigation. Because of his professional background, knowledge, and experience, we should, in circumstances such as these, leave to the expert the assessment of the reliability of the statements on which he bases his expert opinion. He should not be precluded, in forming an opinion, from interviewing those who for one reason or another have had occasion to investigate and study the defendant's background. Years of experience teach the expert to separate the wheat from the chaff and to use only those sources and kinds of information which are of a type reasonably relied upon by similar experts in arriving at sound opinions on the subject. 27 We find it unnecessary and even fruitless to attempt to detail further, in the abstract, the minimal reliability standard, cf. post at 909-910 (Ferren, J., dissenting), except to emphasize again that it is a deferential one. Its application will depend on the particular circumstances of each case. In the present instance, in determining Melton's dangerousness to himself or others, we think that on any reasonable view, the experts' consideration of information provided by Melton's relatives, or contained in records of his past hospitalizations, meets minimal standards of reliability. See United States v. Lawson, 653 F.2d 299, 302 n. 7 (7th Cir.1981), cert. denied, 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982) and discussion at pages 907-908, infra. 28 In his original brief before the division, Melton argued conditionally that if the court fails to determine whether the information used by the psychiatrists possessed adequate indicia of reliability, then the limiting instruction is being asked to carry more weight than it was designed to hold. The argument was made under the heading “The lack of foundation for Dr. Byrd's opinion.” In his response to the amicus brief filed by the United States, Melton has adopted more broadly the concerns of the panel majority and of the dissenting opinion, Melton I, supra, 565 A.2d at 642, 654-55, that out-of-court statements regarding Melton's conduct would be considered by the jury for their truth because a limiting instruction would be difficult to follow. 29 It is evident from the opening statement of Melton's counsel that he was aware in advance of the issue that would arise. We suggest that in such circumstances a motion in limine should be filed, or that a ruling from the court should be sought before the seating of the jury. An early request for a ruling avoids interruption and even disruption of the testimony and facilitates the orderly and thoughtful resolution of legal issues. 30 No finding was made as to her availability. Counsel for the District indicated that the mother's departure in mid-trial had been sudden and unexpected. 31 In Lawson, the psychiatrist had little contact with the patient, but relied on reports from other physicians and staff members, on tests administered at the Federal Medical Center, and on information received from the United States Marine Corps, the FBI, and the United States Attorney's office. 32 Melton also contends that the judge should have granted his motion for a directed verdict at the close of the District's case. We disagree, substantially for the reasons stated in the dissent from the panel opinion. 565 A.2d at 655-56. By letter dated September 13, 1991, Melton's counsel advised the court that Melton's status has been changed from committed patient to voluntary patient. No party has asked us to dismiss the appeal as moot, and we see no reason to do so. In re Stokes, 546 A.2d 356, 357 n. 1 (D.C.1988); In re James, 507 A.2d 155, 159 n. 5 (D.C.1986); see also Honig v. Doe, 484 U.S. 305, 332, 108 S.Ct. 592, 608, 98 L.Ed.2d 686 (1988) (Rehnquist, C.J., concurring). 1 Amicus (the United States) notes it “agree[s] with appellant that ‘the court cannot ... simply ... accept[ ] as reasonable reliance what the expert decided to rely upon.’ ” Amicus Brief at 5 (quoting Appellant's Brief at 22). 2 The cases cited, 611 F.Supp. at 1245, are: United States v. Esle, 743 F.2d 1465, 1474 (11th Cir.1984) (expert opinion based on untrustworthy market surveys); Barrel of Fun, Inc. v. State Farm Fire & Casualty Co., 739 F.2d 1028, 1033 (5th Cir.1984) (unreasonable for expert to rely upon voice stress analysis); United States v. Cox, 696 F.2d 1294, 1297 (11th Cir.) (affirming exclusion of expert testimony that was based on hearsay knowledge of historical events not reasonably relied upon by experts in the field), cert. denied, [464 U.S. 827, 104 S.Ct. 99, 78 L.Ed.2d 104 (1983) ]; Soden v. Freightliner Corp., 714 F.2d 498, 503-06 (5th Cir.1983) (exclusion of expert opinion based on unreliable accident statistics); Dallas & Mavis Forwarding Co., Inc. v. Stegall, 659 F.2d 721, 722 (6th Cir.1981)

(testimony of state trooper offered as an expert regarding cause of accident based on story of biased eye witness “the sort of hearsay testimony” Rule 703 meant to foreclose); Toys “R” Us, Inc. v. Canarsie Kiddie Shop, Inc., 559 F.Supp. 1189, 1205 (E.D.N.Y.1983) (exclusion of expert opinion based on surveys lacking “sufficient indicia of trustworthiness” under Rule 703). 3 Judge SCHWELB finds it “unnecessary and even fruitless to attempt to detail further, in the abstract, the minimal reliability standard.” Ante at 906, n. 27. He then engages in appellate court fact-finding to ascertain-by mere assertion-that information provided by Melton's relatives and his hospital records “meets minimal standards of reliability.” Id. If this is so obvious, then presumably counsel could assure the court and jury of that fact through cross-examination. 4 As the Supreme Court recognized in Estelle v. Smith, 451 U.S. 454, 472, 101 S.Ct. 1866, 1878, 68 L.Ed.2d 359 (1981): Indeed, some in the psychiatric community are of the view that clinical predictions as to whether a person would or would not commit violent acts in the future are “fundamentally of very low reliability” and that psychiatrists possess no special qualifications for making such forecasts. See Report of the American Psychiatric Association Task Force on Clinical Aspects of the Violent Individual 23-30, 33 (1974); A. Stone, Mental Health and Law: A System in Transition 27-36 (1975); Brief for American Psychiatric Association as Amicus Curiae 11-17. 5 Judge SCHWELB responds that “[t]here is nothing in this record to suggest that the two witnesses were any less qualified to discuss” Melton's dangerousness to others than dangerousness to himself. Ante at 900 n. 9. Accordingly, he implicitly acknowledges that the government has proffered no direct evidence that the doctors were qualified to testify about future dangerousness. Furthermore, our caselaw demands that the proffering party must show the expert has sufficient “skill, knowledge, or experience” in the field to demonstrate that his or her opinion “will probably aid” the fact-finder; the law does not require the other party to provide evidence that the expert is unqualified. Dyas, 376 A.2d at 832. Judge SCHWELB, therefore, has the burden of proof reversed by suggesting-erroneously-that if an expert is qualified to address dangerousness to self, he or she must be deemed qualified to opine on dangerousness to others, absent rebuttal to the contrary. 6 Dr. Donald Taylor testified: I don't think I have said ‘I think, 50-percent chance or 70-percent chance this person will do this or the other thing,’ and I-I'm quite willing to concede that I don't think that that's within the state of the art to predict over a long period of time, more than a few days of time, with statistical accuracy, that is, with anything approaching more than 50/50. Even that perhaps is doubtful, so I concede that. I think it's very difficult to predict future behavior beyond a day or two. In re D.L., Transcript at 8. 7 Dr. Andrew Schwartz testified that predicting dangerous behavior: var[ies] very greatly, from case to case. I personally feel that the whole question of prediction of dangerous behavior is a very uncertain one.... [I]t's very difficult to make predictions about dangerousness or about human behavior in general in a predictive sense. But I think that within the spectrum of uncertainty, if you will, that there are some patients with whom one can be relatively more confident than others. In re M.G., Transcript at 11.

630 A.2d 202 District of Columbia Court of Appeals.

Darwin GALINDO, Appellant, v. UNITED STATES, Appellee.

No. 92–CF–448. | Argued June 11, 1993. | Decided Aug. 30, 1993.

Defendant was convicted in the Superior Court, Harriett R. Taylor, J., of taking indecent liberties with a minor, and he appealed. The Court of Appeals, Rogers, Chief Judge, held that: (1) testimony by mother about statements by three-year-old alleged sex offense victim to mother was admissible to show that child reported sexual offense, and limited additional details regarding complainant's statement simply indicated that act complained of was a sexual assault, and (2) testimony by physician about statements made to physician by mother was admissible under medical diagnosis exception to hearsay rule, even though mother herself was not patient.

Affirmed.

Attorneys and Law Firms

*204 Matthew C. Leefer, Frederick, MD, appointed by this court, for appellant.

M. Evan Corcoran, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, and Thomas C. Black and Mark Ehlers, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.

Before ROGERS, Chief Judge, and SCHWELB and KING, Associate Judges.

Opinion

ROGERS, Chief Judge:

Appellant Darwin Galindo appeals from his conviction by a jury of taking indecent liberties with a minor child. 1 D.C.Code § 22–3501(a) (Repl.1989). He contends that the trial judge erred in finding that the three-year-old complainant was competent to testify, in precluding cross-examination of the complainant's mother about prior bad acts and allowing the mother to testify about the complainant's statements, and in admitting the testimony of the examining physician about the mother's statements. He also contends that the trial judge erred in denying his motion for a judgment of acquittal. We affirm.

The charges arose as a result of an incident on September 21, 1991, when the complainant's mother left the three-year-old complainant in the care of appellant (who was married to the mother's sister) while the mother and appellant's wife went to work. At trial, approximately five months later, the complainant testified through an interpreter. The complainant said that while her cousin, who was six at the time *205 of trial, was in another room, appellant pulled her clothes down and “did something to me.... that he had right here,” pointing to her genital area. The complainant further explained that appellant touched her with “a thing which is called a pee pee,” and told her to “touch that thing.” The complainant also said that something came out of the “thing.”

The complainant's mother testified that when she left the complainant with appellant, the complainant's six-year-old cousin (appellant's son) and the mother's teenage brother (the uncle) were also in appellant's apartment. The mother was gone from approximately 9:45 a.m. to 3:00 p.m. When she returned with appellant's wife after work, the complainant immediately said she wanted to be with her mother, and appellant's wife asked, “what have they done to you, why are you so mad?” Appellant's son returned with the complainant and her mother to the complainant's apartment to play, but the mother eventually sent the boy home because the complainant was “very sniffly and crying.” According to the mother, “[a]lmost right after [appellant's son] left,” the complainant asked to be bathed “because [appellant] has spilled something on me.” 2 The complainant then told her mother that appellant had “put a thing there” and pointed to her genital area. When the mother asked her daughter, “where did he have the thing,” the complainant pointed again to her genital area. The judge immediately instructed the jury that the testimony about what the complainant told the mother could only be used to show that a complaint of sexual assault was made, and not to prove the truth of statements in the complaint.

On cross-examination, the mother testified that the complainant told her that appellant “had taken down his pants,” taken the complainant's underwear off, wiped off the complainant with a towel, and kissed the complainant on the mouth. She further testified that the complainant's genitals were “irritated and rubbed,” and that she had noticed changes in the complainant's behavior after the incident.

The uncle testified that the complainant's mother arrived at appellant's apartment around 9 a.m. and left about an hour later; he (the uncle) left about an hour after that, leaving appellant and the two children (the complainant and appellant's six-year- old son) alone in the apartment. When the uncle returned approximately two hours later, the complainant was crying, and she was “kind of uncomfortable, [and] didn't really ... play like she [usually] did” for the rest of the afternoon. The uncle remained in the same room as the two children continuously from the time he returned home until the complainant's mother arrived. When the complainant's mother returned around 4 p.m., the complainant ran to her and “told her mother she didn't want to be there no more.”

Dr. Rosella Castro, who testified as an expert in general medicine and pediatrics, examined the complainant two days after the incident. At the time the doctor was unable “to get words from” the complainant, who was acting “a little shy and a little bit withdrawn.” When the doctor questioned the complainant after speaking with the complainant's mother, the complainant pointed to her genitalia. The doctor found redness in the complainant's inner genitalia that, in her opinion, was consistent with contact with a round, firm object, such as a male sexual organ, and with sexual abuse, but inconsistent with skin irritation or the complainant's causing the redness herself. On cross-examination, the doctor admitted that her conclusion regarding sexual abuse was strongly influenced by the history given by the mother. The doctor also testified that the mother told her that “whoever was taking care of [the complainant] put his genitalia and touched her,” and that this person urinated on the complainant. The doctor called the police to report suspected sexual abuse.

*206 The defense theory was that appellant was being falsely accused as a result of an on-going family feud and that the complainant's testimony was not worthy of belief. In his defense, appellant called his wife, who testified that she and appellant had had some disagreements with the complainant's mother, who had said uncomplimentary things about appellant and taken at least one job away from appellant's wife. Appellant's wife claimed that she saw nothing unusual about the complainant's behavior upon returning from work on September 21, 1991. Appellant's six-year old son testified that he did not remember the complainant crying the last time he played with her, which was apparently the day of the incident; he had been playing a video game in a bedroom that day and claimed that appellant slept all day in one of the bedrooms.

Appellant also testified. He explained that he had had arguments with the complainant's parents. Appellant testified that the uncle had been out of the apartment for only ten or fifteen minutes on September 21, 1991, and that the complainant's mother and appellant's wife had returned to the apartment around 3 p.m. He denied that he had done anything unusual to the complainant, removed her clothes, or seen her cry, and he testified that he spent part of the day resting in his bedroom and part of the day in the living room working.

II.

Appellant contends that the trial judge erred in denying appellant's pretrial request for psychological or psychiatric examination of the complainant and in finding that the complainant was competent to testify at trial. Prior to trial the judge conducted a competency hearing at which the complainant and her mother testified and the complainant was questioned by both counsel and the trial judge. While acknowledging that the complainant had some problems recalling numbers, the judge concluded that the complainant was competent because she understood the difference between truth and falsehood, was able to recount events, and was “remarkably accurate in her answer[s] to the various questions.”

[1] [2] [3] [4] The determination of a witness' competence to testify lies within the sound discretion of the trial judge, and this court will not disturb the judge's factual determination unless it is “plainly deficient.” Vereen v. United States, 587 A.2d 456, 457 (D.C.1991) (citing Collins v. United States, 491 A.2d 480, 484 (D.C.1985), cert. denied, 475 U.S. 1124, 106 S.Ct. 1646, 90 L.Ed.2d 190 (1986)); see also Beausoliel v. United States, 71 U.S.App.D.C. 111, 112, 107 F.2d 292, 293 (1939). 3 This court necessarily defers to the trial judge's ability to observe the witness. 4 A child is a competent witness if she is able to “recall the events which are the subject of the testimony; and *207 ... understand the difference between truth and falsehood and appreciate the duty to tell the truth.” Barnes v. United States, 600 A.2d 821, 823 (D.C.1991). See also Beausoliel, supra, 71 U.S.App.D.C. at 113, 107 F.2d at 294; cf. Vereen, supra, 587 A.2d at 457. Obviously, with a very young child there is reason for the trial judge to conduct a thorough voir dire. See Barnes, supra, 600 A.2d at 823. Here, the experienced trial judge conducted an extensive voir dire and she specifically found that while the complainant “doesn't know why she has to tell the truth ... it's quite clear from her repeated spontaneous insistence that she doesn't tell lies, that she does tell the truth, that she in her mind feels it was important to tell the truth and not to tell a lie....” Under the circumstances there is no basis on which this court can conclude that the trial judge's determination was “plainly deficient.” Vereen, supra, 587 A.2d at 457.

[5] [6] Furthermore, given the presumption against compelling psychological or psychiatric examinations of witnesses, which is based on concerns regarding the attendant invasion of the witness' privacy and the potential use of such examinations to harass opposing witnesses, see id. at 457, 458; Collins, supra, 491 A.2d at 484, we find no basis on which to conclude that “the record provides ‘unmistakable evidence that the trial court's impressions are defective.’ ” Collins, supra, 491 A.2d at 484 (witness for whom examination sought was the victim and the only eyewitness) (quoting Hilton v. United States, 435 A.2d 383, 388 (D.C.1981)). The judge gave a candid appraisal of the complainant's shortcomings with respect to her ability to recall numbers, but the judge properly relied on the relevant factors in concluding that the complainant was competent. Appellant has failed to suggest any basis for overcoming the presumption against ordering an examination. He did not proffer at trial (nor does he on appeal) that the complainant had any psychological problems or mental illnesses, relying instead only on her age and the need to use an interpreter as reasons for requesting the examination. This was insufficient to overcome the presumption. See Barrera v. United States, 599 A.2d 1119, 1126 (D.C.1991). Appellant's reliance on United States v. Crosby, 149 U.S.App.D.C. 306, 308, 462 F.2d 1201, 1203 (1972) (“red flag” of drug addiction, drug use on day of trial, and prior hospitalization), is misplaced since that case is factually so dissimilar as to offer little guidance here.

III.

Appellant also contends that the trial judge erred in precluding cross-examination of the mother and in allowing the mother to testify about the complainant's statements. We find neither contention meritorious.

[7] A party may cross-examine a non-defendant witness concerning prior bad acts that have not resulted in convictions only where the party “has a factual predicate for such question[s],” and “the bad act ‘bears directly on the veracity of the witness in respect to the issues involved [at] the trial.’ ” Sherer v. United States, 470 A.2d 732, 738 (D.C.1983) (quoting United States v. Akers, 374 A.2d 874, 878 (D.C.1977) (citation omitted)), cert. denied, 469 U.S. 931, 105 S.Ct. 325, 83 L.Ed.2d 262 (1984). See also Roundtree v. United States, 581 A.2d 315, 323 (D.C.1990). We find no abuse of discretion by the trial judge. Id.

[8] Defense counsel proffered that in September and October of 1991 the mother had lied on forms and documents in order to obtain Medicaid payments, and counsel sought to cross-examine her on that subject. The trial judge properly ruled that the alleged falsehoods were unrelated to the offense with which appellant was charged and denied counsel's request. 5 *208 Lawrence v. United States, 482 A.2d 374, 376–77 (D.C.1984), cited by appellant, is readily distinguishable. In Lawrence, the trial judge refused to permit cross-examination regarding a key government witness' allegedly false prior accusations of sexual conduct between family members, after the witness testified that she had seen her sister's boyfriend sexually assault her niece. See id. Moreover, because the complainant in Lawrence was “often uncooperative during both direct and cross-examination,” the witness' testimony became more crucial. Id. In the instant case, in contrast, the alleged wrongdoing was unrelated to the content of the mother's testimony, the complainant was not uncooperative on the witness stand, and the mother's testimony was corroborated by the complainant, the medical evidence, and the mother's brother.

[9] [10] Furthermore, even where the alleged prior bad act involves a witness' untruthfulness, the Sixth Amendment right of confrontation is “contingent on a showing that the [untruthful conduct] actually took place.” Sherer, supra, 470 A.2d at 738. Cf. Roundtree, supra, 581 A.2d at 323 n. 20. 6 Defense counsel proffered only that appellant's wife had heard the complainant's mother talking with the complainant's father about getting a false letter from his employer so that they could qualify for medicaid assistance; the precise extent of the mother's involvement was not stated with specificity. While defense counsel also proffered that the complainant's parents eventually received medicaid assistance, he was unable to produce any evidence that they used falsehoods to qualify. Under the circumstances, we find no error by the trial judge in refusing to permit the cross-examination. See Sherer, supra, 470 A.2d at 739.

[11] Similarly, we find no basis to conclude that reversible error occurred when the mother was permitted to testify about the complainant's statements to her. At trial the prosecutor initially maintained that the testimony was admissible as substantive evidence under the excited utterance exception to the hearsay rule. See Alston v. United States, 462 A.2d 1122, 1126 (D.C.1983). The trial judge never ruled on this argument, but later gave a report of rape instruction in response to the prosecutor's request. Although objecting earlier on the ground that the report of rape rule was no longer an exception to the hearsay rule in light of the abolition of the requirement of corroboration, defense counsel interposed no objection to the instruction. 7 Thus, immediately after the *209 mother repeated the complainant's statements, the trial judge instructed the jury that the testimony was admissible “only as evidence that a report of a sexual assault was made,” and not as evidence of the truth of the statements.

Under the report of rape rule, a witness may testify that the complainant stated that a sexual crime occurred and may relate the detail necessary to identify the crime. While the corroboration requirement has been abolished as a part of the government's burden of proof, see supra note 7, courts have recognized that the need for corroboration continues for several reasons, including the need to rebut an implied charge of recent fabrication that exists in the minds of jurors. See Battle v. United States, 630 A.2d 211, 217, 218, 220–221 (D.C.1993); 8 cf. Fitzgerald v. United States, 443 A.2d 1295, 1305 (D.C.1982) (en banc) (forestalls jurors' inference that if there is no evidence of a prompt complaint of rape, there was no such report, and if no report was made, no crime occurred) (quoting WIGMORE, EVIDENCE § 1135, at 298–99 (Chadbourn rev. 1972)). The court has recently examined the question in detail and concluded that the basic reasons for the report of rape rule remain valid after the elimination of the corroboration requirement. See Battle, supra, at 221.

[12] Accordingly, the mother's testimony that the complainant pointed to her genitals and said “he put a thing there” was admissible to show that the child reported a sexual offense. In the absence of actual impeachment of the complainant, limited details regarding the complainant's report to her mother were admissible to show that the complainant was describing a sexual assault. Id. at 223. The complainant was three years old and, understandably, had a limited sexual vocabulary. The mother's testimony that the complainant first said that “he has put a thing there,” did not clearly indicate that the complainant was describing a sexual assault. The limited additional details regarding the complainant's statements—that the complainant said “here, mommy” while “pointing to her private parts” to indicate the “thing” with which appellant touched her and where he touched her—simply indicated that the act complained of was a sexual assault. While the mother's testimony that the complainant asked to have a bath because appellant spilled something on her was unrelated to showing that the complainant was describing a sexual assault, appellant has failed to show any prejudice. 9 The mother's other testimony that the complainant said appellant had “put a thing there” was admissible, see id. at 221–22, 222, 223, the medical evidence strongly corroborated the complainant's testimony, and the complainant's testimony was quite explicit and sufficient to convict appellant. See Barrera, supra, 599 A.2d at 1124–25. 10 The complainant was available for cross-examination, and the trial judge twice gave a limiting instruction on the proper use of the testimony. In addition, defense counsel, during cross-examination of the mother, brought out further details that the complainant had told the mother.

IV.

[13] [14] Finally, appellant contends that the trial judge erred in allowing the doctor *210 to testify about the mother's statements to the doctor. Under the medical diagnosis exception to the hearsay rule, statements made by a patient for purposes of obtaining medical treatment are admissible for their truth because the law is willing to assume that a declarant seeking medical help will speak truthfully to medical personnel. See Sullivan v. United States, 404 A.2d 153, 158 (D.C.1979). We find no principled basis in the instant case not to apply the same rationale to a parent who brings a very young child to a doctor for medical attention; the parent has the same incentive to be truthful, in order to obtain appropriate medical care for the child. Cf. Stull v. Fuqua Industries, Inc., 906 F.2d 1271, 1274 (8th Cir.1990) (to fall within medical records exception under FED.R.EVID. 803(4), “the statement must be obtained from the person seeking treatment, or in some instances from someone with a special relationship to the person seeking treatment, such as a parent”); Petrocelli v. Gallison, 679 F.2d 286, 291 (1st Cir.1982) (FED.R.EVID. 803(4) allows admission of “patient or family statements” which are “reasonably pertinent to diagnosis”); State v. Bauman, supra note 3, 779 P.2d at 186 (dictum); Yellow Cab Co. v. Henderson, 183 Md. 546, 39 A.2d 546, 550 (1944). Appellant's suggestion that the visit to the doctor was prompted by legal rather than treatment incentives is unpersuasive. The mother took the complainant to the clinic the next day that the clinic was open; it was closed on weekends. The doctor, not the mother, recognized the sexual assault as a criminal matter and referred the matter to the police. The mother's statements to the doctor did not suggest a deliberate attempt to lay a foundation for expert testimony at a trial, see Sullivan, supra, 404 A.2d at 158–59, but rather suggested a mother's natural concern about her child's condition and health.

The court has recognized that statements about the cause of injuries fall within the medical diagnosis exception to the hearsay rule because explaining the cause of injuries may facilitate treatment. Sullivan, supra, 404 A.2d at 158; see also United States v. Iron Thunder, 714 F.2d 765, 772–73 (8th Cir.1983) (doctor's testimony about adult rape victim's statements admissible); United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir.1980) (two-part test for admissibility), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981); United States v. Nick, 604 F.2d 1199, 1201–02 (9th Cir.1979) (upholding admission of doctor's testimony that child described sexual assault). The court has held that the medical diagnosis exception applies to statements in a complainant's hospital records about the injured party's explanation of the cause of the injury. In Sullivan, supra, the patient's hospital records indicated that the complainant had said that his injuries were caused during a fight and not a car accident. Sullivan, supra, 404 A.2d at 158. The statements were presumably the reports noted by hospital staff of what the complainant had told them. 11

[15] [16] In the instant case, the doctor's testimony that the mother said that the person who was supervising the complainant was the sexual assailant is admittedly a statement of blame rather than a mere statement of causation. Even if statements of fault are generally excluded from the medical diagnosis exception, see id. at 159 & n. 11, a statement by a child or her parent that the child has been sexually assaulted by someone who is effectively a member of the child's immediate household is admissible when “reasonably pertinent to treatment,” because the injury involves more than mere physical injury, but has psychological and emotional consequences as well. See United States v. Renville, 779 F.2d 430, 437–38 (8th Cir.1985) (identity of abuser may affect nature and extent of psychological problems caused by child abuse; rule “banning statements of fault is premised on the assumption that the injury is purely somatic”); cf. Cassidy v. State, 74 Md.App. 1, 536 A.2d 666, 683 (1988). Such statements are also relevant to preventing a reoccurrence of the abuse. See *211 Renville, supra, 779 F.2d at 438; 12 D.C.Code § 2–1352(a) (b) (Repl.1988) (requiring physician to report any discovery of child abuse). We find no error in the trial judge's ruling on this issue. But, in any event, even if the doctor's testimony included an impermissible statement of fault, the error was harmless. See Kotteakos v. United States, 328 U.S. 750, 764–65, 66 S.Ct. 1239, 1247–48, 90 L.Ed. 1557 (1946). Any prejudice was mitigated by the fact that the complainant, her mother, and the doctor testified at trial and were available for cross-examination. 13 The doctor's testimony relating the mother's statements did not identify the wrongdoer by name, but only referred to the assailant as “whoever was taking care of [the child].” The mother's statements repeated by the doctor were cumulative of testimony by the complainant and her mother. In addition, identity of the abuser was not an issue at trial; the defense never claimed that the complainant had been sexually abused by someone else and the defense theory was that the complainant and her mother were fabricating their stories.

[17] Appellant fares no better with his contention that because the doctor's diagnosis was based on the mother's repetition of the complainant's statements, the trial judge erred in allowing the doctor to testify about her diagnosis. This argument is meritless because the doctor's testimony that the mother said the child had been sexually abused was admissible. Furthermore, the doctor's diagnosis was informed as well by her physical examination of the complainant, the complainant's conduct and appearance, and the doctor's previous knowledge of the complainant, whom she had seen before. Cf. In re Melton, 597 A.2d 892, 900–02 (D.C.1991) (en banc) (citations omitted).

Accordingly, we affirm the judgment of conviction.

Footnotes 1 Appellant was indicted for assault with intent to commit carnal knowledge, D.C.Code § 22–501 (Repl.1989), and convicted of the lesser included offense. 2 It is not clear exactly how much time passed after the mother retrieved the child before appellant's son left and the complainant spoke to her mother. The elapsed time appears to have been approximately two hours according to appellant's testimony and a relatively short time, perhaps fifteen to thirty minutes, according to the complainant's mother. 3 Appellant relies on the statement in Beausoliel, supra, that “no one would think of calling as a witness an infant only two or three years old.” Id. at 112, 107 F.2d at 293 (quoting Wheeler v. United States, 159 U.S. 523, 524, 16 S.Ct. 93, 40 L.Ed. 244 (1895)). However, decisions about young children's competence to testify have changed. See, e.g., Richard v. State, 306 Ark. 543, 815 S.W.2d 941, 942 (1991) (three-year-old); Casselman v. State, 582 N.E.2d 432 (Ind.Ct.App.1991) (three-year-old competent, but much of testimony stricken by trial judge in bench trial, apparently on credibility grounds); State v. Bailey, 52 Wash.App. 42, 757 P.2d 541, 545 (1988) (three-year-old), aff'd, 114 Wash.2d 340, 787 P.2d 1378 (1990); In Re C.B., 749 P.2d 267 (Wyo.1988) (three-year-old, plain error review, child able to demonstrate on anatomically correct dolls); People v. District Court, 791 P.2d 682, 685, 686 (Colo.1990) (en banc) (four-year-old competent to testify because child need not know difference between truth and lies, or meaning of oath to tell the truth); People v. Jehnsen, 183 Mich.App. 305, 454 N.W.2d 250, 252 (1990); State v. Walters, 247 Mont. 84, 806 P.2d 497, 500 (1991) (four-year-old); In re M.L.S., 234 Neb. 570, 452 N.W.2d 39, 41 (1991) (four-year-old); State v. Bauman, 98 Or.App. 316, 779 P.2d 185, 186 (1989) (four-year-old); Reyna v. State, 797 S.W.2d 189, 192 (Tex.Ct.App.1990) (four-year-old); see also Edmonson v. United States, 346 A.2d 515, 516 (D.C.1975). 4 Cf. Williams v. United States, 595 A.2d 1003, 1006 (D.C.1991). In the instant case, the complainant testified through an interpreter. Therefore, her demeanor may be even more crucial, and the transcript less helpful, than usual because the words in the transcript have been filtered through an interpreter.

5 The judge stated that “the factual content of the various cases which deal[ ] with this issue make clear that the questions proffered here are not related in the required manner to the issue involved in the trial.” The judge may also have implicitly decided that there was insufficient evidence that the prior bad act had occurred. The judge stated that: We're not even talking here about firsthand knowledge. We're just talking about somebody who said that this witness lied under certain circumstances which are in no way related to the circumstances here. See Roundtree, supra, 581 A.2d at 323 (“notwithstanding the fact that a party proposing cross-examination claims to have a ‘factual predicate’ ... the trial court may assess the questioner's offer of proof to determine whether such a factual predicate exists”); Sherer, supra, 470 A.2d at 738–39. Defense counsel offered to voir dire appellant's wife, who allegedly heard the child's parents planning to get a letter from the father's employer understating the father's income. 6 “[T]he constitution does not require confrontation of witnesses with irrelevant evidence.” Roundtree, supra, 581 A.2d at 321. The Confrontation Clause mandates that the defendant be allowed to cross-examine the witness on prior falsehoods “only where it is ‘shown convincingly’ ” that the prior statements were actually untrue. Id. (quoting Sherer, supra, 470 A.2d at 739); see also id. at 322 (where complainant has previously made allegations similar to those made at trial, cross-examination on prior allegations “constitutionally mandated” only if prior statements “shown convincingly” to be false). If the two-part test of Sherer and related cases is satisfied, the judge retains broad discretion, even where Confrontation Clause concerns apply, to weigh “the probable effect on fair and efficient conduct of the trial.” Id. at 323 (quoting Sherer, supra, 470 A.2d at 738). 7 The requirement for corroboration of a sexual offense victim's testimony has been abolished. See D.C.Code § 23–114 (Repl.1989) (child's testimony); Gary v. United States, 499 A.2d 815, 833–34 & n. 22 (D.C.1985) (en banc) (child victims), cert. denied, 475 U.S. 1086, 477 U.S. 906, 106 S.Ct. 1470, 106 S.Ct. 3279, 89 L.Ed.2d 725, 91 L.Ed.2d 568 (1986); Arnold v. United States, 358 A.2d 335, 344 (D.C.1976) (en banc) (adult victims). 8 Among the courts continuing to admit evidence of a prompt report of a sexual offense under the report of rape rule are Connecticut, New Jersey, and Pennsylvania. See State v. Pollitt, 205 Conn. 61, 530 A.2d 155, 163 (1987) (en banc); State v. Hill, 121 N.J. 150, 578 A.2d 370, 371, 374–76, 378 (1990) (en banc); Commonwealth v. Green, 487 Pa. 322, 409 A.2d 371, 374 (1979) (en banc); Commonwealth v. Freeman, 295 Pa.Super. 467, 441 A.2d 1327 (1982). 9 The parties stipulated that the stain on the complainant's clothing had been analyzed and had not been found to be semen. 10 Hence, appellant's contention that the trial judge erred in denying his motion for a judgment of acquittal is meritless. Viewing the evidence, as we must, in the light most favorable to the government, we cannot say that no reasonable juror could find beyond a reasonable doubt that appellant took indecent liberties with the complainant. See Curry v. United States, 520 A.2d 255, 263 (D.C.1987); Shelton v. United States, 505 A.2d 767, 769 (D.C.1986). In addition to the complainant's rather explicit testimony, there was corroborating medical evidence as well as corroborating evidence with respect to appellant's opportunity and the complainant's conduct during the relevant day. 11 There is no indication in the opinion that the person who wrote the statement in the hospital record was the same person who actually spoke to the complainant. 12 Renville, supra, 779 F.2d 430, concerned a complainant's statement of the identity of her abuser, where the abuser was a member of the same household. See id. at 437, 438, 436. An analogous situation exists in the instant case, where the complainant and appellant lived in adjoining apartments, appellant was married to the sister of the complainant's mother, and appellant acted as an immediate family member. The court in Renville also noted that one can be sure that the declarant is motivated by the desire for treatment “where the physician makes clear to the victim that the inquiry into the identity of the abuser is important to diagnosis and treatment, and the victim manifests such an understanding.” Renville, supra, 779 F.2d at 438 (citing Iron Shell, supra, 633 F.2d at 83–84). In the instant case, although the doctor did not testify that she told the mother that all information would be used to facilitate treatment, there is nothing to indicate that the mother was making the statements for any purpose other than obtaining appropriate treatment for her daughter. 13 See Sherrod v. United States, 478 A.2d 644, 660–61 (D.C.1984); Sullivan, supra, 404 A.2d at 159; cf. Carr v. United States, 585 A.2d 158, 162 n. 3, 161 (D.C.1991).

741 A.2d 395 District of Columbia Court of Appeals.

Sarah CLYBURN, Appellant, v. The DISTRICT OF COLUMBIA, Appellee.

No. 97–FM–693. | Submitted Sept. 24, 1998. | Decided Nov. 18, 1999.

Defendant was convicted in the Superior Court, Gregory E. Mize, J., of failing to have her child regularly attend school in violation of the Compulsory School Attendance Act, and she appealed. The Court of Appeals, Ruiz, J., held that, although school form was admissible under business records exception to hearsay rule to prove number of days that child was absent, it was not admissible under exception to prove common residence of child and defendant for purposes of determining if defendant violated Act.

Remanded.

Attorneys and Law Firms

*396 Donald W. Whitehead, Jr., Ellicott City, MD, for appellant.

Jo Anne Robinson, Principal Deputy Corporation Counsel, Robert R. Rigsby, Deputy Corporation Counsel at the time the brief was filed, and Rosalyn Calbert Groce, Washington, DC, were on the brief, for appellee.

Before STEADMAN and RUIZ, Associate Judges, and MACK, Senior Judge.

Opinion

RUIZ, Associate Judge:

Following a bench trial, appellant was convicted of thirteen counts of failing to have her child regularly attend school, in violation of the Compulsory School Attendance Act, D.C.Code § 31–402(a) (1993). On appeal, she argues that the evidence was insufficient to support the conviction because there was no proof that she had custody or control of her child at the time the violations occurred. Specifically, appellant contends that the trial court could not rely on hearsay school records which listed the same address for her and the child. We agree that the school records were not properly admissible for this purpose. As the trial court relied on the school record in finding appellant guilty, we remand the case for further proceedings consistent with this opinion.

During the 1995–96 school year, appellant's daughter, T.C., had numerous unexcused absences from school. Pursuant to school policy, the classroom teacher completed and turned into the school principal Form 565A, Absence Investigation Request, which listed the same address, 423 Burbank Street, S.E., for both appellant and T.C. After the principal became aware of these absences, she assigned a Pupil Personnel Worker to investigate, and personally attempted to contact appellant on at least one occasion. The principal also sent letters to appellant at the address listed on Form 565A requesting an explanation for T.C.'s absences, but the school never received anything in writing from appellant explaining the reasons for her daughter's absences. The principal met appellant at the school following a parent-teacher conference during the 1995–96 school year, at which time

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Clyburn v. District of Columbia, 741 A.2d 395 (1999) 140 Ed. Law Rep. 319 appellant introduced herself as T.C.'s mother. Additionally, at some other point during the 1995–96 school year, when asked about her absenteeism that school year, T.C. told the principal that “my mom kept me at home.”

II.

[1] [2] In reviewing claims of insufficiency of the evidence at trial, this court views the evidence in the light most favorable to the government, giving deference to the right of the fact-finder to weigh evidence, draw all justifiable inferences, and determine credibility. See Green v. United States, 608 A.2d 156, 158 (D.C.1992). No distinction is drawn between direct and circumstantial evidence. See Parker v. United States, 601 A.2d 45, 51 (D.C.1991) (citing Driver v. United States, 521 A.2d 254, 259 (D.C.1987)); Curry v. United States, 520 A.2d 255, 263 (D.C.1987). Only in such instances where there is no evidence upon which a reasonable person might fairly conclude guilt beyond a reasonable doubt should the evidence be found insufficient. See In re L.A.V., 578 A.2d 708, 710 (D.C.1990); Roy v. United States, 652 A.2d 1098, 1103 (D.C.1995) (citing Parker, supra, 601 A.2d at 51).

Appellant contends that the evidence was insufficient to support a conviction under the Compulsory School Attendance Act. To convict appellant of violating the Act, the government must show beyond a *397 reasonable doubt that a parent “who has custody or control of a minor” child failed to place the minor in “regular attendance” at school. D.C.Code § 31–402(a) (1993). Appellant does not dispute the trial court's finding that she is the parent of a minor child who was consistently absent from school without a valid excuse, but does challenge the finding that she had “custody or control” of the child at the time the violations occurred.

[3] [4] We conclude, viewing the evidence in the light most favorable to the government, that a reasonable fact-finder could find that appellant had custody or control of T.C. and, thus, was guilty of failing to ensure her regular attendance at school. The school principal, and sole witness in this case, testified that appellant told her she was T.C.'s mother during a parent- teacher conference at the school, and that, when questioned, T.C. indicated that it was her mother who kept her out of school. 1 Additionally, the Absence Investigation Request (Form 565A) prepared by the child's teacher listed both mother and child at the same address. “When the trial court sits as the fact finder, its factual findings are accorded considerable deference and are reviewed under a ‘clearly erroneous' standard.” Davis v. United States, 564 A.2d 31, 35 (D.C.1989) (en banc); see also D.C.Code § 17–305(a) (1997 Repl.). In this case, appellant's statement to the principal that she is T.C.'s mother, T.C.'s response to the principal that her mother kept her out of school and the school form listing their common address, if properly before the court, could give rise to a reasonable inference that appellant had “custody or control” of T.C. during the time she was repeatedly absent from school. 2

[5] Appellant contends that the information listing both mother and child at the same address in Form 565A Absence Investigation Report is inadmissible to show custody because no foundation was given at trial “regarding how or where such information would have been ascertained.” App. Br. at 3. Under the business record hearsay exception, a document is admissible if it was (a) made in the regular course of any business, and (b) if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter. See Giles v. District of Columbia, 548 A.2d 48, 53 (D.C.1988); Super. Ct. Gen. Fam. R. Q(a); see also Super. Ct. Civ. R. 43–I(a). In this case, the principal testified that the Absence Investigation Report was made in the regular course of school business, and that it was school policy for teachers to make these reports after three unexcused absences, as was the case with T.C.

Appellant correctly argues, however, that before the hearsay information on her and T.C.'s common address can be admitted under the business record exception, the government must also show a basis of personal knowledge of the information contained in the school record. In In re D.M.C., 503 A.2d 1280, 1282 (D.C.1986), we *398 required a showing that “the maker of the record had personal knowledge of the facts set forth in that record or, if not, that the facts were communicated to the maker, directly or indirectly, by one who was acting in the regular course of business and who had such personal knowledge.” Notwithstanding the express ruling in In re D.M.C. that the business record hearsay exception requires the proponent to lay a

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Clyburn v. District of Columbia, 741 A.2d 395 (1999) 140 Ed. Law Rep. 319 foundation of personal knowledge, the Superior Court rule relevant to this case appears to exclude that factor as a requirement for admissibility, providing instead:

Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such at, transaction, occurrence, or event, or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility.

Super. Ct. Gen. Fam. R. Q(a) (1997); see Super. Ct. Civ. R. 43–I(a) (1997) (emphasis added). Moreover, since D.M.C., in laying out the foundation requirements for the business record exception, we have at times omitted the personal knowledge element. Compare Giles v. District of Columbia, supra, 548 A.2d at 53 (noting, in the context of admissibility of chemist's report under D.C.Code § 33–556, that the “key to admissibility of a business record as an exception to the hearsay rule, therefore, is the foundation provided by the testimony of someone in a position to verify ‘that the records were maintained in the regular course of ... business operations.’ ” ) (quoting Martini Hairdressers, Inc., v. Potomac Beauty Supply Co., 203 A.2d 200, 201 (D.C.1964)), with Goldsberry v. United States, 598 A.2d 376, 378 (D.C.1991) (noting with respect to public record exception to hearsay rule, that facts in public document must be “within the personal knowledge and observation of the recording official”), and (Donnell) Hunter v. United States, 590 A.2d 1048, 1053 (D.C.1991) (same).

[6] Therefore, we take this opportunity to restate that, to be admissible under the business record exception to the hearsay rule, either the original maker of the business record sought to be admitted under the exception must have personal knowledge of the information in the record, or must have received the information from someone with such personal knowledge and who is acting in the regular course of business. This requirement was clearly set forth in United States v. Smith, 172 U.S.App.D.C. 297, 521 F.2d 957 (1975), relied upon by D.M.C., which interpreted the Business Records Act, 28 U.S.C. § 1782(a), a statute that contains the same language as the Superior Court rule at issue here. 3 As explained by the Smith court:

By overwhelming majority, the better view of this language is that while it exempts the maker of the record from the requirement of personal knowledge, it allows admission of the hearsay only if it was reported to the maker, directly or through others, by one who is himself acting in the regular course of business, and who has personal knowledge United States v. Smith, supra, 172 U.S.App.D.C. at 304, 521 F.2d at 964. [7] Having stated that there is a personal knowledge requirement, however, does not answer the question how the requisite personal knowledge may be shown. We have said in the context of the public record exception that it is not necessary *399 for the record-maker to testify about his or her personal knowledge. Rather, a sufficient foundation is laid if the presenter of the record testifies, or some other evidence supports, that the maker has an obligation to make an accurate recording. Cf. Goldsberry, supra, 598 A.2d at 379. Although in this case the school principal testified that T.C.'s teacher, who filled out the form, had personal knowledge of T.C.'s absences from school, the principal did not testify, however, that T.C.'s teacher either had personal knowledge of where T.C. and appellant lived or had included the address information on the school form after having received the information from someone with personal knowledge of that fact in the regular course of business. Therefore, the necessary foundation of personal knowledge is lacking with respect to the address listed on the school form. The trial court appears to have relied on the school form for the number of days T.C. was absent from school and for the “address also indicated as Ms. Clyburn's address.” Although the school form was admissible as a business record to prove the number of days T.C. was absent from school, it cannot be used as proof of their common residence.

Because the trial court's decision in this case relied on inadmissible evidence, we remand the case for further proceedings consistent with this opinion. 4

Remanded.

Parallel Citations

140 Ed. Law Rep. 319

Footnotes 1 Although appellant's brief notes that the principal's testimony with respect to what the child said is inadmissible hearsay, that objection was not made to the trial court, and appellant does not argue that it was plain error for the trial court to consider hearsay evidence. See (Kevin) Hunter v. United States, 606 A.2d 139, 144 (D.C.) (cert. denied, 506 U.S. 991, 113 S.Ct. 509, 121 L.Ed.2d 444 (1992)). “Hearsay evidence admitted without objection may be properly considered by the trier of fact and given its full probative value.” Mack v. United States, 570 A.2d 777, 782 (D.C.1990) (citation omitted). In addition, we note that the trial court did not mention the child's statement when it found appellant guilty. 2 Although the government does not make the argument, and we are cognizant of the government's burden to prove its case beyond a reasonable doubt, we think it is reasonable for the fact-finder to infer, absent evidence to the contrary, that a parent has custody or control of a child. Cf. In re B.C., 582 A.2d 1196, 1199 & n. 6 (D.C.1990) (explaining that parental responsibilities “do not terminate absent the death of the parent or a court order”) (citing Martin v. Tate, 492 A.2d 270, 273 (D.C.1985)). 3 Super. Ct. Fam. R. Q(a) (issued May 19, 1980) and the identical Super. Ct. Civ. R. 43–I(a) (issued June 30, 1975) were both in existence at the time In re D.M.C. was decided. 4 If the trial court, as the finder of fact in a bench trial, should determine that it would not have convicted appellant absent the inadmissible evidence, the trial court should set aside the conviction, without prejudice to the right of the government to retry the case. See Thomas v. United States, 557 A.2d 599 (D.C.1989). However, if the trial court should determine that it would have convicted the appellant even without consideration of the improperly admitted evidence, the conviction shall stand, without prejudice to the right of the appellant to file a renewed notice of appeal. Neither party has briefed the legal sufficiency of the remaining evidence, apart from the improperly admitted evidence, to sustain a conviction and we do not here address that issue.

828 A.2d 184 District of Columbia Court of Appeals.

In re CA.S., In re CH.S., and In re K.S. L.D., Appellant

No. 00–FS–802, 00–FS–803, 00–FS–804. | Argued March 15, 2002. | Decided July 10, 2003.

District of Columbia filed a petition alleging that father's three children were neglected. The Superior Court, Zinora M. Mitchell– Rankin, J., declared the children neglected children. Father appealed. The Court of Appeals, Terry, J., held that: (1) finding that father mentally abused his three children based on their having witnessed father's pattern of abusing their mother was not supported by the evidence; (2) psychologist's testimony regarding underlying incidents of domestic violence allegedly witnessed by children was not admissible over hearsay objection; but (3) evidence supported finding that father was unable to discharge his responsibilities to and for his children because of incarceration; and (4) fact that father was not incarcerated on date neglect petition was originally filed did not preclude such finding.

Affirmed.

Attorneys and Law Firms

*186 Anthony R. Davenport, appointed by the court, for appellant.

Juliet J. McKenna, appointed by the court, for appellees Ca.S., Ch.S., and K.S. Keely Magyar, also appointed by the court, entered an appearance for appellees Ca.S., Ch.S., and K.S. *

Robert R. Rigsby, Corporation Counsel at the time the briefs were filed, Charles L. Reischel, Deputy Corporation Counsel, and Sheila Kaplan, Assistant Corporation Counsel, filed a statement in lieu of brief for appellee District of Columbia.

Before WAGNER, Chief Judge, and TERRY and RUIZ, Associate Judges.

Opinion

TERRY, Associate Judge:

These consolidated appeals are taken from an order of the Superior Court declaring that Ca.S., Ch.S., and K.S. are neglected children. Appellant L.D. is the father of all three children; their mother is deceased. The court ruled that the children were neglected within the meaning of D.C.Code § 16–2301(9)(A) and (B) (2001) because their father had inflicted mental injury on them when he beat their mother. The court also ruled that the children were neglected within the meaning of D.C.Code § 16–2301(9)(C) because L.D., their only surviving parent, was incarcerated. We hold that there was insufficient evidence to permit the court to find that the children were neglected under D.C.Code § 16–2301(9)(A) and (B), but that there was sufficient evidence to sustain a finding of neglect under D.C.Code § 16–2301(9)(C). Accordingly, we affirm.

Ch., Ca., and K., whose current ages are 11, 12, and 15, respectively, lived with their mother, E.S., until her death on March 1, 1999. Their father, L.D., was in and out of jail, but spent time with them when he was not incarcerated. In 1994 L.D. was sentenced to six to eighteen years in prison for a drug offense. He was released on parole from Shaw Residence II, a halfway house, on October 9, 1998.

One month before L.D.'s release from the halfway house, E.S. sought a civil protection order (CPO) against him. In her CPO petition, E.S. alleged that L.D. had beaten her at her home on three different dates in late August and early September 1998 and that, on the most recent of those occasions, he had also raped and sodomized her. 1 I.M., the sister of E.S., saw E.S.'s physical appearance after some of these beatings, and after the third such incident, on September 8, she took E.S. to the police station and then to the hospital. In her testimony at the neglect hearing, I.M. described E.S.'s appearance on September 8, stating that “her lips were swollen ... she had knots on her forehead, she *187 had scratches behind her mark [sic ] ... her whole face was swollen.” I.M. also said that the children had observed E.S.'s condition on September 8 and were disturbed by it. 2

L.D. signed a “Consent Civil Protection Order Without Admissions.” The order required him to stay 100 feet away from E.S., but it also allowed him to have visitation rights with his children every other weekend following his release from the halfway house.

On March 1, 1999, E.S. was fatally stabbed. 3 Two days later the District of Columbia filed a petition alleging that the children were neglected within the meaning of D.C.Code § 16–2301(9)(A), (B), and (C). The children were placed temporarily in the care of their maternal grandmother and aunt, and in due course a fact-finding hearing on the neglect petition was held on three days in March and April 2000.

The government's main witness at the hearing was “Dr. A.B.,” 4 an expert in the field of clinical psychology. Dr. A.B. reviewed the case record and interviewed the children at the request of the Corporation Counsel. She spent at least four and a half hours with the children, during which time she interviewed them both as a group and individually. Dr. A.B. testified that all of the children described violence between their father and mother. 5 Dr. A.B. also stated that the children were afraid of their father and believed he was involved in the murder of their mother. 6 She explained the harmful effects of domestic violence on children, and concluded that her assessment of the children was that “they look like children that have been exposed to long- term trauma” and had signs of post-traumatic stress disorder due to violence between their parents.

The government also offered into evidence E.S.'s petition for a civil protection order, testimony from I.M. about E.S.'s physical condition at the time she filed the petition, and evidence that L.D. was currently in jail because his parole had been revoked for violating the earlier civil protection order. 7 There was also testimony from Dr. Charles Missar, a psychologist, and Leandre Cooke, a clinical social worker, but no transcript of the testimony of these witnesses has been included in the record by either party.

*188 L.D.'s only witness was L.A.D., his sister. L.A.D. testified that she saw E.S. with a black eye on one occasion and that the children told her that “Mike,” a friend of E.S., was the person who caused the black eye. L.A.D. also said that the children enjoyed spending time with their father and had never complained to her about him. The trial court, however, did not credit L.A.D.'s testimony because she could not remember the children's birthdays or addresses.

The court found that the children had “witnessed a pattern of abuse of their mother—their caretaker—by their father.” Relying on this finding, the court ruled that the children were neglected within the meaning of D.C.Code § 16–2301(9)(A) and (B) because L.D. had intentionally inflicted mental injury on them. 8 The court also found that L.D. was incarcerated and, consequently, that the children were neglected within the meaning of D.C.Code § 16–2301(9)(C). 9

[1] L.D.'s principal contention is that there was insufficient evidence to enable the trial court to find that the children were neglected under either D.C.Code § 16–2301(9)(A), (B), or (C). 10 In a neglect case, the government is required to prove its allegation of neglect by a preponderance of the evidence. D.C.Code § 16–2317(b) and (c) (2001); see In re A.S., 643 A.2d 345, 347 (D.C.1994). On appeal, this court views the evidence “in the light most favorable to the government, drawing no distinction between direct and circumstantial evidence.” Id. (citations omitted). Furthermore, when any case is tried by a judge without a jury, “the judgment may not be set aside except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it.” D.C.Code § 17–305(a) (2001); see also In re A.S., 643 A.2d at 347.

A. D.C.Code § 16–2301(9)(A) and (B)

This court has stated that evidence that a child is present during episodes of domestic violence is sufficient to prove mental abuse under D.C.Code § 16–2301(9)(A). See In re L.D.H., 776 A.2d 570, 575 (D.C.2001). 11 In the instant case, the trial court found that the children had

witnessed a pattern of abuse of their mother—their caretaker—by their father, which occurred over a period of *189 time before their mother's death (at least from August 1998). Based on the expert testimony of Dr. A.B., as further corroborated by Dr. Missar, Leandre Cooke, and [I.M.], the Court further finds that the respondents witnessed this pattern of abuse both directly and indirectly. In both ways, these young children knew that the violence was occurring because they lived with their mother and they relied on their mother. Indeed, Dr. A.B. testified that one of the respondents even described how he witnessed his father punch his mother and hit her in the face, and further described his mother's appearance after this episode of violence. [Emphasis in original.] On the basis of these findings, the court ruled that the children were neglected under both D.C.Code § 16–2301(9)(A) and 16–2301(9)(B). [2] After reviewing the record, we hold that there was not sufficient probative evidence to support this conclusion. No direct evidence that the children had witnessed any domestic abuse—such as testimony by the children or other eyewitnesses to the alleged domestic violence—was presented at the hearing. 12 Instead, the court relied on the testimony of Dr. A.B., together with E.S.'s CPO petition and the testimony of other non-eyewitnesses, as a basis for its finding. None of this evidence, however, was competent to show that the children had in fact witnessed domestic violence between their father and their mother.

1. The Testimony of Dr. A.B.

[3] The trial court relied heavily not only on Dr. A.B.'s expert conclusions, but also on her underlying testimony that the children had been exposed to domestic violence. Indeed, the court specifically cited Dr. A.B.'s description of an incident in which one of the children reported that he had seen L.D. hit E.S. The children's statements to Dr. A.B., however, were plainly hearsay, and the court could not rely on them in order to find that the children had actually witnessed domestic violence.

Appellees argue that Dr. A.B.'s testimony was not inadmissible hearsay because appellant never objected to it. See Eldridge v. United States, 492 A.2d 879, 883 (D.C.1985) (“once hearsay evidence is admitted without objection, it may be properly considered by the trier of fact and given its full probative value”); Bullock v. United States, 243 A.2d 677, 679 (D.C.1968) (“hearsay testimony to which no objection is made may be properly considered along with other evidence in determining the facts”). Appellant contends, on the other hand, that he did object to the testimony before the trial, although his objection was

“not as clear as one would desire.” We agree with appellant that the admissibility of the hearsay evidence was sufficiently contested to preserve the issue for appellate review.

Before the neglect hearing, counsel for L.D. told the court that he intended to call the children as witnesses at the hearing. The guardian ad litem and the District of Columbia, however, filed a joint motion to prevent them from testifying, and the trial judge granted the motion. During argument on the motion, the following discussion took place:

MR. DAVENPORT [counsel for L.D.]: I believe that the Government *190 would introduce, will attempt to introduce through some of its witnesses statements the [children] made in terms of both their mental state and the causes thereof. And without having the opportunity to actually make inquiry myself, we would simply be confined to what the Government's witnesses say they heard—

THE COURT: They're going to present expert testimony....

* * * * * *

MR. DAVENPORT: So we would be left ... in a position where we would be seeking to cross-examine a witness about another potential witness's statement. That's impossible.

THE COURT: Isn't that the nature of expert testimony? Isn't it proper for an expert to rely, I mean, in addition to there being a number of hearsay exceptions which just readily come to mind in that context, but isn't an expert permitted to rely on hearsay testimony in connection with the doing of their evaluation and the preparation of their report? Isn't that permitted by the rules, and isn't that the nature of expert testimony in any event, and isn't that why in the context of this ... why I often have one expert on one side and another expert on the other, which presumably you're planning or at least contemplating offering me—

* * * * * *

MR. DAVENPORT: Yes, Your Honor, but this is an instance where we also have the opportunity to determine whether or not the facts or statements which underlie or are relied upon by the expert who's tendering his or her opinion have been accurately reported or accurately interpreted. Absent that opportunity—

THE COURT: Well, that will depend upon what you do with the expert, right? I mean, in terms of whether or not something has been accurately reported or accurately interpreted, if an expert reaches a conclusion, while the rules don't specifically require that an expert outline his or her basis for the same, I mean, good examination requires the same.

We think this colloquy can be fairly read as a hearsay objection by L.D.'s counsel and a rejection of it by the court.

[4] [5] Appellees nevertheless maintain that Dr. A.B.'s testimony regarding the underlying incidents of domestic violence was admissible under one of several hearsay exceptions. 13 The first of these is the exception for statements affecting medical diagnosis. See Sullivan v. United States, 404 A.2d 153, 158 (D.C.1979); FED. R. EVID. 803(4). This exception allows statements made for the purpose of medical diagnosis to be admitted so long as the statements are “not merely ‘made to elicit evidence for use in the trial.’ ” Sullivan, 404 A.2d at 158 (citation omitted). In this case, however, Dr. A.B. was not the children's treating physician; her interview with the children was conducted at the request of the Corporation Counsel solely *191 in preparation for the doctor's testimony at the hearing. Under the rule as stated in Sullivan, therefore, the medical diagnosis exception does not apply.

Appellees suggest that this court has tended to construe the medical diagnosis exception broadly, especially in cases involving children. For example, in Galindo v. United States, 630 A.2d 202 (D.C.1993), we upheld the admission of statements made by a mother to a doctor during the doctor's examination of her child, in which the mother recounted what she knew about the defendant's sexual abuse of the child. We specifically noted, however, that the doctor's evaluation was for medical rather than

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 In re CA.S., 828 A.2d 184 (2003) legal purposes. Id. at 210. In this case, because Dr. A.B.'s evaluation of the children was strictly for the purpose of this litigation, cases such as Galindo are of no help to appellees.

[6] Appellees also assert, relying on In re Melton, 597 A.2d 892 (D.C.1991) (en banc), that Dr. A.B.'s testimony was admissible to show the basis for her diagnosis of the children. In Melton the trial court found that the respondent was a paranoid schizophrenic who was likely to be a danger to himself or others and accordingly committed him to Saint Elizabeths Hospital. At the mental health trial, the government's only witnesses were two psychiatrists who testified about their diagnosis of Mr. Melton and their assessment of his future dangerousness. During their testimony, the doctors recounted events leading up to Melton's hospitalization, including the report of an incident at which neither of them was present, when Melton punched his mother in the nose. On appeal Melton argued that this testimony was inadmissible hearsay.

We held that there was no reversible error in admitting the testimony because experts are permitted to rely on facts not in evidence as a basis for their opinions, so long as they are of the type reasonably relied upon by other experts in their field. Id. at 901. 14 We observed that psychiatrists reasonably rely on information from family members in reaching their conclusions, and thus that the experts who evaluated Melton were permitted to rely on such information. Id. at 902. Significantly for this case, however, we also noted that the testimony was admitted “only ‘for the purpose of evaluating the reasonableness and correctness of the doctors' conclusions,’ and not ‘to establish the truth of the matters asserted by [the declarants].’ ” Id. at 901 (quoting the trial court's jury instructions).

The present case is distinguishable from Melton because here the court considered the hearsay statements for their truth, not simply as a basis for assessing Dr. A.B.'s conclusions. Dr. A.B.'s evaluation of the children led her to conclude that they had been exposed to long-term trauma and exhibited signs of post-traumatic stress disorder. The trial court, however, relied on the doctor's testimony to find that the children had actually witnessed domestic violence between their parents. Although the doctor was entitled to rely on the children's out-of-court statements about the beatings to form a basis for her opinion, the court could not consider those statements to prove the truth of what they asserted—i.e., that the children actually *192 saw their father beating their mother. Dr. A.B.'s testimony was admissible under Melton only for a limited purpose: to establish a basis for her expert opinion that the children suffered from long-term trauma. The court erred when it relied on Dr. A.B.'s testimony to find that the children had in fact witnessed domestic violence.

2. Other Evidence

[7] [8] None of the other evidence in the record was sufficient to show that the children witnessed domestic violence or that their long-term trauma was the result of what they saw. From the testimony of I.M. the court could infer that E.S. had been beaten. Her testimony, however, did not permit the court to find that L.D. was responsible for the beatings or, more importantly, that the children were present when the beatings took place. Moreover, although the CPO petition did allege that L.D. had beaten E.S., 15 the petition did not state that the children were present at any of the times that E.S. alleged she was beaten.

[9] Additionally, although the court also based its ruling in part on the testimony of Dr. Missar and Leandre Cooke, their testimony has not been included in the record on appeal. 16 The duty to provide an adequate record is primarily on the appellant, see Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C.1982), but “an appellee also has a duty to insure an adequate record so the judgment in the latter's favor may be upheld ....” Dulles v. Dulles, 302 A.2d 59, 60 (D.C.1973); see also Parker v. Stein, 557 A.2d 1319, 1323 (D.C.1989); D.C. Ct.App. R. 10(c). Because neither party has provided us with a transcript, we have no way of knowing whether the testimony of Dr. Missar or Ms. Cooke showed that the children were present during instances of domestic violence. Moreover, even assuming that either or both witnesses so testified, the chances are that their testimony was hearsay, since it is doubtful that either Dr. Missar or Ms. Cooke was present during any such incidents.

Because there was no admissible evidence that the children actually witnessed incidents of domestic violence between their parents, we hold that the evidence was insufficient to permit the court to find that L.D. had inflicted mental abuse on them. Consequently, the trial court erred in finding that the children were neglected under D.C.Code § 16–2301(9)(A) and (B). 17

B. D.C.Code § 16–2301(9)(C)

[10] D.C.Code § 16–2301(9)(C) defines a “neglected child” as “a child ... whose *193 parent, guardian, or other custodian is unable to discharge his or her responsibilities to and for the child because of incarceration, hospitalization, or other physical or mental incapacity” (emphasis added). L.D. argues that the evidence was also insufficient to permit the court to find neglect under this section. We disagree.

[11] L.D. first contends that he was not incarcerated at the relevant time. Although it is true that L.D. was not in jail on March 3, 1999, the date on which the neglect petition was originally filed, his parole was revoked and he was incarcerated again on August 27, 1999. The government moved on January 21, 2000, to amend its petition to include the fact of L.D.'s incarceration; the motion was unopposed and was granted on February 4, 2000. We hold that this was all that was needed to bring the case under section 16–2301(9)(C).

L.D. next argues that even if he was incarcerated, relatives were available and willing to care for the children. There is nothing in the neglect statute, however, which makes the availability of relatives relevant to a finding of neglect. The statute states simply that a child is neglected if a “parent ... is unable to discharge his or her responsibilities to and for the child because of incarceration ....” D.C.Code § 16–2301(9)(C). Whether this language permits (or requires) the court to consider the possible availability of other relatives to care for the child before making a finding of neglect appears to be an open question.

This court held in In re T.J., 666 A.2d 1 (D.C.1995), that a mother who herself was unable to care for her child was nevertheless entitled to be heard on the question of who should be her child's custodian:

[W]e conclude, on the facts of this case, that the mother's choice of a suitable custodian and the household in which her son should be reared should have been accorded far greater weight by the trial court, and it was error for the court not to give effect to the mother's choice of custodian for her child absent a showing, by clear and convincing evidence, that the choice would be clearly contrary to the child's best interest.

Id. at 15 (citation omitted). T.J. is factually distinguishable from the case at bar in several respects. Most importantly, it was an adoption case, in which the trial court had granted the foster mother's petition for adoption, thereby terminating the mother's parental rights forever. The instant case, by contrast, is a neglect case, in which the issue is whether the state should intervene in the first instance because the children have been neglected, as that term is defined in the statute. An argument might well be made that a parent's right to provide for the care of children by someone else is greater in a case such as this, before the state has taken custody upon an adjudication of neglect, and that the court should not have found these children to be neglected without considering their father's preference for someone to take care of them while he was incapacitated by incarceration. 18

This is not an easy issue, but we conclude that we need not decide it on the present record. Even if the reasoning of T.J. were applicable to this case, there was no showing before the trial court that L.D. had made any alternative arrangements for the children's care. Indeed, the evidence established that he did not provide *194 for them financially and had been incarcerated for most of their lives. It is true that the children had been placed with maternal relatives after their mother was murdered, but this was done pursuant to a court order, not at the behest of their father. It was also established that L.D. faced at least two and a half years, and possibly as many as twelve years, in prison. Absent any showing that other family members were or might be available to care for the children, or even that L.D. had anyone in mind to perform this function in the foreseeable future, we conclude that the trial court did not err in relying on the statutory language (“unable to discharge [parental] responsibilities ... because of incarceration”) in finding the children to be neglected. 19

III

We hold that there was insufficient evidence to support the finding of the trial court that the children were neglected under D.C.Code § 16–2301(9)(A) and (B) because they witnessed domestic violence between L.D. and E.S., and accordingly we vacate that finding. We also hold, however, that the court's finding that the children were neglected under D.C.Code § 16– 2301(9)(C) was supported by sufficient evidence. The adjudication of neglect is therefore

Affirmed.

Footnotes * Juliet McKenna withdrew from the case shortly after oral argument, upon being appointed as a Magistrate Judge of the Superior Court. Keely Magyar then entered the case as her successor counsel. 1 The petition alleged, in addition, that L.D. had beaten E.S. on another occasion a few years earlier. 2 I.M. stated that Ch., the youngest child, went to his mother and asked what had happened and what was wrong, and that Ca. could not even look at her. I.M. could not recall K.'s reaction. 3 L.D. was at one time a suspect in the murder of E.S. As of the time of oral argument, however, he had not been charged with the crime. 4 The court granted a request to protect the identity of the doctor. She is identified in the record only as Dr. A.B., which may or may not be her actual initials. 5 One of the children told Dr. A.B. that he had actually seen his father hit his mother in the face sometime in 1998 or early 1999. Another child recounted hearing his mother cry for help while being beaten as he was waiting in the car for his father to come out of the house. 6 The children told Dr. A.B. that their mother was afraid of their father and that they had moved around because of her fear. One of the children reported that his father had told him in a serious manner that he was going to kill his mother. In addition, one of the children said that while he was playing a game with his father, his father wrote as part of the game that he was going to kill his mother. 7 There was evidence that L.D. had entered E.S.'s home on December 14, 1998, in violation of the CPO, when he brought the children back after a visit, and that while there he had assaulted E.S. and threatened her with a gun. In May 1999 he pleaded guilty to a charge of violating the CPO, and on August 27, 1999, his parole was revoked. 8 D.C.Code § 16–2301(9)(A) defines a “neglected child” as “a child ... who has been abandoned or abused by his or her parent, guardian, or other custodian.” D.C.Code § 16–2301(23) goes on to define “abused,” with reference to a neglected child, as “a child whose parent, guardian, or custodian inflicts or fails to make reasonable efforts to prevent the infliction of physical or mental injury upon the child ....” A judicial finding of “intentional and severe mental abuse” requires the District of Columbia to file a motion to terminate the parent-child relationship. D.C.Code § 16–2354(b)(3)(D). D.C.Code § 16–2301(9)(B) alternatively defines a “neglected child” as “a child ... who is without proper parental care or control ... necessary for his or her physical, mental, or emotional health, and the deprivation is not due to the lack of financial means of his or her parent, guardian, or other custodian.” 9 D.C.Code § 16–2301(9)(C) defines a “neglected child” as “a child ... whose parent, guardian, or other custodian is unable to discharge his or her responsibilities to and for the child because of incarceration, hospitalization, or other physical or mental incapacity.” 10 L.D. also argues that the trial court erred in finding that the infliction of mental injury was intentional. Because we hold that there was insufficient evidence showing that L.D. inflicted any mental injury on the children at all, we need not consider this argument. 11 In L.D.H., the child's mother testified that the father had beaten, threatened, and stalked her over a ten-year period, and that the child was present during some instances of domestic violence. 776 A.2d at 572. 12 Counsel for L.D. sought permission to call the children as witnesses, but the court denied his request because their treating therapist said they would be emotionally harmed if they were required to testify. 13 One of these is the exception for statements of existing emotional condition, sometimes called the “state of mind” exception. See Clark v. United States, 412 A.2d 21, 25 (D.C.1980); FED. R. EVID. 803(3). This exception, however, is applicable only to statements made to Dr. A.B. by the children about their own state of mind at the time of their interview; it does not apply to descriptions of past acts or incidents witnessed by the children. See FED. R. EVID. 803(3) (exception does not apply to a “statement of memory or belief to prove the fact remembered or believed”). Thus statements by the children telling of their current fear of their father were admissible, but statements describing incidents they witnessed in the past were not.

14 Among other authorities, we cited Rule 703 of the Federal Rules of Evidence, which states: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. 15 Although the CPO petition was also hearsay, appellant did not object to its admission; hence it could be considered for its truth. See Eldridge, 492 A.2d at 883. 16 The record does contain a report from Dr. Missar based on an interview he conducted with one of the children. The doctor's conclusions in that report are similar to the conclusions of Dr. A.B. Although there is no transcript of Leandre Cooke's testimony in the record, the trial court described it in its findings of fact. According to those findings, Ms. Cooke met with E.S. at the hospital in December of 1998 after another incident of domestic violence. E.S. told Ms. Cooke that L.D. had entered her home after he brought the children back from a visit. When E.S. refused his pleas to resume their relationship, L.D. stayed in the home overnight and raped her repeatedly at gunpoint. In the morning, E.S. attempted to signal one of the children to call for help. 17 The court found that the children were neglected under subsection (9)(B), relying on the same evidence which it considered in finding that they were neglected under subsection (9)(A). Although subsection (9)(B) sets out a different standard of neglect from subsection (9)(A), see note 8, supra, we hold that the failure to prove that the children actually witnessed any episode of violence precludes a finding of neglect under either subsection. 18 We express no opinion, of course, on whether such an argument would be successful. 19 For essentially the same reasons, we need not address L.D.'s related argument that the court erred in failing to find that the children were “deprived” of proper parental care and control.

857 A.2d 465 District of Columbia Court of Appeals.

In re KYA. B., In re K.B., and In re Kye.B. D.B., Appellant

No. 00–FS–1230, 00–FS–1231, 00–FS–1232. | Argued Dec. 2, 2003. | Decided Sept. 9, 2004.

Synopsis Background: District of Columbia filed petitions alleging three children were neglected. The Superior Court, District of Columbia, Kaye K. Christian, J., granted petitions. Mother appealed.

Holdings: The Court of Appeals, Terry, J., held that:

[1] evidence was sufficient to support finding that middle child was abused by mother, as to justify finding of neglect;

[2] evidence was sufficient to support finding that oldest child was in imminent danger of being abused and that child's sibling had been abused, as to justify finding of neglect; and

[3] evidence was not sufficient to support finding that youngest child was in imminent danger of being abused and that child's sibling had been abused, and thus did not justify finding of neglect.

Affirmed in part; reversed and remanded in part.

Attorneys and Law Firms

*467 David J. Ontell, Washington, appointed by the court, for appellant D.B.

Robert S. Becker, Washington, appointed by the court, for appellees Kya.B., K.B., and Kye.B.

Sheila Kaplan, Assistant Corporation Counsel, with whom Arabella W. Teal, Interim Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel at the time the brief was filed, were on the brief, for appellee District of Columbia. *

Before TERRY, Associate Judge, STEADMAN, Associate Judge, Retired, ** and KING, Senior Judge.

Opinion

TERRY, Associate Judge:

Appellant D.B. is the mother of three children, her daughter Kya.B. and her sons K.B. and Kye.B. 1 In this neglect proceeding, the trial court, after an evidentiary hearing, found that D.B. had abused Kya.B. and that Kya.B. was therefore a neglected child under D.C.Code § 16–2301(9)(A) (2001). 2 The court also found *468 that K.B. and Kye.B. were neglected children under

D.C.Code § 16–2301(9)(E) (2001), 3 concluding that they were “in imminent danger of being abused” because their sibling, Kya.B., had already been abused. The court committed all three children to the custody of the Department of Human Services and directed Court Social Services to oversee their treatment plan and determine whether the children could be placed with other family members. D.B. contends that there was insufficient evidence to permit a finding that Kya.B. was abused and insufficient evidence to prove that K.B. and Kye.B. were in imminent danger of being abused. We affirm the trial court's order with respect to Kya.B and K.B. We reverse the order as to Kye.B. (the youngest child) and remand the case to the trial court for further proceedings.

On March 30, 2000, Kya.B. arrived at her elementary school with a small laceration over her left eye and an abrasion on her right arm. Kya.B's teacher brought her to the school nurse, Selinda Boyd, for examination and treatment. Kya.B. told Ms. Boyd that the laceration over her eye occurred when her mother hit her “with a broom handle for not being able to locate her [school] uniform.” The abrasion on Kya.B.'s arm was in the healing stages, and Kya.B. told Ms. Boyd that she had received that injury when her mother repeatedly pinched her during a hair grooming session for failing to hold her head straight. Boyd also noticed “old injuries, scratches around [Kya.B.'s] neck on both sides,” in addition to the fresh injuries. Kya.B. said that the older injuries on her neck were inflicted by her mother when she had not held still during previous hair grooming sessions.

After examining Kya.B., Ms. Boyd called Child Protective Services, which immediately contacted the Youth and Family Services Division (“YFSD”) of the Metropolitan Police. The next day, March 31, Detective James Goldring of YFSD took all three children to District of Columbia General Hospital for an examination. As reported by Detective Goldring, 4 Kya.B.'s examination “revealed multiple healing scars on her head, and revealed multiple healed scars to her arms, back, right shoulder, neck, and face.” No scars were found on the other two children. Detective Goldring also interviewed Kya.B. and *469 K.B. about their mother's methods of discipline:

[Kya.B.] reported that her mother disciplines her with a belt, with her hand, or with a broom. She further reported that her mother also hits her brother [K.B.] with the belt, and that she hits [Kye.B.] with her hand. [K.B.] reported that his mother beats them with “belts, toys, brooms, and stuff.” [K.B.] also reported that [Kya.B.] was beaten on Wednesday [March 29, 2000] because she could not find her school uniform. Kya.B. told Detective Goldring that the old scratches around her neck were inflicted in January 2000 when D.B. grabbed her by the neck, choked her, and then threw her against the dresser in her bedroom because she could not locate a comb. On April 1, 2000, the District of Columbia filed three neglect petitions against D.B. (one for each child). The petitions alleged that D.B. physically abused her daughter, Kya.B, and that D.B.'s sons, K.B. and Kye.B., were in imminent danger of being abused. The trial court held an initial hearing that day and ruled that there was probable cause to believe that Kya.B. had been abused and that her siblings were in danger of future abuse. The court denied D.B.'s request to regain custody of her children. Court Social Services recommended that the children be placed with their respective fathers (each child has a different father) or other relatives, and the court agreed. The court also ordered psychological evaluations of D.B. and her children and directed that D.B.'s visits with her children be supervised until further notice.

About three months later, a different Superior Court judge held an evidentiary hearing on the three neglect petitions. Only two witnesses testified on the issue of neglect, Ms. Boyd and D.B., the children's mother. 5 D.B. stated that she disciplined her children by “tak[ing] things from them” and by punishing them physically. She explained that the physical punishment was normally in the form of spankings, but that sometimes she used objects, such as belts, on the two older children, Kya.B. and K.B. D.B. denied ever using a broom handle to punish Kya.B. or any of her children and said she never saw any marks on her children's bodies after disciplining them.

Concerning the events of March 29, D.B. testified that Kya.B. returned home from school with notes from her teachers because she was “being bad in school.” All three children soon began fighting with each other, and separating them from one another did not quell their dispute. In an effort to end the quarrel, D.B. “gave them all a spanking and told them to stop fighting.” She also told Detective Goldring that she had struck Kya.B. with a belt and that the belt “may have” hit Kya.B. in the head because the girl “was moving around.” Later in her testimony, however, she denied that possibility: “I hit her on the backside. I don't know how she could have got the bruise on her head.... I didn't even see the mark on her head. I didn't see it. So, no, I don't think I put it there. No.” D.B. gave Kya.B. a bath later that night and did not notice any marks on her body. 6

*470 At the conclusion of the hearing, the court found that Kya.B.'s injuries—the laceration over her left eye, the abrasion on her right arm, and the scratch marks around her neck—were inflicted by D.B. The court attributed the laceration above the eye to D.B.'s physical discipline. The court also credited Ms. Boyd's testimony that Kya.B. had told her that her mother hit her with a broom handle because Kya.B. “was unable to locate her school uniform.” The scratch marks on her neck and the abrasion on her arm were also inflicted by D.B., the court found, when Kya.B. “would not sit still or stationary while her mother combed her hair.” In making these findings, the court noted that while “physical discipline is not outlawed ... [t]he court certainly does not find appropriate the beating of a child with a broom stick handle, nor does the court find appropriate and lawful the scratching of a child around her neck as a means of discipline.” The court cited D.B.'s admission that “she does discipline the children with objects such as the belt” as additional support for its findings. It then concluded that the two boys, K.B. and Kye.B., “are in imminent danger of abuse, based on the abuse that this court has found that this mother has inflicted upon her [daughter],” and thus that “the children are neglected pursuant to [D.C.Code § 16–2301(9)(A) and (E) ].”

At the ensuing disposition hearing, all three children were committed to the custody of the Department of Human Services. The court directed Court Social Services to oversee their treatment plan and determine whether the children could be placed with other family members. These appeals followed.

[1] Appellant contends that the evidence was insufficient to support the trial court's finding that Kya.B. was abused because a finding of abuse requires cruelty of such a high magnitude “that court intervention needs little explanation.” She suggests that Kya.B.'s injuries and scars stem from an isolated instance of excessive physical punishment and that one single incident is insufficient for a finding of abuse. These arguments misperceive both the law 7 and the facts 8 of this case.

[2] [3] “In a child neglect proceeding, the District [of Columbia] has the burden of proving by a preponderance of the evidence that a child is neglected within the meaning of D.C.Code § 16–2301.” In re E.H., 718 A.2d 162, 168 (D.C.1998); accord, e.g., In re M.D., 758 A.2d 27, 31 (D.C.2000). In determining whether the government's proof complied with this standard, “we must consider the evidence in the light most favorable to the government, giving full play to the right of the judge, as the trier of fact, to determine credibility, weigh the evidence, and draw reasonable inferences.” In re S.G., 581 A.2d 771, 774 (D.C.1990) (citations omitted). Only when the trial court's judgment “is plainly wrong or without evidence to *471 support it” may we set it aside. D.C.Code § 17–305(a) (2001); see In re G.H., 797 A.2d at 683–684; In re M.D., 758 A.2d at 31.

[4] Kya.B. was correctly found to be a “neglected child” because she was seriously injured by her mother's unreasonable physical abuse. Though physical or mental discipline of a child is permissible in appropriate situations, the discipline “must be reasonable under the facts and circumstances of the case.” In re L.D.H., 776 A.2d 570, 575 (D.C.2001) (citations omitted); accord, In re G.H., 797 A.2d at 684 (citing Carpenter v. Commonwealth, 186 Va. 851, 861, 44 S.E.2d 419, 423 (1947) (punishment must be “within the bounds of moderation and reason”)). 9 See also Lee v. United States, 831 A.2d 378, 380–381 (D.C.2003) (rejecting claim by mother convicted of assault that she was exercising reasonable parental discipline when she struck her teenage daughter three times with a wooden dowel).

In this case we are satisfied that the evidence, viewed in the light most favorable to the government, was sufficient to permit the trial court to find by a preponderance that D.B. used unreasonable force against Kya.B. On March 30, when Ms. Boyd examined Kya.B., she had a fresh, bleeding cut over her left eye that was caused by her mother's striking her with a broom handle because she could not locate her school uniform. Kya.B. also had an abrasion on her arm that had been inflicted by her mother two days earlier, on March 28, when she would not sit still while her hair was being groomed. In addition, Kya.B. had scratch marks around her neck, again stemming from her mother's physical punishment during a previous hair grooming session. In short, there was evidence that on three separate occasions excessive corporal punishment by the child's mother had resulted in visible injuries—evidence of a pattern of excessive corporal punishment, not an isolated instance as appellant contends.

Also relevant is D.B.'s admission that she used objects such as belts to punish her two oldest children, and that she might strike them in places other than the backside if they were moving around while being hit. Furthermore, Kya.B. was sent to school while still bleeding from above her eye, a fact which suggests that D.B. was ignoring the laceration over the eye and thus not treating her daughter with the due care expected of a parent. Given all of these facts, the court could permissibly find that Kya.B. was a neglected child. Though D.B. denied causing any of the injuries that the school nurse observed on Kya.B.'s body, the court found her testimony incredible, as it was entitled to do. “Credibility determinations [are] for the judge, as the trier of fact, and we cannot second-guess them.” In re G.H., 797 A.2d at 684.

III

[5] Appellant contends that Ms. Boyd's testimony recounting Kya.B.'s statements to her, which described how Kya.B. was injured, should have been admitted only for “the purpose of showing why [Boyd] acted as she did” and should “not be admitted for the truth of the words” because the words were hearsay. At trial, however, appellant did not object to the admission of this testimony, and thus we review for plain error, if at all. Jones v. United States, 813 A.2d 220, 226 (D.C.2002); Williamson *472 v. United States, 445 A.2d 975, 980 n. 5 (D.C.1982); cf. Eldridge v. United States, 492 A.2d 879, 883 (D.C.1985) (“once hearsay evidence is admitted without objection, it may be properly considered by the trier of fact and given its full probative value” (citations omitted)); accord, e.g., Scales v. United States, 687 A.2d 927, 934 (D.C.1996). We find no plain error in the admission of Boyd's testimony; indeed, we find no error whatever.

[6] [7] Ms. Boyd's testimony concerning Kya.B's statements to her while receiving medical treatment would have been admissible under the medical diagnosis exception to the hearsay rule had an objection been made at trial. Though attributions of fault made to medical workers are generally excluded from the medical diagnosis exception, “statements [made to medical workers] about the cause of injuries fall within the medical diagnosis exception to the hearsay rule because explaining the cause of injuries may facilitate treatment.” Galindo v. United States, 630 A.2d 202, 210 (D.C.1993) (citations omitted). In addition, “statements attributed to the victim seeking medical treatment relating to the ‘psychological and emotional consequences' of the abuse, as well as the physical injuries, may also be admitted under the medical diagnosis and treatment exception to the hearsay rule.” Jones, 813 A.2d at 227 (citation omitted). Such statements are relevant to treatment in preventing “a reoccurence of the abuse.” Galindo, 630 A.2d at 210; see also Brown v. United States, 840 A.2d 82, 90 (D.C.2004) (following Galindo ).

Kya.B.'s statements to Ms. Boyd in the instant case fall within the holdings of Jones and Galindo. D.B. is the mother of the abused child Kya.B. and lives with her in the same household. Boyd was the treating nurse when Kya.B. came to her office for treatment of a bleeding laceration above her eye. Identifying D.B. as the cause of Kya.B.'s injuries was thus pertinent to medical treatment and important in preventing the injuries from recurring. Because these statements would surely have been admitted under the medical diagnosis exception had appellant's counsel raised an objection, the trial court did not err.

[8] [9] Appellant and the guardian ad litem contend on appeal that the evidence does not support a finding that either K.B. or Kye.B. was in imminent danger of being abused. The trial court ruled that K.B. and Kye.B. were in imminent danger of being abused “based on the abuse that this court has found that this mother has inflicted upon her child, [Kya.B.].” Read in context, this appears to have been essentially a per se finding that because Kya.B. was abused, the other children in the same household were thus in imminent danger of being abused, and hence that they could be adjudicated neglected. Recently, however, in In re Te.L., 844 A.2d 333, 343–344 (D.C.2004), we reiterated that there is no per se rule allowing a child to be adjudicated neglected (and thus to be removed from a home) simply because a different child within that home has been abused. A finding that a child is in imminent danger of being abused because another child in the same home has been abused “cannot be automatic.” Id. at 342; see In re S.G., 581 A.2d at 778. In other words, an adjudication of neglect under D.C.Code § 16–2301(9)(E) (2001), supra note 3—or under the amended version, D.C.Code § 16–2301(9)(a)(v) (2004 Supp.)—requires the court to make two separate and independent findings: first, that a sibling (or, since the amendment, another child in the same household) has been abused, and second, that the child in question is “in imminent *473 danger of being abused.” Moreover, an individualized finding of imminent danger must be made for each child. A finding of imminent danger does not necessarily follow from the fact that a sibling has been abused. “Rather, the court must be apprised of the ‘entire mosaic’ ... and must address the risks attendant on removing a child from his home as well as those involved in keeping the child where he or she is.” In re Te.L., 844 A.2d at 344 (citation omitted).

[10] The court's finding of neglect with regard to K.B., the oldest child, must be affirmed. There was evidence that D.B. was already physically mistreating him. D.B. admitted having beaten K.B. with a belt when he misbehaved and did not offer any reason for such a punishment. Because K.B. was suffering mistreatment at the hands of D.B. akin to that inflicted on Kya.B., the court had sufficient basis in the evidence to remove K.B. from D.B.'s care and custody.

[11] The adjudication of neglect with regard to Kye.B., however, must be reversed. While there may be some debate about the appropriateness of spanking a three-year-old, there is no evidence that these spankings were abusive or unreasonable in nature. D.B. even testified that she specifically did not use a belt on Kye.B. because he was younger than the other two children, evidence indicating that physical abuse was not imminent when he was removed from her custody. There was no contrary evidence of unreasonable or immoderate physical force directed or threatened toward Kye.B., and no other proof that he—as opposed to his two siblings—was in imminent danger.

Regrettably, much time has passed since the trial court ruled in this case. On remand, the court will have to make a new ruling as to Kye.B. based on the facts and law as they exist at the time of the remand proceedings. We are confident that the court will give fair consideration to all relevant factors and will reach a decision which protects and promotes the best interests of Kye.B. See In re C.T., 724 A.2d 590, 599–600 (D.C.1999) (entrusting remand proceedings to “the discretion and creativity of the trial court”).

In the cases involving the two oldest children, Kya.B. and K.B., the adjudications of neglect are affirmed. In the case of Kye.B., the youngest child, the judgment is reversed, and his case is remanded to the trial court for further proceedings consistent with this opinion.

So ordered.

Footnotes * While this appeal was pending, the title of the District's chief attorney was changed. The Corporation Counsel is now officially known as the Attorney General for the District of Columbia. See Mayor's Order No.2004–92 (May 26, 2004), 51 D.C. Register 6052. ** Judge Steadman was an Associate Judge of the court at the time of argument. His status changed to Associate Judge, Retired, on August 8, 2004.

1 At the time of the relevant events in this case, K.B. was approximately eight years old, Kya.B. was six and a half, and Kye.B. was three and a half. 2 D.C.Code § 16–2301(9)(A) (2001) provides: The term “neglected child” means a child ... who has been abandoned or abused by his or her parent, guardian, or other custodian[.] An “abused” child, in turn, is defined in part as “a child whose parent, guardian, or custodian inflicts ... physical or mental injury upon the child, including excessive corporal punishment ....” D.C.Code § 16–2301(23) (2001). After the events involved in this case, these definitions were amended by D.C. Law 14–206, 49 D.C. Register 7815 (2002); the amendments, however, have no effect on this appeal. The current versions are codified as D.C.Code § 16–2301(9)(a)(i) and (23) (2004 Supp.), respectively. 3 D.C.Code § 16–2301(9)(E) (2001) provides: The term “neglected child” means a child ... who is in imminent danger of being abused and whose sibling has been abused[.] This definition was also amended by D.C. Law 14–206, 49 D.C. Register 7815 (2002), but the amendment has no effect on this case. Of particular relevance here, the phrase “in imminent danger of being abused” appears in both the original statute and the amended version, which is codified as D.C.Code § 16–2301(9)(A)(v) (2004 Supp.). 4 Detective Goldring testified at the initial hearing on April 1, but not at the second hearing three months later. Our summary of the information he provided is taken from the neglect petition, which he signed under oath, and which is consistent with his testimony at the April 1 hearing. 5 K.B.'s father testified briefly, but only to acknowledge that K.B. was in fact his son. 6 D.B. also stated that Kya.B. “constantly” failed to tell the truth and that Kya.B. and K.B. would often fight with each other. “They punch, whatever, I have to separate them all the time.” She admitted that had “seen injuries on [Kya.B.],” but those injuries, she said, were the results of “fights at school” and falls both at school and at home. 7 We have stated that “excessive corporal punishment” within the meaning of D.C.Code § 16–2301(23), supra note 2, is determined by “whether the physical force used ... was ‘reasonable under the facts and circumstances of the case.’ ” In re G.H., 797 A.2d 679, 684 (D.C.2002) (citation omitted). Because our law uses a reasonableness standard for assessing excessive corporal punishment, there is no “level of magnitude” test as appellant maintains. See Newby v. United States, 797 A.2d 1233, 1243 (D.C.2002) (test is whether “the force used was immoderate or unreasonable”). 8 The evidence showed that the excessive corporal punishment which led to the finding of abuse in this case was not an isolated incident. 9 The recently amended statute, supra note 2, is more explicit. It provides that discipline must be “reasonable in manner and moderate in degree” and that it “does not include” such actions as “burning, biting, or cutting a child,” “striking a child with a closed fist,” or “using [a dangerous] weapon on a child.” D.C.Code § 16–2301(23)(B) (2004 Supp).

449 F.3d 127 United States Court of Appeals, District of Columbia Circuit.

Sharon Boone HENDERSON, Appellant v. GEORGE WASHINGTON UNIVERSITY d/b/a George Washington University Medical Center and Medical Faculty Associates, and Michael Salem, Appellees.

No. 05-7054. | Argued April 10, 2006. | Decided June 2, 2006.

Synopsis Background: Patient filed suit against doctor and university which employed him alleging that doctor violated the standard of care during performance of Roux-en-Y gastric bypass surgery. The United States District Court for the District of Columbia entered judgment following jury verdict in favor of defendants. Patient appealed.

[Holding:] The Court of Appeals, Edwards, Senior Circuit Judge, held that probative value of post-surgery report regarding another patient outweighed the potential for prejudice.

Judgment vacated; reversed and remanded.

*128 Appeal from the United States District Court for the District of Columbia (No. 02cv00181).

Attorneys and Law Firms

John D. Quinn argued the cause and filed the briefs for appellant.

James P. Gleason, Jr. argued the cause and filed the brief for appellees.

Before: GRIFFITH, Circuit Judge, and EDWARDS and SILBERMAN, Senior Circuit Judges.

Opinion

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge.

**174 After a seven-day trial, a jury found that defendant-appellee Michael Salem, M.D. (“Dr.Salem”) did not violate the standard of care during his performance of Roux-en-Y gastric bypass surgery on plaintiff-appellant Sharon Boone Henderson. Appellant now seeks to overturn the jury's verdict on the ground that the District **175 *129 Court improperly excluded evidence that supported her claim that Dr. Salem made a critical mistake during surgery. Appellant claims further that Dr. Salem's surgical error both breached the applicable standard of care and caused her not to be able to achieve anticipated weight loss. The District Court found that the disputed evidence-a post-surgery report relating to another patient of Dr. Salem's, along with related deposition testimony-had limited probative value that was significantly outweighed by the danger of unfair prejudice and the potential to confuse the jury.

We find that the District Court greatly overestimated the potential for prejudice and confusion, and seriously underestimated the probative value of the disputed post-surgery report in light of appellant's need to impeach and rebut the case presented by appellees as well as to rehabilitate her expert witness. Therefore, we vacate the jury verdict, reverse the judgment on the verdict, and remand the case for a new trial.

I. BACKGROUND

A. Henderson's Surgery Sharon Boone Henderson weighed 367 pounds by the time she was 34 years old. After attempting and failing to lose weight by resort to numerous diets, Henderson decided to undergo Roux-en-Y gastric bypass surgery. In the Roux-en-Y procedure, a small “new” stomach or “pouch” is surgically formed from the top portion of the existing stomach by using several rows of surgical staples to separate the pouch from the remainder of the stomach. After the pouch is formed, the small intestine is severed a few inches below the bottom of the “original” stomach and then attached to the pouch, thereby permitting food to bypass the main stomach chamber.

The new connection formed between the pouch and the small intestine is called an “anastomosis.” The anastomosis and truncated stomach pouch are designed to reduce food intake by creating a sense of fullness. Roux-en-Y surgery also restricts the ability of the digestive tract to absorb nutrients from the food being consumed.

Henderson's Roux-en-Y surgery was performed at George Washington University Medical Center (“GW Medical Center”) by Dr. Salem on December 12, 1997. Within the first six weeks of her surgery, Henderson lost 60 to 65 pounds. Sometime during the following spring or summer, however, Henderson began to notice that the small portions of food that were supposed to satisfy her appetite did not do so. Despite feeling as if she was “starving [her]self,” Trial Tr. (1/24/05) at 377, Henderson nevertheless stuck to her small portion regimen through the remainder of 1998. By the end of 1999, her weight had dropped to 250 pounds.

In early 2000, however, Henderson suddenly gained 25 pounds. As a result, she attempted to contact Dr. Salem to discuss her situation. When she called GW Medical Center, however, she was informed that he was no longer employed there. Instead, she was referred to Dr. Paul Lin.

Henderson met with Dr. Lin in April 2000, at which time he suggested that perhaps Henderson's stomach pouch had expanded. He noted that it might be possible to remedy this problem with a second procedure. Henderson agreed to the follow-up surgery, which Dr. Lin performed in October 2000. During the procedure, Dr. Lin reduced the size of Henderson's gastric pouch from 60 to 10 cubic centimeters, although he did not reduce the diameter of her anastomosis.

In 2003, Henderson had an endoscopy done to assess the effects of her second **176 *130 surgery. Dr. Ahmed Hegab, the gastroenterologist who performed the endoscopy, informed Henderson that, in addition to having acid reflux disease, he believed that her anastomosis was too large for effective weight loss. He suggested the possibility of further surgery. At the time of trial, Henderson had yet to pursue that course.

B. Pre-Trial Activities Henderson, along with two co-plaintiffs, Helen Jones and Janice Grant, filed suit against Dr. Salem and George Washington University on February 1, 2002. Jones and Grant were also former patients of Dr. Salem's, undergoing their own Roux-en- Y surgeries on April 28, 1998 and February 3, 1999, respectively. The three plaintiffs together alleged that Dr. Salem used improper surgical techniques, resulting in stomach pouches and anastomoses that were too large to permit them to achieve their desired weight loss.

In response to the complaint, appellees filed, inter alia, a motion to sever the three charges. On January 19, 2004, the District Court found that, “[a]lthough each trial will involve some overlap of expert testimony, the facts and circumstances of each plaintiff's claim vary so substantially” that the requirements of Federal Rule of Civil Procedure 20-governing permissive joinder of parties-were not met. Grant v. Salem, CA No. 02-181, Mem. Op. at 2 (D.D.C. Jan. 19, 2004), Joint Appendix (“J.A.”) 45. Thus, the court ruled that “the three claims in this case are misjoined and shall be severed going forward.” Id.

By the time the motion to sever was decided, Dr. Salem had already been deposed. The parties anticipated the court's severance ruling, however, and thus agreed to segregate the deposition questions to the circumstances of each plaintiff wherever possible. Nevertheless, one overlapping line of questioning involved a post-surgery report prepared by Dr. Paul Steinwald, the surgical resident who worked with Dr. Salem on the Helen Jones surgery (“Jones Report”). The Jones Report stated, inter alia, that Dr. Salem had created a three-centimeter anastomosis during the surgery-a size that, if measured internally, is generally considered to violate the standard of care. During his deposition, Dr. Salem conceded that he “consistent[ly]” made anastomoses the same size during each surgery. Salem Dep. at 39, J.A. 376. He acknowledged that the three-centimeter characterization in the Jones Report was “accurate,” although he qualified his answer by suggesting that the report described the external anastomosis measurement; Dr. Salem speculated that the internal measurement was likely “between a centimeter or more.” Id. at 46, J.A. 383.

C. The Trial Recognizing the potential importance of the three-centimeter description in the Jones Report, Henderson pressed from the beginning of trial to have Dr. Salem's deposition with attached exhibits, including the Jones Report, included in the record. Appellees sought to exclude the Jones Report and the relevant deposition testimony of Dr. Salem, arguing that those pieces of evidence would unfairly bootstrap the alleged negligence relevant only to the Helen Jones litigation into the case at bar. Appellees also contended that appellant was attempting to omit deposition passages where Dr. Salem explained that he made the external diameters of his anastomoses three centimeters, while the internal diameters were generally one centimeter.

At the outset of appellant's case, the District Court ruled that, given the early stage of the trial and therefore the court's unfamiliarity with the depositions and the **177 *131 lines of inquiry to be pursued by the parties, it was appropriate to deny appellant's request to admit the Jones Report and attached deposition testimony. In making that determination, the trial judge stated that he was “concerned that something taken out of context could in some way ... unfairly prejudice the Defendant and confuse the jurors.” Trial Tr. (1/19/05) at 92. More specifically, the judge stated:

Now, the Court is concerned, because this deposition preceded its ruling on severance, that any reference in the depositions to multiple cases could lead the jurors to the natural inference, to some degree, that the lawsuit initially was a lawsuit with regard to more than one case. And that-for reasons which they, of course, are not privy to nor can be privy to, that they may be in some way, through their own natural inferences, prejudiced by thinking that, oh, there is more than one suit against this doctor; this is only one of a series of suits, which was the very prejudice, in no small part, that this Court [was] concerned about avoiding by granting the Severance Motion.

Id. at 93-94. In an attempt to mitigate the effect of this ruling on Henderson, the District Court permitted her to ask questions about the contents of the Jones Report as “hypotheticals.” The District Court said:

[Henderson's counsel] will be free, in crafting his hypotheticals, to use the same facts that are in the record as it related to the Jones case, without identifying the Jones case, but whatever the facts are that were in the Jones case, he can put that into his hypothetical-again, without specifically referencing the Jones case.

Id. at 94. The District Court concluded by noting that it would be willing to revisit the issue after the testimony of appellant's expert witness, Dr. James Balliro. Thus, “the issue of what can be read ... from the depositions of Dr. Salem-what can be read to this jury such that there is no danger of a prejudicial inference being drawn by the jury is still an open question.” Id.

Following appellees' cross-examination of Dr. Balliro, Henderson again sought to admit the previously rejected Jones Report and relevant deposition testimony of Dr. Salem. She noted that, during cross-examination, appellees asked Dr. Balliro a series of questions about how he arrived at his opinion in a 2003 report that Dr. Salem had constructed a three-centimeter anastomosis. Appellees noted specifically that there was nothing in Henderson's post-surgery report to indicate the size of her anastomosis. According to Henderson, this line of questioning unfairly undermined Dr. Balliro's credibility, because he was unable to state that, in part, he explicitly relied on the Jones Report in drawing the conclusion that Henderson's anastomosis was three centimeters. The District Court again refused to admit the Jones Report, and instead stated that, “to the extent what you are pointing out is something you can go into on Redirect, you are going to have free reign to do it. You can rehabilitate.” Trial Tr. (1/21/05) at 265.

Soon after this instruction, appellant asked Dr. Balliro on redirect examination about his previous exchange with defense counsel on cross-examination:

Q: Thank you. Now, you were asked some questions about what you relied on for the opinion that Dr.-in your report, that Dr. Salem fashioned a 3-centimeter anastomosis.

A: Yes.

Q: And did you rely on Dr. Salem's deposition for that opinion?

A: Yes.

*132 **178 Q: And did you rely on another operative report referred to in that deposition?

Id. at 280-81. Defense counsel objected before Dr. Balliro could respond to the last question, and the parties conducted a bench conference on the record. Henderson's counsel indicated that he thought his line of questioning was “rehabilitative” and therefore had been sanctioned by the court. The trial judge had a different view, however, responding that rehabilitation did not include “any drifting into this other operative report which could have unnecessary ... prejudicial effect on the Defendant.” Id. at 285.

Henderson attempted yet again to introduce the Jones Report following the defense's direct examination of Dr. Ronald Chamberlain, GW Medical Center's chief surgical resident at the time Henderson's original Roux-en-Y surgery was performed. Dr. Chamberlain testified that he served as Dr. Salem's first assistant in approximately 10 to 15 Roux-en-Y surgeries, including Henderson's. He maintained that on each occasion they attempted to make the anastomosis between 1 and 1.5 centimeters in diameter. Henderson used this testimony to renew her effort to admit the Jones Report, arguing that Dr. Chamberlain was making a claim about Dr. Salem's standard practice that appeared to run counter to what was clearly stated in the report. The District Court again denied Henderson's request, finding that Dr. Chamberlain's testimony was limited only to his experience with Dr. Salem, and he was not the resident who assisted Dr. Salem during the Jones surgery. Thus, the District Court ruled that Henderson's cross-examination must be limited to Dr. Chamberlain's experience working on surgeries with Dr. Salem.

In a final attempt to convince the trial judge to admit the Jones Report, Henderson argued that the admission of the evidence caused no prejudice to defendants, let alone unfair prejudice. She noted that Dr. Salem's deposition made no mention of other litigation, and, even if it did, the parties could craft “curative language” to ensure that no juror could infer that Dr. Salem was subject to separate lawsuits.

The District Court found this argument unavailing. The trial judge indicated that his ruling would not change, and added that the Jones Report was in no way crucial to Henderson's case. He specifically stated that Henderson was pursuing a number of avenues to demonstrate that Dr. Salem violated the standard of care, so that by denying the admission of these pieces of evidence, only a small portion of her case was affected.

Following a seven-day trial, on January 27, 2005, the jury returned a verdict finding that Dr. Salem had not breached the standard of care owed to Henderson. Henderson now appeals, seeking a reversal of the jury's verdict and a remand for a new trial.

II. ANALYSIS

A. Standard of Review A trial court may prevent the introduction of evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” FED. R. EVID. 403. In considering a trial judge's application of Rule 403, the Supreme Court has stated the standard of review as “abuse of discretion.” See, e.g., Old Chief v. United States, 519 U.S. 172, 191, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997); United States v. Abel, 469 U.S. 45, 55, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). The **179 *133 Court has added no qualifiers. This court, however, has described the standard of review applicable to Rule 403 judgments as both “abuse of discretion” and “grave abuse of discretion.” Compare United States v. King, 254 F.3d 1098, 1100 (D.C.Cir.2001) (abuse of discretion), and United States v. Evans, 216 F.3d 80, 87 (D.C.Cir.2000) (same), with United States v. Watson, 409 F.3d 458, 463 (D.C.Cir.2005) (grave abuse), and United States v. Whitmore, 359 F.3d 609, 619 (D.C.Cir.2004) (same). It is clear that there is no material difference between “abuse of discretion” and “grave abuse of discretion” with respect to the standard of review relating to judgments rendered under Rule 403. Rather, under either formulation, the appellate court is extremely wary of second-guessing the legitimate balancing of interests undertaken by the trial judge. We defer no more and no less under either characterization of the standard of review. “Grave abuse of discretion” is nothing more than a shorthand expression of wariness.

And the court's use of the word “grave” certainly does not suggest an insurmountable standard of review. In the Watson decision, for example, we used the phrase “grave abuse,” and yet noted that, in applying Rule 403, the District Court must be “cautious” against excluding evidence “where a party is seeking to impeach a witness whose credibility could have an important influence on the outcome of the trial.” 409 F.3d at 463. Likewise, in United States v. Cassell, 292 F.3d 788 (D.C.Cir.2002), which also employs the “grave abuse” language in describing the standard of review with respect to judgments under Rule 403, the decision tellingly states that “Rule 403 tilts, as do the rules as a whole, toward the admission of evidence in close cases.” Id. at 795 (quotation and citation omitted). “In performing the balancing test required under Rule 403, it is a sound rule that the balance should generally be struck in favor of admission when the evidence indicates a close relationship to the event charged.” Id. (quotation and citation omitted).

In short, in all cases arising under Rule 403, we assume that the trial judge generally is in the best position to balance the probative value of the disputed evidence against the risks of prejudice and confusion and, thus, retains broad discretion to decide the matter. We have never suggested, however, that the trial judge retains unfettered discretion in the application of Rule 403. When the District Court excludes admissible evidence based on an understatement of the probative value of the excluded evidence, a miscalculation of the “danger of unfair prejudice, confusion of the issues, or misleading the jury,” or an erroneous calculation of whether the “probative value” of the excluded evidence is “substantially outweighed” by these dangers (or by “considerations of undue delay, waste of time, or needless presentation of cumulative evidence”), then the trial court's judgment under Rule 403 is subject to reversal.

B. The Alleged Dangers of Unfair Prejudice and Confusion of the Jury [1] The District Court maintained throughout trial that it was concerned that the admission of the Jones Report would unfairly prejudice appellees and potentially lead to jury confusion. The danger presented by those issues, it believed, would substantially outweigh any probative value offered by the Jones Report. In terms of unfair prejudice, the District Court was of the opinion that the introduction of the Jones Report might undermine the court's earlier decision to sever the Henderson, Grant, and Jones malpractice claims. This was a possibility, according to the District Court, because the admission of a post- **180 *134 surgery report relating to someone other than Henderson might lead the jurors to conclude that there was also another lawsuit pending against Dr. Salem. As for jury confusion, the District Court stated, with little explanation, that the jurors might have difficulty sorting through the distinct issues relevant to the Jones and Henderson surgeries.

Appellant does not suggest that it would not be prejudicial for the jury to learn about the other lawsuits; rather, her claim is that the danger of that outcome was quite small. At trial, appellant noted that nothing in the relevant portions of the Jones Report and in Dr. Salem's corresponding deposition testimony implied that there had been other litigation. In addition, appellant stated that, as a precaution, the trial court could have issued a “curative instruction” to temper any potentially prejudicial language in Dr. Salem's deposition testimony.

Henderson's argument is compelling. On the record at hand, there is little reason to believe that the admission of the Jones Report would have led to the outcomes feared by the District Court. The introduction of the five-page report would have been for the limited purpose of demonstrating that Dr. Salem had in fact made a three-centimeter anastomosis in another surgery. Nothing in the report refers to other litigation. Moreover, in the relevant portions of the disputed deposition testimony, neither Henderson's counsel nor Dr. Salem suggests that another lawsuit has been filed. Neither the Jones Report nor the related deposition testimony offers the slightest hint that Jones had filed a lawsuit against Dr. Salem.

In short, the District Court's concern over unfair prejudice is unfounded. And appellees' bald assertion that the introduction of the Jones Report and the discussion of it in Dr. Salem's deposition would lead jurors to unfairly prejudge Dr. Salem is specious. The Jones Report undoubtedly would have assisted Henderson in her cause of action against Dr. Salem. But that is the function of probative evidence, and it surely is not the measure of “unfair prejudice” under Rule 403.

The District Court's concern over possible jury confusion is equally misplaced. Appellant made it clear that the Jones Report would be offered to make a limited, easily understood point relating to the size of the anastomosis described on page three of the report. There was no serious possibility that the jury would confuse the Jones and Henderson surgeries, because, as appellant made clear, the sole question posed by the Jones Report was whether the language used to document the Jones surgery described a three-centimeter anastomosis measured internally or externally.

It is extremely unlikely, as appellees contend, that the admission of the Jones Report would lead to a “trial within a trial.” Dr. Salem admitted that the Jones Report was dictated and recorded accurately, see Salem Dep. at 46, J.A. 383, so appellees have raised no issue over the authenticity or veracity of the report. The only dispute raised by the report is whether it describes the internal or external diameter of the anastomosis. This is a matter about which experts testify all the time in jury trials. We assume that jurors will comprehend what they hear, especially as the issues are amplified by direct, cross-, and redirect examination, jury instructions, and closing arguments.

Appellees argue that if the Jones Report had been admitted into evidence, they would have been forced to call Dr. Paul Steinwald, the surgical resident who assisted Dr. Salem during the Jones surgery, as if to suggest that his testimony might be too complex for the jury to understand. This argument borders on frivolous. If **181 *135 called, Dr. Steinwald's testimony would have focused on the question of what the reference to three centimeters in the Jones Report was meant to convey. This certainly would not have been unduly confusing to the jury, any more than the other technical information offered by appellees to defend themselves against Henderson's claim.

Finally, relying upon Weil v. Seltzer, 873 F.2d 1453, 1460-61 (D.C.Cir.1989), appellees contend that “evidence concerning a doctor's [treatment of] former patients .... should ... be[ ] analyzed under Rule 404(b) to see if it qualifie[s] for admission under Rule 404(b)'s limited purposes.” Br. for Appellees at 17. Assuming, as the parties do here, that a physician's prior conduct does not rise to the level of “the nonvolitional, habitual type that ensures its probative value” under Rule 406 as habit evidence, see Weil, 873 F.2d at 1461, and speaking only with respect to the Jones Report, we agree. Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith,” although “former patient evidence may ... be [ ] admissible for other purposes, i.e., to show plan, knowledge, identity, or absence of mistake or accident,” Weil, 873 F.2d at 1461 (discussing Rule 404(b)). In Weil, the estate of a doctor's former patient sued for wrongful death, because the patient had been given steroids for a prolonged period while having been led to be believe he was receiving antihistamines. Id. at 1456. Five other patients testified that the doctor had also prescribed steroids for

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Henderson v. George Washington University, 449 F.3d 127 (2006) 371 U.S.App.D.C. 173, 70 Fed. R. Evid. Serv. 331 them while representing the drugs to be antihistamines or decongestants. Id. at 1460. After concluding that prescribing steroids did not amount to a habit under Rule 406, we noted that the plaintiff was essentially trying to introduce “bad acts” testimony under Rule 404(b): “This evidence of [the doctor's] treatment of the former patients was clearly an attempt to show that [the doctor] treated Weil in conformity with his treatment of the five testifying patients.” Id. at 1461.

If Henderson only possessed and sought to introduce the Jones Report, given the specific content of that report, Weil would control and this matter would be an easy one under Rule 404(b). In other words, Henderson could not introduce the report to show that because Dr. Salem improperly created a three-centimeter anastomosis in another patient, he must have done so in an unrelated surgery as well. See id. (evidence that is not admissible under Rule 404(b) would be “undoubtedly prejudicial to [the] defense”). What makes the issue of “unfair” prejudice more challenging in this case is, as we shall discuss, Dr. Salem's having tied the size of Henderson's anastomosis to the size of Jones' anastomosis. Cf. id. (“For the former patient testimony to be at all probative it must show that [the doctor] responded the same way with each patient as he did with the testifying patient.”). We need not, and do not, express any opinion, however, on whether, given Dr. Salem's testimony, appellees would suffer unfair prejudice with the admission of the Jones Report as part of Henderson's direct case, because (1) the District Court did not reach an evidentiary ruling considering Rule 404(b) as part of its Rule 403 balancing, and (2) regardless of whether our standard of review would permit reversal for keeping the Jones Report out as affirmative evidence, it most assuredly was an abuse of discretion to keep the Report out as impeachment, rebuttal, and rehabilitative evidence in light of appellees' subsequent conduct, as shall become clear.

In sum, there is very little to support the District Court's findings that admission of the Jones Report and the related **182 *136 deposition testimony would result in “danger of unfair prejudice, confusion of the issues, or misleading the jury.” The record in this case simply does not bear out the concerns raised by appellees and credited by the District Court. The only remaining question, then, is whether the District Court acted within its permissible discretion in finding that the probative value of the excluded evidence was so slight that it was “substantially outweighed” by the insignificant indications of possible prejudice and confusion to the jury. The record in this case clearly belies this conclusion.

C. Probative Value of the Excluded Evidence The District Court found that the Jones Report had limited probative value, in large part, because it believed that Henderson could achieve her evidentiary objectives by posing “hypothetical” questions based on the text of the report without mentioning the report's existence. The District Court further minimized the probative value of the Jones Report by suggesting that Henderson had no great need to introduce the report. On this score, the trial court perceived that Henderson had other evidence beyond the report to support her anastomosis theory, and also observed that an oversized anastomosis was just one of four theories of liability she furthered.

Appellant contends that the District Court apparently misunderstood the importance to plaintiff of being able to rely on the Jones Report itself, not merely “hypothetical” questions based on the text of the report. In other words, Henderson forcefully argues that, in presenting her case to the jury, “hypothetical” questions drawn from an unidentified report were not a fair or reasonable substitute for introduction of the Jones Report itself. Indeed, appellees obviously understood this, because they fought vigorously to exclude the Jones Report. Appellant also argues that the District Court greatly miscalculated the value of the other evidence supporting her claim about the size of the anastomosis.

In challenging the District Court's findings, appellant claims that there are four ways in which the Jones Report has significant probative value: (1) as affirmative evidence that Dr. Salem made her anastomosis three centimeters; (2) to impeach the testimony of Dr. Salem that he made her anastomosis 1 to 1.5 centimeters; (3) to rebut the testimony of Dr. Chamberlain, who attempted to establish that Dr. Salem always made anastomoses 1 to 1.5 centimeters; and (4) to rehabilitate Dr. Balliro's credibility after he was “sandbagged” by appellees on cross-examination. Again, appellant's arguments are compelling.

1. Evidentiary Alternatives to the Admission of the Jones Report

There is no doubt that the District Court placed undue weight on appellant's ability to ask “hypothetical” questions related to the content of the Jones Report. The trial judge stated:

It seems to me that there is no necessary prejudice to the Plaintiff's case by confining Dr. Balliro's examination to hypotheticals which can allude to the same facts that are the facts that underlie the operative report in Jones, without identifying the Jones case, without specifically pointing to the Jones case and creating any risk that the jurors might see that the deposition was not a deposition just about the [Henderson] case but about a couple of other cases.

Trial Tr. (1/19/05) at 93. Henderson maintains, however, that by restricting her expert, Dr. Balliro, to analysis emanating from a question based on a “hypothetical,” **183 *137 the District Court rendered his testimony “ pointless.” We agree. Dr. Balliro's testimony amounted to an opinion that if the surgical procedure described in the hypothetical was performed during the Henderson surgery, then Dr. Salem constructed a three-centimeter anastomosis, measured internally, in Henderson. Without admitting the Jones Report, or allowing Dr. Balliro to state that the “hypothetical” description was taken from a post-surgery report relating to another procedure performed by Dr. Salem, there was no way to connect the Jones Report language with Dr. Salem's deposition testimony that he always makes his anastomoses the same size. Thus, the hypothetical approach mandated by the District Court was a meaningless alternative to admitting the Jones Report.

[2] We also find that the District Court placed far too much weight on the value of the endoscopy film. It is well established that under Rule 403, a court should weigh the probative value of evidence in light of appropriate evidentiary alternatives. See Old Chief, 519 U.S. at 182-85, 117 S.Ct. 644; see also 22 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE § 5214, at 269 (1978) (“The prejudice to an opponent can be said to be ‘unfair’ when the proponent of the evidence could prove the fact by other, non-prejudicial evidence.”). However, evidentiary alternatives are relevant only when introduction of the preferred evidence would result in prejudice. As discussed above, the record here does not support the conclusion that introduction of the Jones Report would have resulted in cognizable prejudice to appellees or caused confusion in the jury.

[3] In any event, even if we assume, arguendo, that introduction of the Jones Report might have been prejudicial, we still must consider whether the alternative evidentiary avenues open to appellant offered substantially the same or greater probative value but a lower danger of unfair prejudice. As the Court noted in Old Chief,

As for the analytical method to be used in Rule 403 balancing ... [a] court would decide whether a particular item of evidence raised a danger of unfair prejudice. If it did, the judge would go on to evaluate the degrees of probative value and unfair prejudice not only for the item in question but for any actually available substitutes as well. If an alternative were found to have substantially the same or greater probative value but a lower danger of unfair prejudice, sound judicial discretion would discount the value of the item first offered and exclude it if its discounted probative value were substantially outweighed by unfairly prejudicial risk.... [T]he judge would have to make these calculations with an appreciation of the offering party's need for evidentiary richness and narrative integrity in presenting a case, and the mere fact that two pieces of evidence might go to the same point would not, of course, necessarily mean that only one of them might come in. It would only mean that a judge applying Rule 403 could reasonably apply some discount to the probative value of an item of evidence when faced with less risky alternative proof going to the same point.

519 U.S. at 182-83, 117 S.Ct. 644. In other words, “[t]he probative worth of any particular bit of evidence is obviously affected by the scarcity or abundance of other evidence on the same point.” Id. at 185, 117 S.Ct. 644 (quotation and citation omitted).

In this case, the District Court apparently thought that appellant could have **184 *138 made use of endoscopy pictures to prove her case and thus avoid having to introduce the Jones Report. There are two problems with this assumption. First, there was no way for an expert to conclusively determine the size of the anastomosis in the film. As Dr. Balliro noted at trial,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Henderson v. George Washington University, 449 F.3d 127 (2006) 371 U.S.App.D.C. 173, 70 Fed. R. Evid. Serv. 331 the film contained no reference points indicating how to assess the relative size of the magnified stomach area. Moreover, Dr. Balliro admitted that he could not even “be 100 percent sure” that he could identify the anastomosis on the endoscopy film. See Trial Tr. (1/21/05) at 231. Second, assuming that the anastomosis could have been identified, this would not have given appellant the probative evidence that she needed. Henderson's endoscopy was done approximately seven years after her initial surgery. Experts on both sides confirmed that the anastomosis could have expanded during the seven-year interval between the surgery and the trial. Therefore, even if her expert could have testified with certainty that the anastomosis in the film was three centimeters, this would have been, at best, very weak evidence that Henderson's anastomosis was three centimeters immediately after her surgery.

The District Court also misconceived the number of distinct theories of liability appellant was pursuing. The trial judge identified what he believed to be four breaches of the standard of care advanced by plaintiffs:

One is the size of the pouch. One is the positioning of the staple line.... The size of the anastomosis is yet another. And then the length of the Roux-en tube ... is yet another theory under which you had an expert who sat right there and said the standard was violated ...-that would be four things.

Trial Tr. (1/24/05) at 369. In fact, appellant was pursuing only two serious surgical missteps-one involved the size of the anastomosis, and the other concerned the size of the stomach pouch. Appellant's counsel discussed this in conference with the trial judge, see id., and reiterated the point during his summation to the jury, see Trial Tr. (1/26/05) at 709-10.

Based on the foregoing, it is apparent that the District Court placed too much emphasis on alleged alternatives to introducing the Jones Report. Appellant did not have strong evidence outside of the Jones Report to support her anastomosis case, nor did the “hypothetical” avenue devised by the District Court cure that problem. In other words, unless the Jones Report is utterly lacking in probative value, there is nothing to indicate that appellant had evidentiary alternatives that offered “substantially the same or greater probative value” as the report. We turn now to the probative value of the Jones Report itself.

2. Affirmative Evidence According to appellant, the Jones Report is a clear representation that, in a Roux-en-Y surgery, Dr. Salem made a three- centimeter anastomosis. Based on the connection between the Jones Report and Dr. Salem's deposition, during which he said that, in surgery, he always made his anastomoses the same size, appellant contends that this gives strong evidence of the fact that the anastomoses in the Jones and Henderson surgeries were the same, i.e., three centimeters. Henderson characterizes this evidence as “the most probative evidence on the key issue in th[e] case.” Br. for Appellant at 22-23.

As affirmative evidence, the Jones Report and corresponding deposition testimony by Dr. Salem clearly has probative value, although to what degree is unclear. Immediately following Dr. Salem's answer that he made his anastomoses the same **185 *139 size every time, he qualified that statement by claiming that he “generally” made them one centimeter. See Salem Dep. at 39, J.A. 376. Dr. Salem also conceded that the Jones Report was accurate, but clarified that the three-centimeter anastomosis described in the report was measured from the outside and not the inside-accounting for the size discrepancy. While that explanation is subject to debate, its existence may limit the persuasiveness of the apparent three-centimeter “admission.” In other words, although the Jones Report is probative, it is not necessarily conclusive affirmative evidence supporting Henderson's case.

If the only issue here concerned whether the District Court abused its discretion in denying the Jones Report as affirmative evidence at the start of appellant's case, then the matter might be close. But Henderson sought to introduce the Jones Report not just as affirmative evidence in support of her cause of action, but also for purposes of impeachment, rebuttal, and rehabilitation. On these scores, it cannot be seriously doubted that the Jones Report is highly probative and not substantially outweighed by any dangers of unfair prejudice, confusion of the issues, or misleading the jury.

3. Impeachment, Rebuttal, and Rehabilitative Evidence

Appellant contends that the District Court should have permitted the Jones Report and relevant deposition testimony to be introduced in response to the case appellees presented at trial. Specifically, appellant contends that the probative value of the Jones Report was obvious as it related to her need to impeach and rebut the testimony offered by Dr. Salem and his colleague, Dr. Chamberlain, as well as to rehabilitate Dr. Balliro. We agree.

When putting on their case at trial, appellees made every effort to establish that Dr. Salem routinely made his anastomoses 1 to 1.5 centimeters in diameter. Dr. Salem stated this himself, and Dr. Chamberlain, the former chief resident at George Washington Medical Center, also testified as such. Specifically, Dr. Chamberlain offered that in his “10 to 15 times” participating in Roux- en-Y surgeries with Dr. Salem, it was Dr. Salem's common practice “to make the anastomosis between 1 and 1-1/2 centimeters in size.” Trial Tr. (1/21/05) at 310. Dr. Chamberlain asserted that this “would be the size we try to do every time.” Id. at 311.

The probative value of the Jones Report to rebut the testimony of Dr. Salem and Dr. Chamberlain is undeniable. The Jones Report on its face directly contradicts Dr. Salem's claim that he always made his anastomoses 1 to 1.5 centimeters. In addition, the need for and relevance of the Jones Report was heightened when appellees attempted to corroborate Dr. Salem's claim of consistency through the testimony of Dr. Chamberlain.

Appellees argue that since Dr. Salem made the same interior/exterior measurement distinction in his deposition that he did at trial, the Jones Report was consistent and therefore would not impeach his testimony. This claim has no merit. It is an open question whether the internal/external distinction is valid. The language describing Helen Jones' anastomosis cuts against Dr. Salem's attempt to explain away the three-centimeter anastomosis as being measured externally.

Appellant presents an even stronger case for admission of the Jones Report to rehabilitate her expert witness, Dr. Balliro. Appellant alleges that, both during cross-examination and in their closing argument, appellees improperly used the unavailability **186 *140 of the Jones Report to discredit Dr. Balliro.

On cross-examination, the specter of the Jones Report arose in the following exchange between defense counsel and Dr. Balliro:

Q: Doctor, I ask this for the record, but you were not present during the surgeries that were performed on Mrs. Henderson, correct?

A: Correct.

Q: But in the report that you authored back in January of 2003, what you indicated was that the anastomosis was certainly no less than 3 centimeters in diameter, did you not?

A: Yes, but I had evidence that you are aware of as to why that was, in fact, the case.

Q: Now, the specific dimension of the size or the width of the anastomosis is not described in the [Henderson] operative note, is it, sir?

A: Yes, sir, that is not the evidence to which I am referring.

Q: Excuse me, Doctor, can you follow my question?

Trial Tr. (1/21/05) at 224-25. From the above exchange, it is clear, as appellant argues, that appellees used the court's previous exclusion of the Jones Report-on which Dr. Balliro relied in determining that the anastomosis was three centimeters-to destroy his credibility.

Appellees followed this same strategy, taking it one step further, during their summation to the jury. Appellees' counsel argued to the jury,

as I have pointed out, not only do we know what the anastomosis size was now, we know that what the Plaintiff basically has done is tried to create the facts to fit the theory of the case. And when [Plaintiff's counsel] hasn't been able to change the facts well enough to fit the theory, he disregards the facts and he makes up 3 centimeters. I submit to you that's not fair.... [I]t is not fair to make them up.

Trial Tr. (1/26/05) at 744. Had the Jones Report been in evidence, appellees could not have “sandbagged” appellant in this manner. They knew that the Jones Report was excluded, however, and opportunistically used that ruling not only to shield themselves from potentially damaging evidence, but also to use it as a sword to slice through the foundation of much of appellant's case.

[4] Appellees respond that the evidence has no foundation for admission for rehabilitative purposes because appellant failed to meet the threshold for the “curative admissibility” doctrine. Under this doctrine, “the introduction of inadmissible or irrelevant evidence by one party justifies or ‘opens the door to’ admission of otherwise inadmissible evidence.” United States v. Brown, 921 F.2d 1304, 1307 (D.C.Cir.1990). In this case, appellees assert that their questioning of Dr. Balliro was strictly limited to the existence, or lack thereof, of a reference to a three-centimeter anastomosis in the Henderson post-surgery report. Thus, they claim that they did not “open the door” to the admission of otherwise inadmissible evidence, because they never mentioned the Jones Report. This argument is entirely unconvincing.

[5] There is little question that this is the kind of situation that the “curative admissibility” doctrine sought to “cure.” As one of our sister circuits has noted, not only is the trial court granted discretion to permit a party to introduce otherwise inadmissible evidence on an issue “when the opposing party has introduced inadmissible evidence on the same issue,” but it may also do so “when it is needed to rebut a **187 *141 false impression that may have resulted from the opposing party's evidence.” United States v. Rosa, 11 F.3d 315, 335 (2d Cir.1993). In this instance, appellees' disingenuous use of the District Court's inadmissibility ruling put Dr. Balliro, and, in turn, appellant, in an untenable position. Appellees could have supported their case just as forcefully by limiting their cross-examination to the endoscopy film and to whether Henderson's post-surgery report indicated a three-centimeter anastomosis. The fact that they went well beyond this, gratuitously undercutting Dr. Balliro, should have led the District Court-buttressed as well by appellant's need of the Jones Report for impeachment and rebuttal-to allow the admission of the report.

D. Abuse of Discretion In a case of this sort, where (1) the excluded evidence goes to the heart of a party's case and appears crucial to the outcome of the case, (2) the opposing party has used the excluded evidence as a shield to enhance its case and effectively destroy the other side's claim, and (3) prejudice to the party opposing the admission of the evidence appears minimal (save for the possibility that the evidence will work to the advantage of the party who seeks its admission), we hold that the District Court abused its discretion in excluding the disputed evidence. We need not decide, however, whether it would have been an abuse of discretion had the District Court excluded the Jones Report as affirmative evidence in the absence of Dr. Chamberlain's testimony and the sandbagging undertaken by appellees.

III. CONCLUSION

For the foregoing reasons, the jury's verdict is vacated, the District Court's judgment on that verdict is reversed, and the case is remanded for a new trial.

So ordered.

Parallel Citations

371 U.S.App.D.C. 173, 70 Fed. R. Evid. Serv. 331

978 A.2d 1257 District of Columbia Court of Appeals.

Raymond L. BENN, Appellant, v. UNITED STATES, Appellee.

No. 03-CF-946. | Argued Jan. 5, 2006. | Decided Sept. 3, 2009.

Synopsis Background: Defendant was convicted in the Superior Court, Frederick H. Weisberg, J., of felony murder while armed and related kidnapping, assault, and weapons charges. Defendant appealed. The Court of Appeals, 801 A.2d 132, reversed and remanded. On remand, after the exclusion of defendant's expert on eyewitness identification and following a jury trial, defendant was convicted in the Superior Court, Geoffrey M. Alprin, J., of armed kidnapping and a related weapons offense, but was acquitted of murder. Defendant appealed.

Holdings: The Court of Appeals, Ruiz, J., held that:

[1] trial court failed to exercise its discretion when it excluded testimony of defendant's expert on eyewitness reliability, and

[2] trial court's error was not harmless, as prosecution's case relied exclusively on identifications by witnesses who were strangers to defendant and whose certainty in their identifications increased with time.

Remanded.

Schwelb, Senior Judge, concurred in the judgment and filed opinion.

Attorneys and Law Firms

*1261 Lee Richard Goebes, Public Defender Service, for appellant. James W. Klein, Sandra K. Levick, and Erin Murphy, Public Defender Service, were on the brief, for appellant.

Ann K.H. Simon, Assistant United States Attorney, with whom Kenneth L. Wainstein, United States Attorney at the time the brief was filed, John R. Fisher, Assistant United States Attorney at the time the brief was filed, and Roy W. McLeese III and Colleen Covell, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, RUIZ, Associate Judge, and SCHWELB, Senior Judge. *

Opinion

RUIZ, Associate Judge:

Raymond Benn appeals his convictions, after a second jury trial, for the armed kidnapping of Charles “Sean” Williams on December 1, 1992. This appeal raises an issue we have grappled with before, the admission of expert testimony on the potential unreliability of eyewitnesses. For the first time, however, we do not affirm the trial court's exclusion of the proffered expert testimony. In excluding the expert testimony proffered by appellant, the trial court applied incorrect legal principles. It came dangerously close to employing a per se rule of exclusion and made a determination that contravened a holding of this court

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Benn v. U.S., 978 A.2d 1257 (2009) following the first trial. Moreover, the court did not follow the analysis established in Dyas v. United States, 2 which requires the trial court to consider three distinct factors in determining whether to admit expert testimony on the reliability of eyewitness identifications, and to do so in the context of the proffered expert testimony and evidence in the particular case. Because we cannot say that exclusion of the expert testimony proffered here was harmless, in a case that depended exclusively on the identification of eyewitnesses, we remand for further proceedings consistent with the analysis set forth in Dyas and this opinion.

We do not reverse appellant's convictions nor do we order a new trial. Rather, we remand and instruct the court to consider the credentials of appellant's proffered expert and the admissibility of his testimony in accordance with the three criteria established in Dyas. We note that while the trial court expressed the view that appellant's expert was qualified, and the government generally did not contest his qualifications, the trial court has not ruled on the particular scientific studies that appellant's proffered expert, Professor Steven Penrod, planned to use or their application to the government's evidence in the case. 3 Because such fact- intensive analysis is best conducted by the trial court, we leave the determination to its discretion in the first instance. We add *1262 that even if the trial judge decides, after considering all the relevant factors for admissibility, that the proffered expert witness is qualified and that his testimony should be admitted, the trial judge retains discretion to place reasonable limitations on the expert's testimony to avoid overwhelming the jury or unduly burdening the court, so long as these limitations are consistent with the requirements of the defense. 4 In particular, the trial judge may prohibit “the introduction of ultimate conclusions by an expert witness as to the truthfulness of a witness ... and the guilt of the defendant.” 5

I. Trial and Retrial

The trial in this case followed our remand for a new trial in Benn v. United States (Benn I ). 6 There, we directed the trial court to permit appellant to present evidence supporting his alibi defense, that appellant was at his mother's house celebrating her birthday on the evening of the murder. 7 At the first trial, appellant had been convicted of felony murder while armed 8 and of related kidnapping, assault, and weapons charges, in connection with the shooting death of Sean Williams. We reversed his convictions because the trial court had refused to allow appellant's mother to retake the stand after she had sat in on the trial during the testimony of her son in contravention of the trial judge's rule on witnesses. The defense proposed to call appellant's mother in order to rebut the suggestion of the prosecutor, while cross-examining appellant, that he and his mother had rehearsed his alibi. Appellant had proffered that the reason they had not talked about the case was because defense counsel had cautioned them not to do so, and he wished to assure that the jury would be informed of that fact.

At the second trial, however, appellant did not renew his alibi defense, and neither he nor his mother testified. Instead, appellant's defense centered on challenging the reliability of the identifications of the witnesses who testified that appellant was one of the men who kidnapped Sean Williams. Prior to trial, appellant sought permission to present expert testimony on the “unreliability [of] stranger-to-stranger eyewitness identifications” and certain other specific factors that, according to appellant's proffer, can affect the accuracy of an eyewitness's identification and recollection. Appellant proffered as his expert Professor Steven Penrod, a well-known scholar with many published articles in the area of eyewitness identifications. At the conclusion of the second trial, the jury, after deliberating for over a day, found appellant guilty of armed kidnapping and the related weapons offense. 9 Unlike in the *1263 first trial, the second jury acquitted appellant of murder. 10 The sole issue presented in this appeal is whether the trial court abused its discretion in rejecting the proffered expert testimony.

II. Facts

In the second trial, as in the first, the government's case relied exclusively on the testimony of five members of the Mahoney family, none of whom knew or had ever seen appellant before. Each of these witnesses selected appellant from a photo array and

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Benn v. U.S., 978 A.2d 1257 (2009) identified him in court as “the taller” of two unknown men who entered their Southeast Washington, D.C. home, on December 1, 1992, and forcibly abducted Sean Williams. The gist of the trial testimony concerning their identifications follows.

Marcelle Anthony Mahoney, then thirteen years of age, was returning home when he saw “a tall guy about-oh 6#3#, 6#5#, dark-skinned, wearing glasses, standing in the middle of the street [outside a double-parked] car.” This made Marcelle afraid, so he hurried inside. A few minutes later, that same tall man, and a shorter man who had a black gun, dragged Sean Williams into the apartment. Marcelle testified that he was “kind [of] frantic about seeing the gun.”

The two intruders went to the bedroom of April Mahoney, who was Sean Williams's fiancée and the mother of his child. She noticed that although it was December, her fiancé was wearing only a T-Shirt, without a coat, and that he had blood all over his face and clothes. The shorter unknown man, who was wearing her child's panties on his head, ordered April to leave the room and to take her baby, along with Darren and Marcelle Mahoney, out of the bedroom. Darren Mahoney, who was twelve at the time, testified that he stayed at least long enough to see Williams “rambl[e]” around April's room as he kept asking, “April, where my stuff at?”

Willie Mae Mahoney, April's mother, testified that she was in her bedroom and became alarmed when April told her about the sudden appearance in the home of the two unknown men. When April was unable to explain why the men were there, Willie Mae “hollered” at them to not “disrespect [my] home.” As the intruders walked out of April's room without responding, Willie Mae followed them and repeated her demand, leading the taller man to calmly explain that he would commit no violence toward, and intended no disrespect of, her home. When she tried to talk directly to Sean Williams, the tall man interrupted her, saying, “[Sean is] going to be all right. He ... has to settle a debt,” and the three men left. Willie Mae Mahoney testified that Sean Williams looked “scared” and “pitiful.”

William “Butch” Mahoney, Willie Mae's son and April's older brother, testified that he was in the kitchen when the men entered the home. He followed the intruders as far as the front step, and from there he called out to Sean Williams, who tried to give an optimistic response, while the two men pulled him into a car and drove off.

The intrusion into the Mahoney home lasted about six minutes. That was the last time the Mahoneys saw Sean Williams alive. His bullet-ridden body was discovered nearby early the following morning on the grounds of an elementary school. 11

Approximately one week after Sean Williams's murder, the Mahoney family *1264 was shown a stack of nine photos from which each identified appellant as the taller of the two men who had entered their home. 12 Darren, Marcelle, and Willie Mae Mahoney made these identifications one after the other, while Butch viewed the photo array later the same evening, and April several days later. Detective Mayberry testified that prior to making their identifications, Darren, Marcelle, and Willie Mae were all placed in a back bedroom of the apartment. Each would then come individually to the dining room to view the photos, and then go to the living room. However, Willie Mae Mahoney testified that after her grandsons viewed the photographs, they returned to her, in the bedroom. Neither Darren nor Marcelle could remember the sequence in which they moved from one room to another. 13

Following the identifications, April Mahoney testified, “we never discussed pictures, we just discussed what happened,” but Butch Mahoney contradicted her, admitting that he discussed his identification of appellant with his family. At the time they identified appellant from the photo array, Marcelle, Willie Mae, and April Mahoney expressed “95%” certainty that they had correctly identified appellant as one of the perpetrators. This, we said in Benn I, was a remarkable “coincidence” that “understandably troubled the judge [during the first trial] and indicates, at least, that someone probably suggested something to somebody.” 14

At appellant's two trials, the government presented only the testimony of the five members of the Mahoney family present at the time of Sean Williams's kidnapping. There was no evidence of motive, for example, that appellant (or anyone connected to him)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Benn v. U.S., 978 A.2d 1257 (2009) was owed money by Sean Williams. No relationship was established between appellant and the “shorter man” who entered the house, or with the car in which the men drove off with Sean Williams. The prosecutor presented no physical evidence linking appellant to the abduction at the Mahoneys' home or the place where Sean Williams's body was found.

All five members of the Mahoney family acknowledged that they did not know and had never before seen either of the men who entered their home and abducted Sean Williams that day, nor did they have any other knowledge of the men. 15 But *1265 they each positively identified appellant as the taller of the two men who had entered their home. Each witness was impeached with various inconsistencies concerning his or her initial identification from the photographs that were presented in the days after the kidnapping. 16 When the Mahoneys first selected appellant's photograph, several did so with some qualification: April said that appellant's photograph “looks like the guy” who abducted Mr. Williams; Willie Mae thought that appellant “looks like the guy if his face were slimmer”; and Darren thought “that looks like him.” Marcelle picked out appellant's picture saying that it “looks like the person.” By the time of the second trial, however, the qualifications had disappeared. Darren testified that he was “absolutely positive”; April said she was “very sure” that appellant was the “tall guy” who had come into their apartment; Marcelle testified, when asked how he could be sure, that appellant “looks just the same” as the kidnapper; Willie Mae said she was “sure” that appellant was the same “gentleman” who entered her house “[b]ased on the way he's looking at me”; and, referring to both his photo and in-court identification, Butch Mahoney said, “I'm sure then, and I'm sure now. That's him.” The witnesses expressed this high level of confidence in their identifications of appellant after each was asked at the second trial to confirm that they had previously twice identified appellant, first from the photo array and, a second time, under oath at the first trial.

III. Eyewitness Identifications

Although the testimony of a single eyewitness can be sufficient to support a conviction “so long as a ‘reasonable person could find the identification convincing beyond a reasonable doubt,’ ” 17 the Supreme Court has noted that “[t]he identification of strangers is proverbially untrustworthy.” 18 “Even if the witness professes certainty, ‘it is well recognized that the most positive eyewitness is not necessarily the most reliable.’ ” 19 These judicial pronouncements *1266 are supported by research studies that have concluded that “eyewitness error is the leading cause of wrongful conviction in the United States.” 20 However, “most exonerees had no successful basis for challenging what we now know to be incorrect eyewitness identifications.” 21

In this case, appellant proffered a study, conducted in 2001, in which experts on the subject of eyewitness testimony were asked whether certain observed “phenomena” were “reliable enough for psychologists to present in courtroom testimony.” 22 This study sought to update one of a similar nature conducted in 1989. 23 In addition to identifying sixteen such phenomena, 24 the study revealed other important facts regarding the reliability of eyewitness testimony. First, the study identified several areas of research which experts had previously considered either unreliable or within the “common sense” knowledge of a juror. For example, in the 1989 study, the *1267 surveyed experts did not agree that the methodology of studies concluding that “[t]he presence of a weapon impairs a witness's ability to accurately identify the perpetrator's face” was sufficiently sound to qualify as expert testimony. 25 By 2001, however, 87% of the experts surveyed agreed that the science concerning the effect of weapon- related stress had advanced to the point that it was reliable. 26 34% of the experts agreed that it would be a matter of “common sense” knowledge for the average juror, 27 as compared to 11.4% in 1989. 28 Second, the 2001 study listed thirteen new areas of scientific study that were deemed reliable. 29 For example, 95% of the eyewitness experts surveyed in 2001 agreed that the scientific method behind the observed phenomenon that an eyewitness's confidence can be influenced by a number of factors unrelated to accuracy is sufficiently reliable to be presented to a jury. 30 Only 10% of the experts surveyed, however, concluded that this phenomenon is within the common knowledge of lay jurors. 31

Whether experts generally accept the scientific research on the reliability of eyewitness testimony is only part of the necessary inquiry on the admissibility of scientific evidence. Courts must also determine the extent to which expert testimony will provide information that is not likely to be known by lay jurors. 32 Trial courts, both in our jurisdiction and in others, have excluded expert testimony on eyewitness reliability because it was *1268 deemed to be within the common sense knowledge, i.e., “not ... beyond the ken,” of the average juror. 33 Certain factors that can influence an eyewitnesses' observation and recall are familiar to lay persons. According to a majority of the experts surveyed in the Kassin study, for example, three factors-unreliability due to the susceptibility of young children to suggestion, alcohol intoxication, and cross-racial identifications-are understood by lay jurors. 34 But “jurors, as a matter of common sense, are not fully aware of the factors that influence eyewitness testimony.” 35 For example, the average juror is likely to believe that witnesses remember the details of violent events better than those of nonviolent ones. 36 Scholarship on the subject, however, reveals that the opposite is true. In general, witnesses are just as likely to underestimate the duration of an event as to overestimate it, but in the case of a violent crime, however, witnesses most often think that the incident lasted longer than it did. 37 Similarly, jurors believe that the more confident a witness seems, the more accurate that witness's testimony will be. 38 Research reveals, however, that the correlation between a witness's expression of certainty in an identification and its accuracy is, at a minimum, greatly overstated, and perhaps unwarranted. 39

Against this general background we discuss, first, the legal standard for admission of expert testimony on eyewitness identification, and then, the reasons for the trial judge's rejection of the defense proffer and its potential relevance to the identifications that were presented to the jury in this case.

*1269 IV. The Legal Standard

[1] In Dyas we identified three distinct criteria that trial judges must apply in considering whether to admit or exclude expert testimony regarding eyewitness identification:

(1) the subject matter “must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman;” (2) “the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth;” and (3) expert testimony is inadmissible “if the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.” 40

The first and third Dyas criteria reflect the standard for admissibility of expert testimony set forth by the U.S. Court of Appeals for the District of Columbia in Frye v. United States. 41 Dyas's requirement that the evidence be “beyond the ken of the average layman,” 42 derives from Frye's standard, that the subject matter of the expert testimony must be “such that inexperienced persons are unlikely to prove capable of forming a correct judgment,” because the subject “does not lie within the range of common experience or common knowledge.” 43 And the third Dyas requirement reflects Frye's standard that there be “general acceptance” of the underlying methodology in the relevant scientific community. 44

[2] [3] [4] [5] Although the admission of expert testimony falls within the discretion of the trial judge, 45 we have cautioned that because the right to confront witnesses and to present a defense are constitutionally protected, “[i]n exercising its discretion, the trial court must be guided by the principles that ‘the defense should be free to introduce appropriate expert testimony.’ ” 46 Not only is the defendant entitled *1270 to present a defense, but that defense should not be put at a disadvantage in the use of scientific evidence comparable to that permitted to the government. Fairness dictates a balanced judicial approach in permitting use in criminal trials of expert testimony concerning subtle psychological factors that might affect witnesses. The defense should be permitted to present expert testimony on the unreliability of eyewitness testimony in

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Benn v. U.S., 978 A.2d 1257 (2009) appropriate cases, just as the government is allowed in appropriate cases to introduce expert evidence to explain the failure of government witnesses to promptly identify or accuse an attacker in order to build a case for the prosecution. 47

V. The Defense Proffer and the Trial Court's Ruling

Two weeks before trial, 48 defense counsel filed a forty-page motion proffering the expert testimony of Professor Steven D. Penrod, Ph.D., J.D., a social psychologist and lawyer with extensive credentials in the field of eyewitness identifications. Dr. Penrod's fourteen-page curriculum vitae reveals that Dr. Penrod has published widely on the subject. The motion set out the evidence presented by the government at the first trial and the prosecution's exclusive dependence on the identifications by the five Mahoneys. The motion addressed each of the three criteria for admissibility established in Dyas, requested a hearing, and offered to make Professor Penrod available for examination. With respect to the state of scientific research on the subject, the motion stated that in the last twenty-five years “psychologists have made great strides in understanding the factors that lead to accurate and inaccurate eyewitness identification.” The proffer pointed to the 2001 Kassin survey discussed above, which indicates that certain findings “are generally well accepted by experts,” and to the increasing acceptance of such findings by law enforcement, with specific reference to the Department of Justice's publication, Eyewitness Evidence. 49 In addressing whether the subject matter of the proffered expert testimony was “beyond the ken” of the average juror, the defense asserted that while many trial judges are “educated ... in the many problems inherent in eyewitness testimony,” this is “not generally understood by the average member of the public.”

*1271 Appellant's motion outlined the substance of Professor Penrod's proposed testimony, which included “a description of the various research studies and experiments upon which his conclusions would be based,” and stated “that controlled experiments have led him and other experts in the field to draw [a number] of general conclusions” about the reliability- or lack thereof-of eyewitness identification when certain specific factors are present. Eleven specific factors were set out and explained in the motion. 50 These included, inter alia, the unreliability of identifications from observation made under stressful circumstances, such as when a witness is focused on the presence of a weapon; the lack of correlation between witness confidence and accuracy; the influence of knowing that others have identified the same suspect; 51 and the use of “unreliable investigative procedures,” including photo arrays, that can affect eyewitness reliability. 52 The motion also asserted that these findings are not known to lay jurors, and, more specifically, that the lack of correlation between an eyewitness's confidence in an identification and the accuracy of that identification is not only unknown to lay persons, but is also “counterintuitive.” 53

*1272 In its opposition, the government did not challenge Professor Penrod's qualifications. The prosecutor did not proffer its own expert offering a contrary position, arguing that, because the motion was filed shortly before trial, it did not have sufficient time to formulate a substantive response. Instead, the government argued that this court had in the past upheld the exclusion of similar expert evidence, citing Dyas, 54 and our earliest cases on the subject, Smith v. United States, 55 Brooks v. United States, 56 and Taylor v. United States. 57 The government dismissed the claim made in the proffer that research in the field had “progressed so profoundly” that it should be considered anew, citing our affirmance in Green, a case in which testimony by the same expert, Professor Penrod, had been proffered as an expert witness as recently as 1998, but had been excluded.

At the hearing on the defense motion, the trial court initially asked counsel for “the score” in terms “of which [trial] judges ... allow[ ] this and who doesn't,” and opined that “[i]t's largely in favor of not allowing it.” 58 The trial court accepted Professor Penrod's qualifications, (“Dr. Penrod's credentials look excellent. And I'm sure that he would qualify as he has in other jurisdictions.”), but questioned the substance of Dr. Penrod's proffered testimony. Referring to the proffered opinion regarding the untrustworthiness of stranger identifications, the trial court commented:

That seems one of the ... to be one of these revealed truths in the law that somebody said about 100 years ago and it's picked up in opinion after opinion after opinion. And we don't know that that's so. I don't know that that's so. And I don't know that Penrod knows that it's so either.

* * *

I'm not convinced in any way when an appellate court says stranger-to-stranger identification has some danger of misidentification.... I don't know why they are in any position to make that statement case after case, year after year, century after century, if you will. In addition to questioning the expert's scientific opinion, the trial judge concluded that the expert testimony would not be of assistance to the jury because “[t]he identification of persons by other persons ... [is] something we do all the time. It is not an esoteric matter for everybody.... I don't really believe that this type of-what this expert would testify to is beyond the ken of normal jurors.” The trial court seemed particularly convinced that the number of eyewitnesses in the case made the proffered expert dispensable. “[W]hen [w]e have five eyewitnesses, and *1273 apparently that's what we have in this case, who positively identify somebody, you feel much more confident about the accuracy of the overall identification process than you do if its only one witness.” The trial judge concluded,

And that does not mean that they [the jurors] will get it right every time. I think we all know that this is an imperfect system that doesn't always come up with the right verdict in civil and criminal cases. But I am not at all concerned that the testimony of Dr. Penrod or anybody like him would make it more likely that a jury would come up with the right decision in this case or in any case.

The trial court denied the defense motion to call Dr. Penrod, the case went to trial, and appellant was convicted on the strength of the Mahoneys' identifications.

VI. Analysis

[6] [7] [8] [9] Whether to admit expert testimony is committed to the discretion of the trial court; “a ruling either admitting or excluding such evidence will not be disturbed unless manifestly erroneous”-i.e., for abuse of discretion. 59 When an evidentiary question is committed to the discretion of the trial judge, as here, our review on appeal is limited to whether the judge engaged in a proper exercise of discretion. As we have said on many occasions, the exercise of discretion entails, first, recognition that there is discretion to be exercised, and then, after consideration of the correct legal factors, their reasonable application to the facts of the case before the court. 60 For the reasons that follow, we conclude that in this case the trial court applied incorrect legal principles, and did not fully consider the proffer presented under the three-part analysis we set forth in Dyas. Because of the potential importance of the proffered expert testimony, that was grounded exclusively on eyewitness identification, we are constrained to remand so that the trial court may reconsider appellant's proffer in light of the correct legal factors and the evidence presented at trial.

[10] [11] First, in excluding the expert evidence, the trial judge did not explicitly consider the three Dyas factors-or indeed, any one of them-in light of the specific and detailed proffer made by defense counsel. Rather, the court appears to have excluded the expert evidence at least in part based on an a priori belief that the untrustworthiness of eyewitness identification is “one of those revealed truths in the law that somebody said about 100 years ago ... And we don't know that that's so.” This view was encouraged by the prosecutor's argument, made during the motions hearing, that “there's never a case where the type of expert testimony [appellant] is seeking to introduce is appropriate because it would usurp the very gut of what the jurors are here to do.” Both statements are categorical and reflect a lack of attention to the specific proffer made by defense counsel and its potential relevance to the eyewitness identifications in this particular case. These statements not only overlook the substance of the proffered expert testimony, but also miss the critical role of the judge in evaluating its admissibility. As we emphasized in Green, the decision to admit or exclude expert testimony must be made on a case-by-case basis, grounded on the proffer made

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Benn v. U.S., 978 A.2d 1257 (2009) and on its potential to assist the jury in the particular case before the court. 61 *1274 Moreover, to the extent that the trial court expressed disagreement with the substance of the proffered scientific testimony, we note that what Frye and Dyas require is acceptance within the scientific community of the methodology used, rather than judicial agreement with specific results. 62

[12] [13] [14] We emphasize our disagreement with the prosecutor's statement that expert testimony on eyewitness identification is “never ... appropriate because it would usurp” the jury's function. 63 If expert testimony can assist the jury, it perforce does not usurp the jury's function. Rather, it enhances the jury's ability to perform its role as factfinder. 64 The jury's responsibility in a criminal case is to critically examine the government's evidence against the most exacting legal standard, guilt beyond a reasonable doubt. This standard “requires the factfinder to ‘reach a subjective state of near certitude of the guilt of the accused.’ ” 65 According to some scholars, “evidence of identification, however untrustworthy, is taken by the average jur[or] as absolute proof.” 66 Expert testimony can therefore be critical in helping to confirm-or undermine-a juror's “near certitude” of a defendant's guilt when the prosecution's case is grounded on the identification of eyewitnesses, and in furthering the truth-seeking purpose of a trial.

[15] In construing and applying Federal Rule of Evidence 702 concerning “scientific, *1275 technical, or other specialized knowledge,” the Supreme Court has remarked on the “ ‘liberal thrust’ of the Federal Rules and their ‘general approach of relaxing the traditional barriers to opinion testimony.’ ” 67 The Court advised that judges should rely on the adversary system, rather than on the exclusion of evidence, to guard against potential juror confusion from the presentation of scientific evidence, noting that “[v]igororous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” 68 Any remaining concern a trial judge may have that admission of expert testimony could confuse or overwhelm the jury is more appropriately dealt with, not by exclusion, but by placing reasonable limitations on the expert's testimony and instructing the jurors that they-and only they- are the ultimate fact finders.

To the extent that the trial court excluded the proffered expert testimony based on what “most” other judges do, or because, as the government urged, that expert testimony questioning eyewitness identification is “never” helpful to the jury, it was error to fail to exercise discretion. 69 But even if the trial court did not apply an automatic rule of exclusion, 70 the ruling was nonetheless defective because it did not address the correct legal factors set out in Dyas or apply them to the expert testimony that the defense proffered.

In cases raising this issue to date, we have upheld the trial court's decision to exclude expert testimony on factors that may affect the reliability of eyewitness identifications. In Dyas, we affirmed the exclusion of expert evidence regarding the effects of stress, lapse of time, suggestion by persons in authority and a prior identification by the witness, after the trial court found that such expert evidence was not “beyond the ken of the average layman” and would not assist the jury. We noted that counsel had the opportunity to “fully explore [the witness's] perception and recollection” of an armed robbery. 71 Shortly after Dyas, in two cases, we summarily upheld the exclusion of scientific evidence that was “akin” or “similar” to that proffered in Dyas. 72 In Smith, for example, the court emphasized that counsel had “ample opportunity to test the reliability of the complainant's identification through vigorous cross-examination.” 73 In 1982, the court decided two appeals, Brooks and Taylor, which also raised the use of expert *1276 testimony in eyewitness identification cases. In Brooks, we upheld exclusion of expert evidence on “the nature of human memory and perception and the mental processes involved in an eyewitness's identification,” where the trial court had determined that the proffered testimony was not “beyond the ken of jurors in the District of Columbia,” because through cross-examination counsel had been given the “opportunity to fully explore each victim's perception and recollection of the assault and her ability to identify the assailant.” 74 In Taylor, we also affirmed the exclusion of expert evidence “on the subject of the nature of human memory and perception and mental processes involved in an eyewitness identification,” where the trial court had concluded that “[t]here is no reason to believe that the jurors were incapable of properly evaluating the evidence by using their experience and common sense, in lieu of expert elucidation.” 75

In Green, decided in 1998, we upheld the trial court's exclusion of expert evidence after it determined that “the proffered expert testimony did not deal with subject matter beyond the ken of the average juror and would present information unnecessary to this particular jury that would be hearing the case.” 76 There, the defendant proffered expert evidence regarding “unconscious transference”; “photo-biased identifications”; “the negative effects of stress, fear, and emotion[,] ... of violence or the use of a weapon [,] ... [and] lighting conditions and brief periods of interaction between an eyewitness and a perpetrator on the accuracy of the eyewitness's memory”; and the “reluctance of an eyewitness who has publicly identified someone to change that identification later, or even to admit doubt.” 77 We noted that the trial court had observed that during the first trial, counsel's cross-examination had been so effective that the eyewitness had been made to look “silly” in front of the jury. 78 Deferring to the trial court's “lengthy ... ruling” (quoted in full in the appellate opinion), 79 we affirmed. 80 More recently, in Hager, decided in 2004, we upheld the exclusion of expert evidence “concerning the correlation between witness confidence and accuracy in eyewitness identifications,” 81 because it was irrelevant, pointing out that the studies relied on by the proffered expert concerned “stranger identification [and] not an identification of a person known to the witness, as in this case.” 82 And last year, in Burgess v. United States, 83 we affirmed after the trial court excluded expert evidence “on the psychological factors of memory and perception that affect the accuracy of eyewitness identifications especially when it involves cross-racial identifications.” 84 We ruled on the insufficiency of the proffer, for the defendant had “failed to identify his expert witness, the expert's qualifications, and the particular opinions to be rendered.” 85

[16] [17] While we will defer to the trial court's exclusion of expert testimony when it is based on a reasoned and reasonable exercise of discretion, automatic reliance *1277 on Dyas or on other past cases to exclude expert evidence will not suffice, except in clear-cut cases. As we explained in Ibn-Tamas,

[A]lthough a trial court's ruling to exclude expert testimony is reversible only for abuse of discretion-for being “manifestly erroneous,”-there is an important tradeoff for giving the trial court such latitude: that court must take no shortcuts; it must exercise its discretion with reference to all the necessary criteria. Otherwise, the very reason for such deference-i.e., the trial court's opportunity to observe, hear, and otherwise evaluate the witness-will be compromised. Thus, the appellate court must not affirm a ruling premised on trial court discretion unless the record clearly manifests either (1) that the trial court has ruled on each essential criterion, or (2) that the trial court, as a matter of law, had “but one option.” 86

[18] As we have expressly stated in our more recent cases, “Dyas and its progeny do not articulate a per se requirement that all expert testimony about the reliability of eyewitness identification must be excluded.” 87 Moreover, we have taken note of the fact-supported by the studies discussed above-that the “art of the inquiry or the scientific methodology governing the psychological study of eyewitness identification, including cross-racial identification, and also pertinent case law in other jurisdictions, reflect new developments since our 1977 Dyas decision, and hence, the first Dyas factor may require more than cursory scrutiny today.” 88 Here, the trial court appears to have overlooked the more recent studies, mentioned in the proffer, which were published after the cases relied upon by the government in opposing the defense motion. Consistent with the studies we have discussed here, we have observed that “[d]espite the fact that jurors may be familiar from their own experience with factors relevant to the reliability of eyewitness observation and identification, ... it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror.” 89 This, too, was mentioned in the proffer. The trial court here expressed a contrary view, stating that eyewitness identifications are a common experience and “not an esoteric matter for everybody.” But the proffer-not adverted to by the court-was precisely that scientific research had both identified factors that may lead a jury to question an eyewitness identification and that some of these factors are not evident to lay jurors. Indeed, with respect to the correlation between confidence and accuracy of an identification, the proffer noted that the scientific research findings are counterintuitive. Careful consideration of the proffer and, as suggested by defense counsel, a voir dire examination of Professor Penrod, would have provided the trial judge with evidence on which to make a determination

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Benn v. U.S., 978 A.2d 1257 (2009) whether the research underlying the findings Dr. Penrod proposed to present is generally accepted in the relevant scientific community and beyond the ken of most lay persons. Without such an inquiry and factual determination, the trial court is not free to *1278 disregard this court's expressed views on the subject. 90

[19] [20] We reiterate, as we said in Green, that while the determination whether to admit expert testimony regarding eyewitness reliability lies within the discretion of the trial judge, this determination must be based upon a consideration of each of the three separate criteria identified in Dyas, taking into account “the particular proffer made and in the concrete setting of that case.” 91 In short, the court's determination must be case-specific, based on the proffered expert testimony, and must consider: (1) the current state of generally-accepted scientific research; (2) whether it is within the common knowledge of lay jurors; and (3) whether the testimony would assist the jury, taking into account the relevance and probative value of the proposed scientific evidence to the eyewitness identification in the case. Because the record in this case does not show that the trial court gave such individualized consideration to the proffer made by the defense, we remand the case so that the judge may do so.

We do not purport to conduct on appeal the deliberate consideration of the proffer, in the context of the eyewitness identifications in this case, that the trial judge must conduct. But because the issue is an important one that continues to be raised on appeal with some frequency, and is likely to continue to arise because of the pace of scientific research, we make some general observations. First, is the fairly obvious fact, gleaned from experience, that a theory, initially untested, unrecognized, and unsupported by evidence, over time might receive widespread recognition and the support of experts in the respective field of social science research. Courts have taken cognizance of such developments in social science, which has led to changes in the law of evidence. 92 The state of social science research with respect to the reliability of eyewitness testimony has developed in recent years to the point where it can credibly be argued by defense counsel that it has reached that critical juncture. Whereas once we could only speculate as to the inaccuracy of an eyewitness identification, now there is published scientific research that questions its accuracy when made under certain conditions and exonerations, based on DNA evidence, that confirm *1279 what previously were only suspicions. 93

Second, not all expert testimony concerning the potential unreliability of eyewitness identification is the same, or necessarily relevant, to a case even if the government's evidence includes identifications made by eyewitnesses. As we have discussed, there are particular factors that affect eyewitness reliability to a greater or lesser degree, and not all are present in every case in which an eyewitness has identified the defendant. Moreover, some, but not all, of these factors are understood by lay jurors.

[21] [22] [23] [24] It is quintessentially the function of the trial judge to determine whether expert testimony is likely to be helpful to the jury in evaluating the identification presented in a particular case, once having ascertained that the expert is qualified, and that the science is generally accepted and not within the common knowledge of jurors. 94 In making that determination, a trial judge must consider whether expert testimony is the only means, or a particularly effective way, to address and correct common juror misconceptions about the reliability of the eyewitness identifications in the case. Thus, as we have previously recognized, there are certain cases where cross-examination may suffice to test the reliability of the identification made by an eyewitness. 95 Many judges rely on cross-examination as an effective way to expose weakness in an eyewitness identification, but reliance on cross-examination cannot be automatic or reflexively adopted in lieu of proffered expert testimony. Simply put, the information that an expert can provide about research studies is different in nature and cannot be elicited from a lay witness during cross-examination. Moreover, studies show that exclusive reliance on cross-examination may be unfounded, for

in the absence of expert testimony, witnessing and identification conditions had negligible effects on juror inferences about the eyewitness, the strength of *1280 defense and prosecution cases, or on juror decisions. In short, without the benefit of expert testimony, jurors did not make even minimal use of their purported knowledge of eyewitnessing factors and relied heavily on witness confidence in forming their judgments. 96

In short, while cross-examination is an attractive option because it is familiar to judges and less time-consuming than determining the qualification of experts and resolving challenges and objections that admission of expert scientific evidence can entail, it is not necessarily a satisfactory alternative; the efficacy of cross-examination must be evaluated with care in the context of the particular case and against the value added to the jury of proffered expert testimony. There is no one-size-fits-all solution.

We remand the case so that the trial judge may properly consider the expert testimony proffered by the defense in the context of the facts of this case. 97 We do not hold that the trial judge, after exercising his discretion applying the three Dyas criteria, may not properly exclude the expert testimony. 98 But failure to exercise discretion upon careful consideration of the proffer in light of the Dyas factors was error as a matter of law. 99

VII. Remand

[25] It bears explaining why this appeal-for the first time in our court-requires a remand for further proceedings, while Hager and Green, our most recent cases in which we reviewed the trial court's exclusion of expert testimony on the ground that it would not assist the jury, did not. First, Hager proffered testimony on the unreliability of stranger identifications, but none of the eyewitnesses who identified Hager was a stranger to him. This meant that the expert testimony was irrelevant and therefore could not aid the jury and might, in fact, confuse it. 100 Second, the case against Hager featured physical evidence that corroborated the eyewitnesses' identification. 101 “[W]here such corroboration of identification exists, the exclusion of the proffered expert testimony by the trial court generally does not constitute an abuse of discretion.” 102 The case against appellant, by contrast, was based on identifications *1281 made by strangers that corroborated each other, but is bereft of any other corroborative evidence. Similarly, in Green (and unlike in this case) the government presented corroborating physical evidence, appellant's jacket found with the murder victim's property and appellant's fingerprints in the getaway car. 103 Also unlike in this case, the trial judge who excluded the scientific evidence in Green as unnecessary to test the credibility of the eyewitness, had been able to personally assess the efficacy of cross-examination and how it had undermined the eyewitness on the stand during the first trial. 104 Here, different judges presided over appellant's two trials, so that, in rejecting the proffered expert testimony prior to the second trial, the judge did not have a basis of personal observation of the witnesses' testimony to conclude that expert testimony would not assist the jury to an appreciable extent.

[26] We agree with the trial court that expert testimony is likely to be more critical where only one eyewitness (who is a stranger) identifies the defendant as the perpetrator. But we must disagree, as have other courts, with the notion propounded by the government that expert testimony of the type proffered here is probative, if at all, only in cases in which a single witness has identified the defendant. 105

[27] The trial court expressed “feel[ing] much more confident about the accuracy of the overall identification process” in this case because five eyewitnesses who identified appellant as “the taller” of the two men who kidnapped Sean Williams. 106 However, as we said following *1282 appellant's first trial:

[T]he prosecutor's evidence seems, at first blush, to be quite formidable, for Benn was identified by five apparently disinterested witnesses. But closer scrutiny places the strength of the case in substantial doubt. All of the witnesses were strangers to Benn. When shown a photo spread which included Benn's picture, four of the five witnesses said that the photograph “looks like” the tall man who accompanied the decedent. Common sense tells us that many people resemble one another, and in that sense “looks like” is not really an identification at all. The purported coincidence that three of the witnesses described themselves as 95% certain understandably troubled the judge and indicates, at least, that someone probably suggested something to somebody. Benn was never placed in a line-up, and although all five witnesses “positively” identified him in the courtroom, it is difficult to hypothesize a more suggestive setting for an identifying witness, when the

individual whom the witness had selected from the photo array was seated at the defense table, and the witness could infer that the police obviously believed that the man whose photograph the witness had described as “looking like” the culprit was indeed guilty. Depending on how the prosecution witnesses came across, the government may have had a fairly decent case, but by no means an overwhelming one. 107 Whether or not the trial court disagreed with our judgment about the strength of the government's case, it was a necessary holding in our prior remand in Benn I and it was binding on the trial court. 108

We recognize the general proposition that as the number of eyewitness identifications increases, the probability that they are all mistaken decreases. But it was the accuracy of each individual witness's identification, and the circumstances that may have influenced those initial identifications and that made possible their mutual reinforcement as a group, that the expert's testimony would have questioned. If the jury were persuaded by the expert testimony that the identifications were not as reliable as they seemed at first blush, defense counsel could have argued that in their deliberations the jurors should discount the witnesses' professed certainty in their identifications and that this was cause for reasonable doubt in the absence of corroborating evidence. 109

Appellant argued that his defense depended on being able to cast doubt on the eyewitnesses' self-described confidence in their identifications of appellant, because it was the central feature of the government's case. In closing, the prosecutor *1283 identified the “credibility” of the Mahoneys' identifications as the “key issue” for decision and hammered home to the jury that appellant was guilty because “each and every one of [the Mahoneys'] testimonies was credible; it was certain; it was reliable.” 110 Without expert testimony to provide a foundation for his arguments, defense counsel could only make unsupported assertions in closing argument. 111 In rebuttal, the prosecutor again pointed to the weight of “five positive identifications of people who have no motive to lie, no bias, ... no interest in the outcome of this case.”

In a case grounded on eyewitness identifications of a stranger, without other corroborating evidence, and in which the defense depends entirely upon demonstrating that the identifying witnesses are not as reliable as they believe themselves to be, to preclude the defendant from presenting the scientific testimony of a qualified expert on research that is generally accepted and not known to lay jurors to prove this point is not harmless under Kotteakos v. United States, 112 provided that the facts underlying the identifications establish a sound foundation for applying the principles expounded by the expert. 113 As we *1284 concluded with respect to the effects of sexual abuse on a child's memory, “[w]ithout an understanding of the reasons behind these behaviors, a jury may automatically infer” 114 that an honest profession of certainty ends the inquiry into witness reliability. We remand for further proceedings 115 on appellant's request to present expert testimony concerning certain factors that can affect the reliability of eyewitness identification. 116

* * *

ACCORDINGLY, the case is REMANDED for further proceedings consistent with this opinion. 117

So ordered. 118

SCHWELB, Senior Judge, concurring in the judgment: I concur in the remand, and I agree with much of the discussion in Judge Ruiz' opinion. I write separately, however, because my emphasis differs significantly from the court's.

As we reiterated in our opinion in Benn's first appeal,

[a]n exercise of discretion must be founded upon correct legal standards. See, e.g., In re J.D.C., 594 A.2d 70, 75 (D.C.1991). “A [trial] court by definition abuses its discretion when it makes an error of law,” Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

Benn v. United States, 801 A.2d 132, 142 (D.C.2002) (Benn I ) (quoting Teachey v. Carver, 736 A.2d 998, 1004 (D.C.1999)). In my opinion, the transcript of the hearing at which the trial judge decided not to admit Dr. Penrod's testimony reveals that the judge departed from correct legal principles in three separate, though related, respects:

1. The judge seemed, at least initially, to treat the issue before him as being whether expert testimony is admissible in eyewitness identification cases generally. Indeed, the judge inquired as to the “score” as between judges who admit such testimony and those who exclude it. This approach effectively assumes that one rule fits all such cases, and that the answer is always yes or always no, regardless of the particular facts. This approach is contrary, inter alia, to Green v. United States, 718 A.2d 1042, 1051 (D.C.1998). Although the judge subsequently (and appropriately) disclaimed any absolute per se bar against receiving such expert testimony, he plainly disfavored such evidence, and he did not, at least explicitly, consider the specifics of the defense proffer in light of the record before him, as he was required to do by Green and by other authorities cited in the majority opinion.

*1285 2. The judge appeared to reject, as misinformed, the jurisprudence of appellate courts, including the Supreme Court, see, e.g., United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); and this court, see, e.g., Benn I, 801 A.2d at 145 n. 11, to the effect that, more than other evidence, “stranger-to-stranger identification is often untrustworthy and presents some danger of misidentification.” Indeed, the judge stated: “I think, you know, it just doesn't.”

3. The judge declared that he was “not impressed” by our analysis in Benn I of the quality of the eyewitnesses identifications in this case. That analysis, however, was a part of our holding in Benn I, 801 A.2d at 145. We concluded in Benn I, that the evidence for the prosecution was “fairly decent ... but by no means overwhelming,” and we ruled, substantially for that reason, that the trial court's error in excluding Benn's mother's testimony (for a violation of the rule on witnesses) was prejudicial rather than harmless.

In my opinion, Benn has not shown that our precedents require reversal of his conviction or that, on the merits of the defense motion, the judge's exclusion of Dr. Penrod's testimony constituted an abuse of discretion. I am not satisfied, however, that the judge based his exercise of discretion on correct legal principles, and for that reason-and for that reason alone 1 -I do not agree with the government's view that we should affirm Benn's conviction.

II.

This case is of ancient vintage. It arises from a crime which was committed in 1992. To some extent, almost seventeen years later, it remains shrouded in mystery. The record does not reveal, for example, how it came to be that Raymond Benn's photograph was included in the photo spread that was shown to the five members of the Mahoney family several days after the kidnaping and murder of Charles (Sean) Williams. No connection between Benn and the Mahoney family, or between Benn and Williams, was established. Although the motive for the crime was apparently the alleged nonpayment of a debt, there was no evidence that Williams owed Benn any money. Thus, almost two decades after Williams' death, we have yet to learn why Benn became a suspect.

Further, Benn secured a reversal in Benn I on the grounds that he was precluded from presenting an alibi defense, but he then asserted no such defense at the second trial. In other words, Benn initially claimed that he was denied a fair trial because his alibi was excluded, but when he had the opportunity to present his alibi to a jury, his attorneys declined to do so, preferring instead to attempt to attack the prosecution's case with expert testimony *1286 -a tactic which they could have used, but failed to employ, at Benn's first trial. I suppose that this was a legitimate defense tactic, but I find the sequence less than edifying.

However, be that as it may, it is undisputed, that all five Mahoneys positively identified Benn at the first trial 2 as one of the two men who abducted Williams from their home. This was not, by any stretch of imagination, a flimsy government case. If Benn is innocent, then all five Mahoneys, none of whom knew Benn or had any motive to lie, must have been mistaken in making their identifications. The five identifications tend to corroborate one another. Therefore, as we noted in Benn I, “the prosecution's evidence seems, at first blush, to be quite formidable, for Benn was identified by five apparently disinterested witnesses.” 801 A.2d at 145.

But things are not always as simple as they seem. As we observed in Benn I, and as the court notes in the majority opinion,

closer scrutiny places the strength of the case in substantial doubt. All of the witnesses were strangers to Benn. When shown a photo spread which included Benn's picture, four of the five witnesses said that the photograph “looks like” the tall man who accompanied the decedent. Common sense tells us that many people resemble one another, and in that sense, “looks like” is not really an identification at all. [ 3 ] The purported coincidence that three of the witnesses described themselves as 95% certain understandably troubled the judge and indicates, at least, that someone probably suggested something to somebody. Benn was never placed in a line-up, and although all five witnesses “positively” identified him in the courtroom, it is difficult to hypothesize a more suggestive setting for an identifying witness, when the individual whom the witness had selected from the photo array was seated at the defense table, and the witness could infer that the police obviously believed that the man whose photograph the witness had described as “looking like” the culprit was indeed guilty. [ 4 ]

Id. (footnote omitted). Because of our “substantial doubt” regarding the strength of the case, we concluded in Benn I that the erroneous exclusion of Benn's mother's testimony was not harmless and that it required reversal of Benn's convictions and a new trial. Our assessment of the flaws in the government's case at the first trial was a part of our holding and the law of the case, and it was binding on the trial court.

III.

At the beginning of the hearing regarding the admissibility of Dr. Penrod's proposed testimony, the judge posed the following question to Benn's attorney:

There are 59 judges on this court. What's the score? Do you keep score who allows [expert testimony regarding eyewitness identification] and who *1287 doesn't. It is largely in favor of not allowing it, isn't that true?

Counsel acknowledged that “it's largely been in favor of not allowing it although not exclusively in favor of not allowing it.” The judge's question was predicated on the assumption that expert testimony on this subject is either always admissible or always inadmissible, and that a majority of Superior Court judges who had confronted the question had ruled that it was inadmissible.

The prosecutor emphatically reinforced this assumption:

I don't know the exact count, but my understanding of the 59 judges in this court is that only one has allowed it in. And that's because the vast majority of the judges in this court believe that this is a not uniquely scientific area that's appropriate for expert testimony.

Moreover, while acknowledging this court's statement in Green that “there may be cases in which a jury would find such testimony helpful,” 718 A.2d at 1051, the prosecutor argued for a somewhat curious construction of the Green opinion:

It doesn't say that there are cases where that would be helpful, but there may be at some point somewhere down the road a possibility.

This is not the case. It would be our position that in fact there's never a case where the type of expert testimony they are seeking to introduce is appropriate because it would usurp the very gut of what the jurors are here to do. The jurors are here to assess credibility.

(Emphasis added.)

In fact, and contrary to the prosecutor's argument, we made it clear in Green, 718 A.2d at 1051, that “Dyas 5 and its progeny do not articulate a per se requirement that all expert testimony about the reliability of eyewitness identification must be excluded.” On the contrary, we explained in Green, 718 A.2d at 1051, that

the Dyas case and its progeny simply upheld discretionary calls by the trial court in the circumstances presented. Dyas does not exclude expert testimony about the reliability of eyewitness identification for all purposes and under all circumstances, even where a trial court, in its discretion, believes the jurors might find such testimony truly helpful. Conversely, a determination by the trial court excluding such testimony as not “beyond the ken of the average layman” is a ruling only that upon the particular proffer made and in the concrete setting of that case, the possible assistance of the expert testimony to the jury is insufficient to outweigh the potential for distracting the jury or supplanting its customary role in evaluating credibility. Under Dyas, as under any case concerning the admissibility of expert testimony, we will review the trial court's decision for abuse of discretion, whether the trial court admits or excludes the proffered testimony. See Oliver v. United States, 711 A.2d 70, 73 (D.C.1998) (per curiam) (“It is well established that a trial judge has broad discretion to admit or exclude expert testimony, and that a decision either way should be affirmed unless it is manifestly erroneous.”) (quoting Spencer v. United States, 688 A.2d 412, 417 (D.C.1997)); cf. General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (“A court of appeals applying ‘abuse of discretion’ review to such rulings may not categorically distinguish between rulings allowing expert testimony and ruling which disallow it.”) In other words, Dyas and its progeny do not articulate a per se requirement that all expert testimony about the reliability *1288 of eyewitness identification must be excluded. (Emphasis added.) We further stated in a footnote:

In State v. Schutz, 579 N.W.2d 317 (Iowa 1998), the Iowa Supreme Court overruled its 1979 decision that established a per se rule excluding expert witness testimony on eyewitness identification. The court noted that it had found no appellate court other than Iowa that had such a per se rule. See id. at 320. It also noted that most of the scientific literature on the subject had been published subsequent to the 1979 decision. See id. at 319-20. The Schutz court cited a number of recent decisions that upheld the admission of such expert testimony or even held its exclusion to be an abuse of discretion. See id.

Id. at 1051 n. 9. Green thus stands for the proposition that, in exercising his or her discretion with respect to the admission of proffered expert testimony such as Dr. Penrod's, the trial judge must consider the “particular proffer made” in the “concrete setting of [the particular] case,” in light of each of the three Dyas factors. 6 In this case, the trial judge's inquiry regarding the “score” among Superior Court judges suggests that he may initially have been leaning towards the inflexible view favored by the government, namely, that expert testimony is never admissible in an eyewitness identification case. Later in the hearing, however, the judge took a more nuanced position, and he sensibly declined

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 Benn v. U.S., 978 A.2d 1257 (2009) to adopt a per se rule. The judge stated that in his experience “the worst kind of eyewitness cases are one-witness identification cases,” but that “when we have five eyewitness[es] ... who positively or almost positively identify somebody, you feel much more confident about the accuracy of the overall identification process than you do if it's only one witness.” He added:

“I don't think this is one of those cases that Green ... talks about where this kind of testimony would be helpful ... I don't want to be construed as saying I would never allow it. But I don't think this is the right case. I just don't.”

Because the judge thus ultimately disclaimed adherence to any per se rule excluding expert testimony in all eyewitness identification cases, it cannot fairly be said that he failed to exercise discretion.

The judge did not, however, allude at all to the specifics of the defense proffer or to the proposed content of Dr. Penrod's testimony. According to Benn's counsel, Dr. Penrod was prepared to testify that, according to his empirical research, (1) there exists only a moderate correlation between a witness' confidence or certainty in an identification and its actual accuracy; (2) over time, witnesses may grow increasingly confident in the accuracy of their identification, on account of influences that have no bearing on reliability; (3) witnesses are highly susceptible to unconscious influences during identification procedures; (4) stress and the presence of a weapon reduce, rather than enhance, accurate recollection and perception; and (5) the accuracy of an identification diminishes when the *1289 witness has only a short time to observe the assailant, especially when more than one person participated in the criminal activity. The gravamen of Dr. Penrod's evidence would have been that many of the conclusions supported by the research are unknown to lay jurors, and that some of these conclusions are counter-intuitive. The judge did not analyze, or even mention, any of the specific subjects regarding which Dr. Penrod was prepared to testify, nor did he focus on how such specific testimony would bear on the three Dyas factors in the context of the identification testimony in this case.

In my view, it is fair to say the judge started with the conception that exclusion of expert testimony regarding the reliability of eyewitness identification of strangers was the norm, and that at least in most cases, such testimony would not be helpful. Further, although, as the hearing proceeded, the judge wisely disclaimed adherence to a per se rule of exclusion, and although he appropriately differentiated between a single positive identification and five positive identifications, he did not focus “upon the particular proffer made” in “the concrete setting of [this] case” to determine whether Dr. Penrod's testimony would assist the jury rather than distract it. Green, 718 A.2d at 1051.

IV.

“The vagaries of eyewitness identification, and the potential for wrongful convictions or adjudications based upon such evidence, have long been recognized in the District of Columbia.” In re As.H., 851 A.2d at 459-60 (citing United States v. Telfaire, 152 U.S.App.D.C. 146, 149-51, 469 F.2d 552, 555-57 (1972) (per curiam)); Crawley v. United States, 320 A.2d 309, 311-12 (D.C.1974). In deciding Benn's first appeal, we also took note of the dangers posed by eyewitness identification of strangers:

The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. Webster v. United States, 623 A.2d 1198, 1204 n. 15 (D.C.1993) (quoting FELIX FRANKFURTER, THE CASE OF SACCO AND VANZETTI (1927)). This passage by Professor (later Justice) Frankfurter was also quoted in United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). See also Wehrle v. Brooks, 269 F.Supp. 785, 792 (W.D.N.C.1966), aff'd, 379 F.2d 288 (4th Cir.1967) (“[p]ositive identification of a person not previously known to the witness is perhaps the most fearful testimony known to the law of evidence”); accord Webster, supra, 623 A.2d at 1204 (quoting Wehrle); Jackson v. Fogg, 589 F.2d 108, 112 (2d Cir.1978) (“convictions based solely on testimony that identifies a defendant previously unknown to the witness are highly suspect”) (internal brackets omitted).

Benn I, 801 A.2d at 145 n. 11.

In light of “the possibility that a mistaken identification may send an innocent person to prison,” As.H., 851 A.2d at 460 n. 7, appellate judges have an obligation to draw upon their own experience and common sense to ensure that a verdict of “guilty” based on eyewitness identifications by strangers is in keeping with the facts. See Crawley, 320 A.2d at 313. The increasing judicial acceptance of expert testimony on this subject is grounded in the concern that an innocent defendant may be found guilty. In this case, however, the trial judge indicated that he found such concerns groundless. When Benn's attorney cited this court's statement in Benn I that the testimony of stranger eyewitnesses is “proverbially untrustworthy,” the judge, remarked:

*1290 THE COURT: That seems one of the-to be one of these revealed truths in the law that somebody said about 100 years ago and it's picked up in opinion after opinion after opinion. And we don't know that that's so. I don't know that's so. And I don't know that Penrod knows that it's so either.

Subsequently, the judge reiterated the same theme:

But I don't-I'm not convinced in any way when an appellate court says stranger-to-stranger identification has some danger of misidentification. I think, you know, it just doesn't-I don't know why they are in any position to make that statement case after case, year after year, century after century, if you will.

The hazards of wrongful convictions resulting from mistaken identifications of strangers are not imaginary. As I have noted, Professor (later Justice) Felix Frankfurter wrote more than eighty years ago that these dangers had been established “by a formidable number of instances in the records of English and American trials.” FRANKFURTER, THE CASE OF SACCO AND VANZETTI (1927). Justice Frankfurter's thesis remained valid forty years later, when the Supreme Court quoted his work in Wade, 388 U.S. at 228, 87 S.Ct. 1926, and the number of miscarriages of justice resulting from faulty identifications had grown even more “formidable.” The problem remains with us today; indeed, the availability in recent years of DNA evidence has demonstrated the extent and pervasiveness of the problem:

Every major study of wrongful convictions in the last decade has concluded that eyewitness misidentification is the most common cause of wrongful convictions in America. Of the first 200 DNA- based exonerations, 79% of the cases involved an eyewitness misidentification.

Professor Cynthia E. Jones, The Right Remedy for the Wrongly Convicted: Judicial Sanctions for the Destruction of DNA Evidence, 77 Fordham L.Rev. 2893, 2929 (May 2009) (footnote omitted); see JENNIFER THOMPSON-CANNINO and RONALD COTTON, PICKING COTTON: OUR MEMOIR OF INJUSTICE AND REDEMPTION (St. Martin's Press 2009).

The decisions of the Supreme Court and of this court recognizing the potential for misidentification when the accused is a stranger to the witness are grounded in reality. They provide the legal context in which judicial discretion must be exercised at the trial court level. Given the fact that at the time of the hearing, expert testimony regarding eyewitness identification had seldom, if ever, been admitted in the Superior Court, and considering that no decision excluding such testimony had ever been reversed by this court, the trial judge's unwillingness to admit such evidence in this case is certainly understandable. Nevertheless, in rejecting the appellate precedents which defined the legal context under which the issue arose, 7 the trial judge did not exercise his discretion in conformity with the applicable legal standards.

Towards the conclusion of the hearing regarding Professor Penrod's proposed *1291 testimony, the trial judge, having previously indicated that he disagreed with the concerns of this court and of other appellate courts regarding the reliability (or

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 17 Benn v. U.S., 978 A.2d 1257 (2009) lack thereof) of stranger eyewitness testimony generally, disclosed that he was likewise unpersuaded by this court's evaluation of the strength of the specific eyewitness testimony at Benn's first trial. The judge stated:

I'm not impressed by [the court's] analysis from-as far as the quality of the eyewitness identifications in this case either. That does not impress me at all one way or the other.

In volunteering this comment, the judge was obviously referring to the passage in Benn I, quoted in Part II of this opinion, in which this court stated, that “closer scrutiny places the strength of the [prosecution's] case in substantial doubt.” 801 A.2d at 145.

As I have previously noted, the court's assessment of the government's case was a part of its holding that the judge's erroneous evidentiary ruling at Benn's first trial was not harmless. Further, the decision whether to admit expert testimony on behalf of the defendant depends in substantial part on the strength of the government's evidence. “The opinions that rule that the exclusion of the expert testimony was or may have been error are typically those where there was little or no evidence to corroborate the eyewitness identification.” Hager, 856 A.2d at 1149 (quoting Commonwealth v. Santoli, 424 Mass. 837, 680 N.E.2d 1116, 1119 (1997)).

At the time that the judge ruled on the admissibility of Dr. Penrod's proposed testimony, the evidence at Benn's first trial constituted the only material available to him regarding the strength of the government's evidence. The Benn I trial was before a different judge, and the trial judge in the present case had no more information regarding the demeanor of the witnesses than this court had when it decided Benn I. If the judge believed, as he plainly did, that the identification testimony was more compelling than this court thought it was, then that belief necessarily encouraged him to exclude the expert evidence more readily than he would have done if he had believed the evidence to be weaker. It therefore follows that, having declared that he disagreed with this court's evaluation of the strength of the identifications, the judge excluded the proposed expert testimony on the basis of a view of the relevant facts and law which was at variance with an important part of the reasoning of the appellate court in Benn I. In other words, on the narrow point at issue, the judge applied his own legal standard, rather than the standard articulated by this court.

As we noted in Benn I, 801 A.2d at 145, it is often difficult to make an accurate assessment of the strength of a case when the judge making the assessment has not seen or heard the witnesses. This difficulty confronts a successor trial judge just as it does an appellate court. To be sure, reasonable people can read the same transcript and come to different conclusions as to the persuasiveness of the government's evidence. In this case, however, the appellate court had addressed the point in some detail and, for reasons set forth in some detail in its opinion, it had concluded that the eyewitness testimony was less than overwhelming. Indeed, this was an important reason for reversal in Benn I. Under these circumstances, I do not believe that the trial judge, who had already revealed that he did not share the concerns of appellate courts generally regarding the reliability of eyewitness identifications of strangers, was free, in exercising his discretion, simply to reject this court's reasoning in Benn I.

*1292 VI.

This is not an easy case. At the time the judge made his decision, a ruling admitting expert testimony such as that proffered here by the defense would have been a rarity, and certainly a departure from the norm in the Superior Court. Moreover, notwithstanding the problems with the particular eyewitness testimony enumerated in Benn I, the government presented five witnesses, all members of the same family, none of whom had any apparent reason to lie, and all of whom ultimately made positive identifications of Benn. The mutual corroboration provided by the five identifications did not necessarily make this an overwhelming prosecution case, but their collective weight also should not be minimized. Nevertheless, with the record as it stands, I cannot be confident that the judge exercised his discretion in conformity with correct legal principles. Accordingly, I join my colleagues in remanding the case.

Footnotes * Judge Schwelb was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on June 24, 2006. 2 376 A.2d 827 (D.C.), cert. denied, 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977). 3 Cf. Steele v. D.C. Tiger Mkt., 854 A.2d 175, 181 (D.C.2004) (describing the balance between admissible and inadmissible expert evidence as “easier to state in the abstract” and requiring “a considerable measure of judicial discretion” to implement). 4 See State v. Chapple, 135 Ariz. 281, 660 P.2d 1208, 1219 (1983) (noting that “the consumption of time involved in taking testimony of the expert witness in question was certainly not ‘undue’ in comparison with the importance of the issue”). 5 Mindombe v. United States, 795 A.2d 39, 43 (D.C.2002); see People v. Drake, 7 N.Y.3d 28, 817 N.Y.S.2d 583, 850 N.E.2d 630, 633 (2006) (noting that trial court should instruct jurors that “if they accept the expert's testimony, they may consider it along with all other evidence in the case in determining whether the [state has] proved the defendant's guilt beyond a reasonable doubt”). 6 801 A.2d 132 (D.C.2002). 7 See id. at 136-39. 8 See D.C.Code §§ 22-2401, -3202 (1981) (current versions at D.C.Code § 22-2101, -4502 (2001)). 9 See D.C.Code §§ 22-2101, -3202 (1981) (current versions at D.C.Code § 22-2001, -4502 (2001)) (conspiracy); D.C.Code § 22-3204(b) (1981) (current version at D.C.Code § 22-4504 (2001)) (possession of a weapon during a crime of violence). 10 At the first trial, appellant was convicted of murder and sentenced to a total of thirty years to life imprisonment. At the second trial, appellant was sentenced to a total of fourteen to forty-two years imprisonment. 11 See Benn I, 801 A.2d at 135. 12 Detective Mayberry, of the Metropolitan Police Department, told the Mahoneys to “[t]ake a look at [the pictures] and tell me if one of the people is the people that came into your apartment with Sean.” The array was composed of pictures of appellant and of foils who were selected to look like the picture of appellant, and not geared to the description of the culprit given by the Mahoneys. Detective Mayberry, who constructed the photo array, was asked, “when you're thinking about what characteristics to go on, you pay attention to what the witnesses have told you they saw when they saw the suspect, right?” The detective responded, “Not so much as that. Once a suspect is developed and there is a photograph of that suspect, then in making a photo spread then I will go along the lines of the picture itself.” The record does not reveal how the police came to identify appellant as a suspect. 13 Curiously, Butch Mahoney testified that he remembered the family gathering in one of the two bedrooms in the apartment (he could not recall whether his sister April was present). He described how each would go from the bedroom to the dining room to view the photographs. Then, he testified, each would go to the second of the two bedrooms (Willie Mae's) in the apartment. Even after being reminded that he had not been present when Darren, Marcelle, and Willie Mae made their identifications, Butch insisted that each one left the dining room, after making an identification, and went to Willie Mae's bedroom. 14 See Benn I, 801 A.2d at 145. 15 See id. at 134. 16 At trial, April testified that she looked “[the taller man] dead in his face” and described his appearance. Her testimony was inconsistent with a statement she had given to the police in 1993, shortly after the kidnapping and murder, in which she said, “the only thing I really remember was the glasses[;] I tried not to look at [the tall man] in his face.” Willie Mae Mahoney said at trial that she focused her attention on the taller man; she did not want to look at the shorter man because he had a gun. However, during cross-examination, she acknowledged that at the time when the men were in her home, she “may have thought” that both men were armed. 17 Peterson v. United States, 657 A.2d 756, 760 (D.C.1995) (quoting Beatty v. United States, 544 A.2d 699, 701 (D.C.1988)). 18 United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); see also Wehrle v. Brooks, 269 F.Supp. 785, 792 (W.D.N.C.1966) (“Positive identification of a person not previously known to the witness is perhaps the most fearful testimony known to the law of evidence.”), aff'd, 379 F.2d 288 (4th Cir.1967). 19 Webster v. United States, 623 A.2d 1198, 1204 n. 15 (D.C.1993) (quoting Crawley v. United States, 320 A.2d 309, 312 (D.C.1974)); see also Wade, 388 U.S. at 228, 87 S.Ct. 1926 (“The vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification.”); United States v. Stevens, 935 F.2d 1380, 1400 (3d Cir.1991) (“That witnesses ofttimes profess considerable confidence in erroneous identifications is fairly counterintuitive.”); In re AS.H., 851 A.2d 456, 459-60 (D.C.2004) (citing cases spanning five decades that cast doubt on the reliability of eyewitness identifications); In re L.G.T., 735 A.2d 957, 964 (D.C.1999) (Schwelb, J., concurring dubitante) (“This court and other courts have repeatedly recognized the unreliability of identification of strangers made on the basis of brief observation under stressful conditions.”). 20 ELIZABETH F. LOFTUS, JAMES M. DOYLE & JENNIFER E. DYSART, EYEWITNESS TESTIMONY: CIVIL AND CRIMINAL § 1-3, at 3 (4th ed. 1997), cited in Strickler v. Greene, 527 U.S. 263, 307, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). 21 Brandon Garrett, Judging Innocence, 108 COLUM. L.REV. 55, 81 (2008).

22 Saul M. Kassin, et al., On the “General Acceptance” of Eyewitness Testimony Research: A New Survey of the Experts, 56 AMERICAN PSYCHOLOGIST 405, 407 (2001) [hereinafter “Kassin, et al., On the ‘General Acceptance’ ”]. In its brief on appeal, the government argued that the Kassin study has been criticized and expert testimony relying on it excluded, citing People v. LeGrand (LeGrand I), 196 Misc.2d 179, 747 N.Y.S.2d 733, 744-45 (Sup.Ct.2002) (questioning the selection and size of the pool of experts surveyed), aff'd, 28 A.D.3d 318, 814 N.Y.S.2d 37 (App.Div.2006), rev'd, 8 N.Y.3d 449, 835 N.Y.S.2d 523, 867 N.E.2d 374 (2007). That judgment was subsequently reversed by the New York Court of Appeals, which bypassed the question of the adequacy of the Kassin study because “the defense expert's testimony considered sufficient studies to confirm that the principles upon which the expert based his conclusions are generally accepted by social scientists and psychologists.” People v. LeGrand (LeGrand II), 8 N.Y.3d 449, 835 N.Y.S.2d 523, 867 N.E.2d 374, 379 (N.Y.2007). Although we are not generally bound by the rulings in another jurisdiction, we find that the New York high court's analysis is thorough and persuasive. See also People v. Williams, 14 Misc.3d 571, 830 N.Y.S.2d 452, 466 (Sup.Ct.2006) (concluding that expert testimony was admissible because proffered expert rebutted challenge to Kassin study). Here, even though the expert proffered by appellant was available to testify, as we discuss infra, the trial court did not consider the specific proffer made, or take the opportunity to question Professor Penrod, but appeared to reject the expert testimony outright. We refer to the Kassin study not as an endorsement of its methodology, but to highlight some of the scientific research that was proffered to the trial court for its consideration. 23 See Saul M. Kassin, et al., The “General Acceptance” of Psychological Research on Eyewitness Testimony: A Survey of the Experts, 44 AM. PSYCHOLOGIST 1089 (1989) [hereinafter “Kassin, et al., The ‘General Acceptance’ ”]. 24 The sixteen were deemed sufficiently reliable to be presented to a jury, based on agreement by at least 80% of the experts surveyed. They include: (1) that the wording of questions and instructions can influence an eyewitness's testimony about events and identification, (2) that an eyewitness's confidence can be affected by factors unrelated to accuracy, (3) that exposure to mug shots increases the likelihood of that suspect being selected as the perpetrator, (4) that eyewitnesses are more accurate when identifying members of their own race, (5) that the presence of a weapon reduces the accuracy of an eyewitness's perception, (6) that an eyewitness is susceptible to inadvertently substituting the face of a person seen later for that of the actual perpetrator, and (7) that an eyewitness's confidence in an identification does not correlate with the accuracy of the identification. According to the experts surveyed, anywhere between 5 and 61% agreed that these scientific findings were within the “common sense” of lay jurors, depending on the specific finding. See Kassin, et al., On the “General Acceptance,” supra note 22, at 412 tbl. 4. 25 See Kassin, et al., The “General Acceptance,” supra note 23, at 1091 tbl. 1. 26 Studies show that most potential jurors believe that a person's memory functions like a camera, capable of retrieving a captured image on demand. See NATHAN R. SOBEL, EYEWITNESS IDENTIFICATION: LEGAL AND PRACTICAL PROBLEMS § 1:1, at 3 (2007-2 rev.), cited in Reese v. Fulcomer, 946 F.2d 247, 262 (3d Cir.1991). But memory, according to studies, is influenced by a variety of factors such as stress, including the stress induced by the presence of a weapon. LOFTUS, DOYLE & DYSART, supra note 20, § 2-9, at 33-34; BRIAN L. CUTLER & STEVEN PENROD, MISTAKEN IDENTIFICATION: THE EYEWITNESS, PSYCHOLOGY, AND THE LAW 101 (1995) (“[T]he presence of a weapon during a crime attracts the attention of the witness to the weapon, leaving less attention to the perpetrator's facial and physical characteristics.”), cited in Commonwealth v. Cruz, 445 Mass. 589, 839 N.E.2d 324, 332 (2005). 27 See Kassin, et al., On the “General Acceptance,” supra note 22, at 412 tbl. 4. 28 See Kassin, et al., The “General Acceptance,” supra note 23, at 1094 tbl. 4. 29 Of the thirteen new propositions tested since the 1989 study, six were identified as presently reliable by the experts. These include: [1] that eyewitness confidence is malleable and influenced by factors unrelated to accuracy ..., [2] that exposure to mug shots of a suspect increases the likelihood of his or her selection from a subsequent lineup ..., [3] that young children are more vulnerable than adults to suggestion and other social influences ..., [4] that alcohol impairs eyewitness performance ..., [5] that eyewitnesses find it relatively difficult to identify members of a race other than their own ..., and [6] that the risk of false identification is increased by the use of a simultaneous as opposed to sequential presentation format. Kassin, et al., On the “General Acceptance,” supra note 22, at 410-11. 30 See id. at 412 tbl. 4; see also Kenneth Deffenbacher, Eyewitness Accuracy and Confidence: Can We Infer Anything About Their Relationship?, 4 L. HUM. BEHAV.. 243, 258 (1980) (cited in the defense proffer and explaining that correlation varies based upon the “processing conditions” of an identification). 31 See Kassin, et al., On the “General Acceptance,” supra note 22, at 412 tbl. 4. 32 See Frye v. United States, 54 App.D.C. 46 46, 47, 293 F. 1013, 1014 (1923); see also CUTLER & PENROD, supra note 26, at 217. 33 See, e.g., Green v. United States, 718 A.2d 1042, 1053 (D.C.1998) (citing cases), cert. denied, Landon v. United States, 526 U.S. 1011, 119 S.Ct. 1156, 143 L.Ed.2d 222 (1999) (citing cases); see also Tanja Rapus Benton, et al., On the Admissibility of Expert Testimony on Eyewitness Identification: A Legal and Scientific Evaluation, 2 TENN. J.L. & POL'Y 392, 413 (2006); LOFTUS, DOYLE & DYSART, supra note 20, § 13-11 at 374 (“Courts that have excluded expert testimony have used a variety of formulations ... [with

some holding] that expert testimony, while valid and interesting, simply tells jurors things that they already know and, therefore, fails to aid the trier of fact.”); Id. § 13-11, at 373 n. 57 (citing cases). 34 See Kassin, et al., On the “General Acceptance,” supra note 22, at 412. 35 LOFTUS, DOYLE & DYSART, supra note 20, § 6-5, at 130; see also Keith A. Findley, Learning From Our Mistakes: A Criminal Justice Commission to Study Wrongful Convictions, 38 CAL. W.L.REV. 333, 334 (2002) (“[H]ard evidence shows that jurors do not understand the psychological processes at work in an eyewitness identification and tend to rely an unwarranted extent on such identifications.... Nonetheless, courts in many jurisdictions routinely continue to exclude expert testimony designed to educate jurors on these matters, often on the ground that such information is within the common knowledge of jurors or would usurp the role of the jury.” (footnote omitted)); Deffenbacher, supra note 30, at 258 (“[T]he apparent majority of American judges, ... acting within permitted judicial discretion, do not allow expert testimony to be admitted into evidence.”). 36 See LOFTUS, DOYLE & DYSART, supra note 20, § 6-6, at 130 (citing Saul M. Kassin & Kimberly A. Barndollar, The Psychology of Eyewitness Testimony: A Comparison of Experts and Prospective Jurors, 22 J. APPLIED SOCIAL PSYCHOLOGY 1241, 1246 (1992)). 37 See id. 38 See id. § 6-6, at 130-31 (citing Kassin & Barndollar, supra note 36, at 1241). 39 See id.; see also Noah Clements, Flipping a Coin: A Solution for the Inherent Unreliability of Eyewitness Identification Testimony, 40 IND.L.REV. 271, 282 (2007) (“If there is one thing that the research is virtually unanimous on, it is this: there is no correlation whatsoever between eyewitness certainty and accuracy.”). 40 Dyas, 376 A.2d at 832 (alteration in original) (quoting MCCORMICK ON EVIDENCE, § 13, at 29-31 (E. Cleary, 2d ed. 1972)). 41 54 App.D.C. at 46, 293 F. at 1014. 42 Dyas, 376 A.2d at 832. 43 Frye, 54 App.D.C. at 47, 293 F. at 1014. 44 Id. at 47, 293 F. at 1014; see Ibn-Tamas v. United States, 407 A.2d 626, 638 (D.C.1979) (“[S]atisfaction of the third Dyas criterion [involves] a determination of whether there is general acceptance of a particular scientific methodology, not an acceptance, beyond that, of particular study results based on that methodology.”). In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court rejected Frye's requirement of “general acceptance” as a precondition to admissibility and required instead that the trial judge, acting as “gatekeeper,” determine whether the proffered expert testimony is “scientific knowledge,” so that “evidentiary reliability will be based upon scientific validity.” Id. at 590 & n. 9, 113 S.Ct. 2786; cf. People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97, 633 N.E.2d 451, 464 (1994) (Kaye, C.J., concurring) (noting that the “general acceptance” prong of the Frye test “emphasizes ‘counting scientists' votes rather than on verifying the soundness of a scientific conclusion’ ”) (quoting Jones v. United States, 548 A.2d 35, 42 (D.C.1988)). Daubert has not been adopted in this jurisdiction. 45 See Hager v. United States, 856 A.2d 1143, 1147 (D.C.2004). 46 Ibn-Tamas, 407 A.2d at 632 (quoting Fennekohl v. United States, 354 A.2d 238, 240 (D.C.1976)); see also Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (“Few rights are more fundamental than that of an accused to present witnesses in his own defense.”); Ferensic v. Birkett, 501 F.3d 469, 480 (6th Cir.2007) (finding error in a trial court's exclusion of expert testimony on the reliability of eyewitness identifications because the defendant had been “denied his Sixth Amendment right to present a defense”). 47 See, e.g., Nixon v. United States, 728 A.2d 582, 589 (D.C.1999) (approving use of expert testimony on Battered Women Syndrome), cert. denied, 528 U.S. 1098, 120 S.Ct. 841, 145 L.Ed.2d 707 (2000); Oliver v. United States, 711 A.2d 70, 73 (D.C.1998) (permitting expert testimony on behavioral characteristics and psychological dynamics of sexually-abused children); see also Blakeney v. United States, 653 A.2d 365, 369 (D.C.1995) (permitting expert testimony on habits of drug traffickers). 48 Defense counsel again moved for the admission of expert testimony mid trial, noting the government's emphasis on the witnesses' “certainty” in their identification of appellant. 49 In 1999, then-Attorney General Janet Reno commissioned an investigation into the first twenty-eight cases of persons who were convicted and were later exonerated by DNA evidence. This study documented the reality of wrongful convictions that had been based on erroneous eyewitness identification. See generally NATIONAL INSTITUTE OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, U.S. DEPT. OF JUSTICE EYEWITNESS EVIDENCE: A GUIDE FOR LAW ENFORCEMENT (1999) [hereinafter EYEWITNESS EVIDENCE]. The resulting report fueled an expansion in the research into eyewitness reliability, and led the Attorney General to conclude that: “Even the most honest and objective people can make mistakes in recalling and interpreting a witnessed event; it is the nature of human memory.” Id. at iii. A more recent study, of the first two hundred persons exonerated by DNA evidence, disclosed that in 79% of the cases there had been at least one erroneous eyewitness identification. See Garrett, supra note 21, at 60. In 28% of these cases, the victim's erroneous identification was the central evidence supporting conviction. See id. at 79.

50 The factors included: (1) “[a] high level of stress and emotional arousal at the time of the eyewitness' observations may make the eyewitness less likely to retain an accurate memory and perception of details of an event”; (2) “[a] brief period of interaction decreases an eyewitness' ability to perceive and remember accurately the details of an assailant's physical appearance”; (3) “[t]he presence of a weapon, ... causes the witness not to pay close attention to how the assailant actually appears”; (4) “general[ly], the level of an eyewitness' confidence is only modestly correlated to the likelihood that the eyewitness' identification is accurate”; (5) “[a] witness may over time become increasingly confident in the accuracy of his [or her] identification ... ha[ving] no correlation whatsoever to the likelihood that the eyewitness' identification is accurate”; (6) “subjects are susceptible to suggestion in making their eyewitness identifications”; (7) “[t]he absence at show-ups or in photographic arrays of any ‘foils'-non-suspects who resemble descriptions given previously by the eyewitness-increases the likelihood that an eyewitness will, for lack of any choice of comparison, incorrectly identify ... one of the persons present in the line-up or array”; (8) “[w]itnesses readily incorporate suggestions from others into their memory for events”; (9) “[t]he passage of time between the incident [and] the identification procedure has a marked effect on the accuracy of a subsequent identification”; (10) “knowing that someone else positively identified the same suspect has also been found to inflate individuals' confidence in their identifications”; and (11) “[t]he type of identification procedures used by police officers, and the way the police conduct those procedures, has a significant impact on the accuracy of the identifications produced by those procedures.” 51 See Amy L. Bradfield, Gary L. Wells & Elizabeth A. Olson, The Damaging Effect of Confirming Feedback on the Relation Between Eyewitness Certainty and Identification Accuracy, 87 J. APPLIED PSYCHOLOGY 112, 117 (2002), cited in State v. Ledbetter, 275 Conn. 534, 881 A.2d 290, 312 (2005). 52 For example, U.S. Department of Justice guidelines explain that prior to conducting a photo array, an eyewitness should be instructed “that the person who committed the crime may or may not be present,” EYEWITNESS EVIDENCE, supra note 49, at 19; see also Gary L. Wells & Elizabeth Loftus, Eyewitness Memory for People and Events, in 11 HANDBOOK OF PSYCHOLOGY 157-58 (A.M. Goldstein, ed. 2003) (“[F]ailure to give explicit instructions to the eyewitness that emphasize that the perpetrator might not be in the lineup leads eyewitnesses to pick someone from the lineup at very high rates regardless of whether the perpetrator is present.”), that they should “not ... discuss the identification procedure or its results with other witnesses involved in the case,” EYEWITNESS EVIDENCE, supra note 49, at 34, and caution that “investigator's unintentional cues (e.g., body language, tone of voice) may negatively impeach the reliability of eyewitness evidence.” Id. at 9. 53 In the motion, counsel also asserted that Professor Penrod's testimony was important to show that the government had failed to conduct a reliable and thorough investigation, invoking the right to present such a defense as enunciated in Kyles v. Whitley, 514 U.S. 419, 445, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), Greer v. United States, 697 A.2d 1207, 1209-11 (D.C.1997), and Allen v. United States, 603 A.2d 1219, 1222-23 (D.C.), cert. denied, 505 U.S. 1227, 112 S.Ct. 3050, 120 L.Ed.2d 916 (1992). This argument is not raised on appeal. 54 376 A.2d at 832. 55 389 A.2d 1356 (D.C.1978). 56 448 A.2d 253 (D.C.1982). 57 451 A.2d 859 (D.C.1982). 58 According to the prosecutor, of the judges on the Superior Court of the District of Columbia, “only one” has allowed expert evidence on eyewitness identifications. Appellant's proffer referred to two cases in which Superior Court judges had permitted such expert testimony; one of the judges has since been serving on the U.S. District Court for the District of Columbia. We do not know whether this information was (or is) correct. As we discuss infra, although the statistic may be of interest, it cannot be dispositive on the question of admissibility in a particular case. 59 Hager, 856 A.2d at 1147 (quoting Green, 718 A.2d at 1050). 60 See Johnson v. United States, 398 A.2d 354, 361 (D.C.1979). 61 718 A.2d at 1051. 62 See Ibn-Tamas, 407 A.2d at 638; see also United States v. Moore, 786 F.2d 1308, 1312 (5th Cir.1986) (“The scientific validity of the studies confirming the many weaknesses of eyewitness identification cannot be seriously questioned at this point.”) (quoting Abney, Expert Testimony and Eyewitness Identification, 91 CASE & COMMENT 26, 29 (Mar./ Apr. 1986)). Under the more relaxed Daubert standard, the judicial role also is limited to assessing the reliability of the proffered evidence, and it is not the function of the judge to take issue with the substance of research findings that are determined to be reliable. See 509 U.S. at 593-94, 113 S.Ct. 2786 (pointing to factors that might be considered by trial judges: whether a theory or technique is testable and has been tested; whether it has been subject to peer review and publication; the rate of error of the specific scientific technique; the existence of standards controlling the technique employed; and the degree of acceptance within the scientific community). 63 (emphasis added).

64 See 7 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1920, at 18 (Chadbourn rev. 1978) (“A phrase often put forward as explaining why the testimony we are concerned with is excluded, declares that the witness, if allowed to express his ‘opinion,’ would be ‘usurping the functions of the jury.’ ... [T]he phrase is so misleading, as well as unsound, that it should be entirely repudiated. It is a mere bit of rhetoric.” (footnotes omitted)); see also United States v. Downing, 753 F.2d 1224, 1226 (3d Cir.1985) (“[Federal Rule of Evidence 704] rejects as ‘empty rhetoric’ the notion that some testimony is inadmissible because it usurps the ‘province of the jury.’ ” (quoting WIGMORE, supra, § 1920, at 17)); People v. Jones, 73 N.Y.2d 427, 541 N.Y.S.2d 340, 539 N.E.2d 96, 98 (1989) (“Expert opinion testimony is used in partial substitution for the jury's otherwise exclusive province which is to draw ‘conclusions from the facts.’ It is a kind of authorized encroachment in that respect.”) (quoting People v. Cronin, 60 N.Y.2d 430, 470 N.Y.S.2d 110, 458 N.E.2d 351, 352 (1983)). 65 Rivas v. United States, 783 A.2d 125, 133 (D.C.2001) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). 66 John C. Brigham & Robert K. Bothwell, The Ability of Prospective Jurors to Estimate the Accuracy of Eyewitness Identifications, 7 L. & HUM. BEHAV.. 19, 20 (1983); see also LOFTUS, DOYLE & DYSART, supra note 20, § 6-2, at 124 (“Although sometimes attempts to discredit the eyewitness succeed in making the eyewitness less persuasive than one who is unimpeached, generally even discredited eyewitness testimony carries some weight.”). 67 Daubert, 509 U.S. at 588, 113 S.Ct. 2786 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988)). 68 Id. at 596, 113 S.Ct. 2786. 69 Johnson, 398 A.2d at 364 (application of a general rule to all cases without regard to facts before the court is an abuse of discretion). 70 We are aware that the trial judge said that this was “the first time I've ever had a motion like this.... And I don't want to be construed as saying I would never allow it. But I don't think this is the right case.” 71 376 A.2d at 832. 72 See Jackson v. United States, 420 A.2d 1202, 1203 n. 2 (D.C.1979) (en banc) (upholding, in a footnote, exclusion of the “proffered expert psychological testimony on eyewitness identifications,” where trial court concluded proffer was “akin” to that rejected in Dyas and therefore “not ... a proper subject for expert testimony”); Smith, 389 A.2d at 1358-59 (upholding, in a per curiam opinion, exclusion of expert evidence “on the psychological principles underlying eyewitness identification,” where trial court had concluded that the proffer was “similar to the evidence offered [in Dyas,]” and therefore was inadmissible). 73 Smith, 389 A.2d at 1358. 74 448 A.2d at 258. 75 451 A.2d at 866-67. 76 718 A.2d at 1050, 1053. 77 Id. at 1051-52. 78 Id. at 1052. 79 Id. at 1053. 80 See id. at 1053. 81 856 A.2d at 1147. 82 Id. at 1149. 83 953 A.2d 1055 (D.C.2008). 84 Id. at 1056. 85 Id. at 1063. 86 407 A.2d at 635 (internal citations omitted) (quoting Douglas v. United States, 386 A.2d 289, 295 (D.C.1978); Johnson, 398 A.2d at 363-67). 87 Green, 718 A.2d at 1051. 88 Burgess, 953 A.2d at 1063 n. 12; see Jules Epstein, The Great Engine That Couldn't: Science, Mistaken Identifications, and the Limits of Cross-Examination, 36 STETSON L.REV. 727, 735-36 (2007) (“[O]ver a thirty-year period, the study of eyewitness perception, memory, and recall exploded.”). 89 Hager, 856 A.2d at 1147 (quoting People v. Lee, 96 N.Y.2d 157, 726 N.Y.S.2d 361, 750 N.E.2d 63, 66 (2001)). 90 Provided that the ruling is on point and recent enough to reflect current scientific knowledge, prior rulings on specific proffers of scientific evidence are binding. See, e.g., Mindombe, 795 A.2d at 42 (“[T]his court has previously recognized that expert testimony involving ‘the behavioral characteristics of child molestation victims, ... [and] the psychological dynamics of a victim of child sexual abuse are beyond the ken of the average juror.’ ”) (alteration in original) (quoting Oliver, 711 A.2d at 73 (internal quotation marks omitted)). The provisos are all-important, however, as different factual settings as well as scientific developments may require that the

court consider afresh whether a particular proffer meets the Dyas standard. On this record, we have no reason to doubt the observation we made in Hager in 2004, that jurors generally lack knowledge about psychological studies regarding the accuracy of identifications. See 856 A.2d at 1147. The more recent studies we discuss earlier confirm it. 91 Green, 718 A.2d at 1051; cf. id. at 1052 (quoting trial judge as saying, “So I am not making this ruling without some cognizance of basically what is out there [in terms of scientific research], but rather I am making this ruling based upon my conclusion that this proffered testimony and evidence do not meet the first prong of the Dyas three-prong test”). 92 See, e.g., Nixon, 728 A.2d at 589 (approving the use of expert testimony on the subject of Battered Women Syndrome); Oliver, 711 A.2d at 73 (permitting expert testimony on effects of child sexual abuse on recollection); cf. Frye, 54 App.D.C. at 47, 293 F. at 1014 (rejecting “systolic blood pressure deception test” because it had not gained general acceptance). 93 See supra note 21. One example is the well-known case of Jennifer Thompson who, in court, identified Ronald Cotton as the man she believed had raped her and who was subsequently convicted of the crime. After serving more than eleven years in prison, Cotton was exonerated by DNA evidence. See generally JENNIFER THOMPSON-CANNINO & RONALD COTTON, PICKING COTTON: OUR MEMOIR OF INJUSTICE AND REDEMPTION (2009). In Thompson's words: The man I was so sure I had never seen in my life was the man who was inches from my throat, who raped me, who hurt me, who took my spirit away, who robbed me of my soul. And the man I had identified so emphatically on so many occasions was absolutely innocent. Jennifer Thompson, Editorial, ‘I was Certain, but I was Wrong’, N.Y. TIMES, June 18, 2000, at A15, available at http:// www.nytimes. com/2000/06/18/opinion/i-was-certain-but-i-was-wrong.html. 94 See Hager, 856 A.2d at 1147 (“[I]n a jury trial the judge must exercise discretion to decide whether the proffered expert testimony is likely to assist the jury in the performance of its duties-that is to say, in understanding the evidence, determining the facts that must be found and rendering its verdict.”) (internal quotation marks omitted) (quoting Steele, 854 A.2d at 181). 95 See Green, 718 A.2d at 1052 (noting comment by trial judge that counsel for the defense “left nothing unturned in cross examining [the eyewitness,]” that “there was nothing else [defense counsel] could have asked him about his identifications,” and that “in some respects [defense counsel] made [the eyewitness] out to be silly in front of the jury, through the quality of ... cross-examination”). See generally Christopher M. Walters, Comment, Admission of Expert Testimony on Eyewitness Identification, 73 CALIF.L.REV. 1402, 1403 (1985) (“[R]equirements of corroboration, cross-examination, and jury instructions have often been proposed as alternative remedies to expert testimony on eyewitness reliability.”). 96 Steven Penrod & Brian Cutler, Witness Confidence and Witness Accuracy: Assessing Their Forensic Relation, 1 PSYCHOLOGY, PUB. POL'Y & L. 817, 840 (1995), cited in State v. Guzman, 133 P.3d 363, 370 (Utah 2006) (Durham, C.J., concurring). 97 See Downing, 753 F.2d at 1226 (remanding for further consideration where trial court “refused to admit the testimony of a psychologist offered by the defendant, apparently because the court believed that such testimony can never meet the [requisite] ‘helpfulness' standard of [the Federal Rules of Evidence]”). 98 We note that after the remand ordered by the appellate court in Downing, id., the District Court, after further proceedings, excluded the expert testimony because of a “weak fit” between the proffered scientific testimony and the disputed identification in the case. United States v. Downing, 609 F.Supp. 784, 792 (E.D.Pa.), aff'd mem., 780 F.2d 1017 (3d Cir.1985). 99 Although this opinion for the court and the concurrence may differ in style and emphasis, we perceive no substantive difference in- and take no issue with-the core points made by our concurring colleague as to why a remand is required. 100 See Hager, 856 A.2d at 1149. 101 We are aware of no published opinion of this court, since our decision in Brooks twenty-seven years ago, affirming the exclusion of expert testimony on eyewitness identifications in a case in which the only evidence presented against the defendant was the identification of eyewitnesses who did not know the defendant. 102 Hager, 856 A.2d at 1149; see United States v. Blade, 811 F.2d 461, 465 (8th Cir.1987) (no error in excluding expert witness identification testimony, where multiple eyewitness identifications were presented and were corroborated by the presence of the defendant's identification both in the suspect vehicle and in a jacket found in the path of flight of the driver); United States v. Smith, 736 F.2d 1103, 1107-08 (6th Cir.1984) (no error in excluding expert on eyewitness identifications where multiple eyewitness identifications were presented and physical evidence-the defendant's palm print at robbery site-discredited appellant's alibi). 103 See 718 A.2d at 1048. 104 Id. at 1052. 105 See Ferensic, 501 F.3d at 482 (“The significance of [the proffered expert's] testimony cannot be overstated. Without it, the jury had no basis beyond defense counsel's word to suspect the inherent unreliability of the [two eyewitnesses'] identifications.”); Downing, 753 F.2d at 1227 (remanding for further consideration of expert witness testimony on unreliability of eyewitness identifications because exclusion not harmless where “[t]he government's case against appellant consisted primarily of the testimony of twelve eyewitnesses who, with varying degrees of confidence, testified that appellant was the [perpetrator]” (emphasis added)); People v. McDonald, 37

Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709, 726 (1984) (reversing conviction where “in the testimony of each of the witnesses who identified defendant in the courtroom there were elements that could have raised reasonable doubts as to the accuracy of the identification,” there was no other corroborating evidence, and defendant presented alibi witnesses), overruled in part by People v. Mendoza, 23 Cal.4th 896, 98 Cal.Rptr.2d 431, 4 P.3d 265 (2000) (overruling McDonald to the extent that it stated, in dictum, that a jury must specify the degree of murder to which it assigned guilt). But see United States v. Smith, 156 F.3d 1046, 1053-54 (10th Cir.1998) (no error in refusing to permit testimony of an expert on the unreliability of eyewitness identifications where there were five such identifications, appellant changed his alibi, and the case was “admittedly close”). 106 Our standard instructions recognize that quantity does not necessarily equal quality. Civil Pattern Jury Instruction 2.13 provides: The weight of the evidence is not necessarily determined by the number of witnesses testifying for each side. Rather, you should consider all the facts and circumstances in evidence to determine which of the witnesses you believe. You may find that the testimony of a smaller number of witnesses on one side is more believable that the testimony of a greater number of witnesses on the other side. 107 Benn I, 801 A.2d at 145 (emphasis added) (footnotes omitted). 108 Because the judge who rejected the proffered expert testimony before the second trial was not the same judge who presided over the first trial, this is not a situation where the court had a superior basis to evaluate the eyewitnesses' testimony than did the appellate court in Benn I. 109 In In re AS.H., we held that where an eyewitness's level of doubt in an identification lies within the 20-30% range, the evidence is insufficient (if that is all there is) to convict beyond a reasonable doubt as a matter of law. 851 A.2d at 462. In this case, the question is not whether the evidence is not sufficient to convict-it is more than sufficient, cf. id. at 457-but whether appellant was wrongfully denied an opportunity to present expert evidence that could have enhanced the jury's ability to more accurately assess and question the reliability of the identifications on which the jury would necessarily have to base a finding that appellant was guilty of a violent crime. 110 The prosecutor argued in closing: [T]he key question for you is this: Do you credit the five separate and independent eyewitness identifications of [appellant] as the man who abducted [ ] Williams out their apartment that night? And I submit to you that you should credit it because each and everyone of those testimonies was credible; it was certain; and it was reliable. * * * So the question to ask yourself is: Did you believe these people when they got on the stand? Did they strike you, impress you as truthful people? And how do you do that? You evaluate their demeanor. How did they appear when they were testifying? Did they appear evasive? Or did they appear forthright? * * * And you can evaluate the witnesses based on how they look. Did they look [appellant's] attorneys in the eye when they were testifying? .... * * * Do they have a bias or a prejudice? None was brought out in this case. They didn't ask to be witnesses in this case.... Credibility. Let's talk about the certainty of their identifications of [appellant] as the man who abducted their loved one that night. How certain were they that this is the man who did it? 111 In its proffer to the court, defense counsel asserted that without the support of expert testimony, such arguments by counsel run the risk of being perceived by the jury as unwarranted attacks on honest, truth-telling witnesses. 112 328 U.S. 750, 764-65, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). We need not decide whether the more stringent standard for constitutional error applies. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The government does not contend that the trial court's exclusion of the evidence, if erroneous, was nonetheless harmless, and argues that if this court concludes that the trial court abused its discretion in excluding Dr. Penrod's testimony, “appellant would be entitled only to a remand for further proceedings on his motion.” We have said, however, that prejudice that would warrant reversal is an inherent part of the analysis before a reviewing court may conclude on appeal that the trial court abused its discretion. See Johnson, 398 A.2d at 361. 113 See LeGrand II, 835 N.Y.S.2d 523, 867 N.E.2d at 375-76 (“[W]e hold that where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of [the] defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror.”). 114 Mindombe, 795 A.2d at 46 (internal quotation marks omitted) (quoting State v. Chamberlain, 137 N.H. 414, 628 A.2d 704, 707 (1993)).

115 See Ibn-Tamas, 407 A.2d at 640 (remanding for trial court's consideration of second and third Dyas criteria). 116 Appellant's motion listed eleven specific factors. See supra note 50. 117 The government, at the time it opposed the motion in limine, asserted that it did not have enough time “to retain its own expert to counter the defense testimony.” We are confident that the government will be afforded sufficient time between our decision to remand and the commencement of proceedings on remand in which to procure its own expert if it so wishes. In fairness, appellant also should be permitted to amend the proffer to take into account more recent scientific developments and this opinion. 118 Because we do not decide that the expert testimony must have been permitted, but remand so that the trial judge may complete the appropriate analysis, we stop short of vacating the convictions and ordering a new trial. 1 In their brief, counsel for Benn argued that the trial judge erred in relation to each of the three issues raised in this opinion, but they asked for reversal of Benn's conviction rather than for a remand. Counsel did not couch their argument explicitly in terms of the judge's failure to apply correct legal principles in the exercise of his discretion. The government might plausibly argue that the grounds for reversal relied on in the opinion of the court and in this concurring opinion have not been properly preserved, and that the government has not had the opportunity to brief these precise issues. In my judgment, however, the basic points discussed in this concurring opinion are before the court, and the court is effectively granting “lesser included” relief to Benn. Although reasonable people might differ on the point, I conclude that Benn has preserved the underlying claim of abuse of discretion, and that although he has not made the precise arguments on which the remand is based, that is not dispositive. Cf. Yee v. City of Escondido, 503 U.S. 519, 535-36, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992). 2 And, again, at the second trial. 3 If a photograph of the real perpetrator was not in the array, then the witnesses might well have identified the person in the photo spread who most resembled him. 4 See also In re As.H., 851 A.2d 456, 462 (D.C.2004): Where ... the police consider an individual to be a possible perpetrator and a witness makes an initially ambiguous identification, there may develop a process of mutual bolstering which converts initial tentativeness into ultimate certainty. In re Dwayne W., 109 Daily Wash. L. Rptr. 1901, 1906 (Super. Ct. D.C. 1981). “The victim relies on the expertise of the officer and the officer upon the victim's identification.” Id. (quoting [JUDGE] NATHAN SOBEL, EYEWITNESS IDENTIFICATION, LEGAL AND PRACTICAL PROBLEMS 12 (1972 & Supp. 1981)). 5 Dyas v. United States, 376 A.2d 827 (D.C.1977). 6 In Dyas, we identified criteria for the admissibility of expert testimony (1) the subject matter “must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman”; (2) “the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth”; and (3) expert testimony is inadmissible if “the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.” 376 A.2d at 832 (quoting MCCORMICK ON EVIDENCE, § 13, at 29-31 (E. Cleary 2d ed. 1972)). 7 It is true that the opinions which the trial judge questioned did not deal with the admissibility vel non of expert testimony. However, a major factor in determining whether such testimony should be admitted is the strength of the government's case, for the less corroboration that there is for an identification by a stranger, the stronger the argument is for receiving expert evidence. See, e.g., Hager v. United States, 856 A.2d 1143, 1149 (D.C.2004). The authorities which were the subject of the judge's skepticism were thus indisputably relevant to the issue, before us.

990 A.2d 970 District of Columbia Court of Appeals.

John JONES, Appellant, v. UNITED STATES, Appellee.

No. 07-CF-783. | Argued April 29, 2008. | Decided March 18, 2010.

Synopsis Background: Defendant was convicted in the Superior Court, Ann O'Regan Keary, J., of misdemeanor sexual abuse and simple assault, and he appealed.

Holdings: The Court of Appeals, Glickman, J., held that:

[1] testimony of expert witness on the sexual victimization of children was admissible;

[2] witness was qualified as expert to testify about sexual victimization of children; and

[3] defendant did not shown plain error in the failure of trial court to exclude expert's testimony about sexual victimization of children under Frye.

Affirmed.

Attorneys and Law Firms

*972 Oliver Dean Sanderford, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the briefs, for appellant.

Elizabeth H. Danello, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney at the time, Roy W. McLeese III, and Cynthia G. Wright, Assistant United States Attorneys, were on the brief, for appellee.

Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and ROSS, Associate Judge, Superior Court of the District of Columbia. *

Opinion

GLICKMAN, Associate Judge:

Appellant Jones stands convicted of misdemeanor sexual abuse and simple assault. The victims of these offenses were two students at the high school where Jones was a counselor and teacher. Jones claims the trial judge committed reversible error in admitting expert testimony explaining the methods of child sex offenders and the reactions of their immature victims. We disagree and affirm Jones's convictions.

In August of 2003, the grand jury returned a 25-count indictment against appellant, charging him with sex offenses against L.B., K.H., and R.D., three female students at Ballou Senior High School, where appellant had worked as an attendance counselor and stage-crew coordinator. At appellant's first trial, held in early 2004, the court dismissed two of the counts on the government's motion and the jury found appellant not guilty of eight other counts. The jury could not reach a verdict on the remaining fifteen counts. Appellant was retried on those counts in May and June of 2004.

Four of the surviving counts charged appellant with felony offenses against L.B. when she was fifteen years old. 1 Seven more counts charged him with misdemeanor sexual abuse of L.B. after she had turned sixteen, the age of consent. L.B. testified at trial that appellant befriended her after she met him in the attendance office at Ballou in her sophomore year. A troubled adolescent with a traumatic family background, L.B. found she could confide *973 in appellant, whom she described as “nice.” Appellant listened to L.B. and assured her he would “be there” if she needed him. He bought her new shoes and called himself her “godfather.” He told L.B. she was pretty. After a while, L.B. claimed, he began telling her he wanted to have sex with her.

According to L.B., their first sexual encounter occurred in the spring of her sophomore year, when she was fifteen years old. Appellant asked her to come with him to the school auditorium to help him set up some tables on the stage. Once they were there, L.B. claimed, appellant closed the curtain, turned off the lights, grabbed her, and forced her to submit to sexual intercourse against her will. A few months later, after L.B. turned sixteen, appellant began having sex with her on a regular, almost weekly basis. They met for that purpose either at Ballou or in appellant's apartment. L.B. did not resist appellant's advances or report him, she testified, “because at that time I didn't think I had a choice.” She feared appellant would access the school computer system to change her grades (an ability he told her he possessed) and she “would fail.” In February 2003, however, L.B. contracted genital warts, a sexually transmitted condition. Only then, to a gynecologist who examined her, did L.B. disclose appellant's abuse. At that point the police were notified.

The remaining counts involve appellant's alleged offenses against R.D. (simple assault and enticing a child) and K.H. (assault with intent to commit first-degree sexual abuse and simple assault). R.D. testified that appellant frequently made sexually suggestive comments to her when she was in his stage-crew class in her sophomore year. One morning, she testified, appellant approached her before class, made a sexual remark, and kissed her without warning on her lips. (This was the basis for the assault charge.) On another occasion, R.D. claimed, she was in the attendance office and appellant locked the door, turned off the lights, and proposed taking her to a hotel “and other stuff.” (This was the basis for the enticing count.) The charges involving K.H. related to an incident in her junior year in which appellant allegedly put his hand under her skirt and kissed her on the neck while she was trying to use the telephone in the school security office. K.H. reported the assault later that day. She testified that she was reluctant to do so because appellant had told her he could change students' grades and she was afraid he would change hers.

The government called two significant witnesses at appellant's second trial whom it had not presented at his first trial. One of those witnesses was S.B., who testified that appellant raped her in 1992 when she was living in foster care with the grandmother of his son. 2 This testimony was admitted, with a limiting instruction, to show that appellant had a particular preference for sexual relations with teenage girls. 3 The other new witness was Kenneth Lanning, a former special agent in the Behavioral Science Unit of the Federal Bureau of Investigation. Qualified by the court as an expert on the sexual victimization of children, Lanning testified about the methods employed by preferential child molesters and the behavior of their victims. Lanning professed no knowledge about the facts of appellant's case and *974 expressed no opinion on appellant's guilt or the credibility of his accusers. We shall describe Lanning's testimony in greater detail below.

Appellant's defense was that the three teenaged complainants had fabricated their allegations against him. The defense focused in large part on their motives to lie about him, their delay in reporting his abuse, and the inconsistencies in their accounts. Appellant also presented evidence that he and L.B. had enjoyed a close, friendly relationship. Among other things, appellant's wife testified that L.B. regularly visited them at their home. On cross-examination L.B. acknowledged that she continued to call appellant after he left Ballou, and that she sent him a school picture on which she had written “to my godfather and godmother” and “love you.” L.B. also admitted that her grades were poor and that appellant had never threatened explicitly to change them.

At the close of the government's case, the judge granted appellant's motion for judgment of acquittal on the charge of second- degree child sexual abuse (involving L.B.). The jury acquitted appellant of the remaining felony charges and of the charge of simple assault relating to K.H. It convicted appellant on the seven counts of misdemeanor sexual abuse of L.B. and on the count of simple assault against R.D. Subsequently, with the government's agreement, the judge vacated appellant's convictions on three of the misdemeanor sexual abuse counts on merger grounds. 4 Thus, at the end of the day, appellant stood convicted of four counts of misdemeanor sexual abuse and one count of simple assault.

II.

The government notified appellant two months before the start of his second trial of its intention to call Kenneth Lanning as an expert witness on the sexual victimization of children. The government proffered Lanning as an “education” witness who would describe in general terms how “preferential” child molesters “groom” and manipulate their immature victims, how those victims become compliant and cooperate with their abusers, and how they delay reporting their abuse and provide inconsistent accounts because they feel shame, embarrassment and guilt on account of their acquiescence. In a motion filed in open court on the day of trial, and in extended argument on that motion, appellant objected to Lanning's testimony on several grounds. Appellant argued that (1) Lanning's proffered testimony was not beyond the ken of the average juror; (2) Lanning was not qualified to testify about victim behavior; (3) his method of classifying sex offenders was not generally accepted; and (4) his testimony about offenders would be substantially more prejudicial than probative. Appellant also expressed concern that the jury might take Lanning's testimony about compliant victims to mean that consent would not be a defense even if the alleged victim was over the age of sixteen. The judge overruled appellant's objections and permitted the government to call Lanning. 5 To avoid unfair prejudice to appellant, the judge instructed the government to limit Lanning's testimony *975 about characteristic traits of child molesters to the ones appellant allegedly had displayed. Additionally, the judge offered to instruct the jury specially on the issue of consent after Lanning testified.

In his trial testimony, Lanning explained that his qualifications to testify about the sexual victimization of children rested primarily on his two decades of experience in the FBI's Behavioral Science Unit (BSU). According to Lanning, the work of the BSU involved applying the “knowledge of the behavioral sciences ... in a practical way to dealing with fact finding and investigation and prosecution of cases.” Lanning's main focus at the BSU was on sexual offenses against children: he studied the behaviors of both offenders and victims in order to apply what he learned to the investigation and prosecution of child sex offense cases. Although Lanning was not trained as a psychologist or psychiatrist, he had earned a master's degree in administration of justice and had completed the course work for a master's degree in criminal justice. In the latter program, he testified, he took “a lot” of behavioral science classes, including classes on deviant sexual behavior and sex crimes.

Lanning's research in his years at the BSU chiefly consisted of studying thousands of case files that had been compiled for law enforcement purposes. He estimated that 400 to 500 of the files he had studied involved teenaged victims, approximately half of them adolescent girls who had been victimized by adult males. Although Lanning had not interviewed these victims personally, he worked directly with the investigators who had done so. Lanning testified that he had published the fruits of his research on child sexual victimization in “numerous articles and chapters,” such as a “widely disseminated” monograph entitled “Child Molesters, a Behavioral Analysis for Law Enforcement,” and a book chapter entitled “Sexual Exploitation of Children.” His writings had appeared in publications of the FBI and the National Center for Exploited and Missing Children, among other organizations. All his published writings, Lanning stated, had passed through peer review of some kind. 6

Lanning also had consulted on thousands of child sex cases and participated in hundreds of training courses all over the world on the sexual victimization of children. 7 In the latter connection, Lanning said, he had worked with professionals in the areas of social work, mental health and medicine, as well as with law enforcement personnel and victim advocates. In addition, Lanning had testified as an expert witness on child sex abuse in approximately fifty court proceedings throughout the United States and on seven occasions before Congress.

Lanning's opinion testimony in appellant's trial focused on “preferential” child molesters and their “compliant victims.” As to the former, Lanning explained that while child molesters constitute “a diverse population of individuals” that can be classified in different ways, “over the years” he had developed a “typology” to use for his own purposes and which he had trained others to employ. His typology looked at child molesters “along a continuum from situational to preferential.” Preferential offenders are those who have a clear and persistent sexual preference, “most often *976 for children.” 8 The most successful preferential abusers are typically “nice guys,” often authority figures such as teachers, who employ age-old techniques of seduction, or what Lanning called “grooming.” 9 The key feature of this grooming process is that the abuser identifies and tries to fill a child's needs, for example by listening sympathetically to the child, complementing her on her looks, giving her hugs, and buying her things she needs.

After having formed a relationship of trust and dependence, the abuser undertakes to manipulate the child's feelings and overcome her sexual inhibitions. Contrary to popular belief, Lanning explained, child molesters usually do not force themselves on their victims; in fact, only about 10 to 15 per cent of child sex offenses involve “extreme violence.” The preferential abuser's goal is to bond with the child in order to control her psychologically. Children from dysfunctional homes, especially teenagers, are most susceptible to being groomed in this way, Lanning said. He added, however, that preferential child molesters “may” employ such unsavory tactics as exposing children to pornography, supplying them with drugs and alcohol, blackmailing them, and coercing their silence by threats of suicide. As one example of the use of blackmail or threats he had observed in cases involving child molesters who were teachers, Lanning mentioned “not giving [students] a proper grade, giving them the wrong grade.”

The grooming process results in what Lanning called “compliant victims”-children who cooperate in their victimization. Their non-resistance may seem to indicate consent, Lanning stated; indeed, the children may return to their abusers and even enjoy the sexual activity. However, Lanning opined, compliant victims “suffer a lifetime of shame, embarrassment and guilt because their victimization does not fit society's understanding” that children do not willingly acquiesce in abuse. According to Lanning, those feelings help explain why victimized children fail to disclose or delay disclosure of their abuse, and why their disclosures often contain “incomplete,” “inaccurate,” “distorted,” or “contradictory” information. (On cross-examination, Lanning conceded that some children may give contradictory accounts of abuse simply because they are being untruthful.)

Although appellant did not raise consent as his defense at trial, he repeated his concern that the jury could misunderstand Lanning's testimony about compliant victims to mean that consent by an individual over sixteen years of age would not be a defense to a sex abuse charge. To prevent that misunderstanding, the judge instructed the jury immediately after Lanning was excused on the defense of consent in the District of Columbia. The judge cautioned the jury that Lanning did not use the word “consent” in its legal meaning and that his testimony did not furnish “any legal guidance” on the issue of appellant's guilt or innocence. Appellant does not challenge the instruction's adequacy.

III.

[1] The admissibility of expert testimony in the Superior Court of the District of Columbia is governed by the three-part test we adopted in Dyas v. United States:

*977 (1) the subject matter must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman; (2) the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth; and (3) expert testimony is inadmissible if the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert. 10

The third criterion incorporates the so-called Frye test, under which scientific testimony is admissible only if the theory or methodology on which it is based has gained general acceptance in the relevant scientific community. 11 Expert testimony admissible under the criteria of Dyas and Frye is still subject to exclusion if the danger of unfair prejudice substantially outweighs its probative value. 12

[2] “The trial judge has wide latitude in the admission or exclusion of expert testimony, and his [or her] decision with respect thereto should be sustained unless it is manifestly erroneous.” 13 Thus, we have said, “our scope of review on this issue is narrow.” 14 Ordinarily, where the claim of error was preserved by timely and proper assertion in the trial court, we review the judge's ruling for abuse of discretion. However, with respect to the Frye issue of whether a new scientific theory or methodology has gained general acceptance, our review is de novo. 15 Claims raised for the first time on appeal are subject to review only for plain error. 16

Appellant challenges the admission of Lanning's testimony on several grounds, not all of which he raised in the trial court. Invoking each of the three Dyas criteria, appellant contends that Lanning's testimony was not beyond the ken of the average juror; that Lanning was unqualified to offer an expert opinion regarding the behavior of child sex abuse victims and the manipulative techniques used to induce that behavior; and that the methodology underpinning Lanning's opinions about victim psychology was not generally accepted by the scientific community. Appellant also argues that Lanning's testimony was unduly prejudicial. We address each of these contentions in turn.

*978 A. The Need for Expert Testimony [3] Appellant claims the trial judge erred in concluding that Lanning's testimony about the “grooming” techniques employed by child molesters satisfied the first Dyas criterion, i.e., that it was “beyond the ken” of the average juror. Citing the attention paid by the media in recent years to the subject of acquaintance abuse, appellant argues “there is no reason to believe that the average juror is unaware that child molesters often gain access to their victims through seduction rather than forcible abduction.” 17 Appellant preserved this claim in the trial court.

[4] [5] It is common, however, for experts to testify in criminal cases about the modus operandi of certain types of criminal offenders. 18 Courts generally permit such expert testimony because “jurors cannot be presumed to have knowledge of these matters,” 19 and it therefore may help the jury understand and evaluate the evidence. Modus operandi testimony may be helpful, and hence admissible under Dyas's first criterion, even though it may be familiar to “the average reader of the daily press.” 20 Under these principles, the D.C. Circuit, among other courts, has upheld the admission of Lanning's testimony on the grooming techniques of child molesters precisely because “the average layperson lacks knowledge regarding the manner in which preferential sex offenders operate.” 21 In the words of the Seventh Circuit, Lanning's modus operandi testimony “was critical in dispelling from the jurors' minds the widely held stereotype of a child molester as ‘a dirty old man in a wrinkled raincoat’ who snatches children off the street as they wait for the school bus.” 22 While the continuing vitality of such stereotypes may be debatable, we cannot conclude that the trial judge in this case abused her discretion in ruling that Lanning's “grooming” testimony “was beyond the ken of a lay trier of fact and would be helpful to the jurors in their consideration of the evidence.” 23 The testimony helped to explain not only how a child molester could accomplish his crimes without violence, but also why a child victim would acquiesce and be reluctant to turn against her abuser.

B. Lanning's Qualifications [6] To be qualified as an expert, a witness “must have sufficient skill, knowledge, or experience” in the relevant field so that his testimony “will probably aid the *979 trier in his search for truth.” 24 Appellant claims that Lanning's testimony about

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Jones v. U.S., 990 A.2d 970 (2010) 254 Ed. Law Rep. 1000 compliant child victims was “an exercise in child psychology” for which Lanning lacked the requisite qualifications because he was not trained as a psychologist or psychiatrist and had not interviewed victims of child sex abuse. 25 The trial judge, concluding that Lanning was qualified on the basis of his extensive experience in the field of child sexual victimization, ruled that appellant's objections went to the weight to be given Lanning's testimony but not its admissibility.

[7] [8] [9] [10] We are not persuaded that the judge's acceptance of Lanning's qualifications was manifestly erroneous. Expertise may be predicated on experience rather than academic training. “Scholarship is not a prerequisite for eligibility to testify as an expert witness; the relevant knowledge may be derived from professional experience, including, in particular, experience as a police officer.” 26 To be sure, “experience” is a slippery concept. There has to be a fit between the witness's experiential qualifications and the testimony to be offered; “[a] witness may be qualified as an expert on certain matters and not others.” 27 Accordingly, where a proffered expert's qualifications are based primarily on experience, the witness should be able to “explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts,” so that the judge may evaluate whether the witness truly is qualified to render an opinion on the matter in question. 28

In this case, while Lanning apparently lacked formal academic training in psychology, 29 he spent over twenty years in the Behavioral Science Unit studying the sexual victimization of children. He had shared his conclusions with, and undoubtedly had received feedback from, other professionals working in the same or related areas, including mental health specialists. There is no question Lanning was qualified to describe the behavior patterns he had observed in hundreds of cases, and his “psychological” testimony was grounded in those observations and correspondingly modest in scope. In advancing the general reasons child victims cooperated in *980 their abuse and were reluctant to report it, Lanning did not purport to offer a psychiatric diagnosis or profile or a sophisticated description of a child victim's mental processes. The judge was presented with no evidence that Lanning's methods or his opinions about victim psychology were controversial or suspect. And as the judge noted, Lanning had been qualified to testify as an expert on child molesters and their victims in a large number of other jurisdictions. 30 Given Lanning's experience, his extensive study and the limited nature of his “psychological” testimony, the judge did not abuse her discretion in finding that he had acquired sufficient knowledge to be qualified to address the subjects he did.

C. Lanning's Methodology [11] [12] [13] Appellant argues, and the government concedes, that Lanning's testimony concerning the psychological reasons for children's reactions to sexual abuse was scientific in nature and hence was subject to Frye. 31 Under Frye, the methodology underpinning scientific testimony must enjoy general acceptance among practitioners in the relevant field of scientific inquiry, and our review of that question is de novo. Appellant cogently argues, and the government all but concedes, that the methodology Lanning used to reach his conclusions about victim psychology was not shown to pass muster under the “general acceptance” test. An expert's “experience” is not a substitute for the scientific method, which requires techniques more rigorous than just the accumulation of observations and intuitively plausible deductions. At a minimum, appellant asserts, the scientific study of behavior requires critical inquiry guided by theory and hypothesis, systematic and controlled observation and collection of data, careful documentation, and structured analysis. 32 There is no evidence Lanning employed scientific methods in deriving his opinions about victim psychology from the law enforcement case files that happened to come to his attention. Although Lanning unfortunately was not pressed to clarify exactly how he arrived at those opinions, he conceded that his methods were “informal” and undocumented.

[14] But as the government argues, appellant did not object to Lanning's testimony about victim psychology on this ground in the trial court. While appellant did raise a Frye objection, he limited it to Lanning's testimony about offenders. Specifically, he argued only that Lanning's *981 offender typology was not generally accepted (an argument not pursued on appeal). 33 Although appellant disputed Lanning's qualifications to testify about victim psychology, he did not contend that the methodology underlying Lanning's testimony on that subject lacked general acceptance. 34 Consequently, whether Lanning's research into

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Jones v. U.S., 990 A.2d 970 (2010) 254 Ed. Law Rep. 1000 victim psychology met the requirements of scientific methodology was never explored in the trial court and no record on the issue adequate for appellate review was made. “If, under these circumstances, we may consider the contention at all, our review must be for plain error.” 35

[15] “Under the established four-part test for plain error, an appellant must demonstrate not merely that there was an error, but also that the error was ‘clear’ or ‘obvious'-‘so egregious and obvious as to make the trial judge and prosecutor derelict in permitting it, despite the defendant's failure to object.” 36 If there was error in the admission of any portion of Lanning's testimony, it was not “clear” or “obvious” error. As we have said, the trial judge was presented with no evidence that Lanning's methodology was scientifically unorthodox or controversial. We would not expect the judge to have recognized on her own that Lanning might not have employed the scientific method of inquiry: “under Frye, judges seemingly do not need to have any facility with scientific methods to make the admissibility decision.” 37 Accordingly, we conclude that appellant has *982 not shown plain error in the failure to exclude Lanning's testimony under Frye. 38

D. Danger of Unfair Prejudice Evidence that is otherwise relevant and admissible may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. 39 Appellant's final claim is that parts of Lanning's testimony about child molesters were “irrelevant and inflammatory.” 40 Appellant specifically complains of Lanning's references to such repugnant tactics as blackmail, threats and offering children pornography, drugs and alcohol. Appellant argues there was no evidence he had engaged in any such behavior, and that Lanning's recitation of these “lurid and irrelevant details” 41 served only to link him unfairly to reprehensible conduct with which he was not charged.

[16] Appellant overstates his case. Lanning's testimony was not irrelevant merely because some common offender conduct he had observed had not been ascribed to appellant. In point of fact, there was evidence from which the jury could infer that appellant did blackmail L.B., via an implicit threat to alter her grades. And even if some of Lanning's comments contravened the judge's prior admonition to confine his description of offender behavior to conduct of which appellant was accused, we are not persuaded that appellant was prejudiced. Lanning admitted knowing nothing about the facts of appellant's case and never opined that appellant fit any sort of profile of a child molester. Indeed, Lanning did not purport to provide such a profile at all; he made it clear that not all child molesters behaved in the same way or employed the unsavory tactics he described. We see no reason to believe the jury attributed any reprehensible conduct to appellant for which there was no evidence. If anything, Lanning's testimony about such conduct provided fodder for the defense to distinguish appellant from the offenders Lanning had studied.

IV. Conclusion

We conclude that the trial judge did not commit reversible error by admitting Lanning's testimony. Appellant's convictions are hereby affirmed.

Parallel Citations

254 Ed. Law Rep. 1000

Footnotes * Sitting by designation pursuant to D.C.Code § 11-707(a) (2001). 1 These counts charged appellant with first-degree sexual abuse, first-degree child sexual abuse, second-degree child sexual abuse, and enticing a child.

2 S.B. reported the incident, and appellant was prosecuted. His trial ended in a mistrial. After consulting with S.B., the government elected not to retry the case. 3 See (Tyrone W.) Johnson v. United States, 610 A.2d 729 (D.C.1992). Appellant does not claim error in the admission of S.B.'s testimony. 4 See Cullen v. United States, 886 A.2d 870 (D.C.2005). 5 Because the judge had the advantage of reading transcripts of Lanning's testimony in other cases, she found it unnecessary to hold a pretrial evidentiary hearing on appellant's motion. However, the judge permitted appellant to conduct a voir dire examination of Lanning during his testimony at trial before finally accepting his qualifications as an expert in the sexual victimization of children. 6 It appears, however, that Lanning did not mean the kind of rigorous peer review associated with publication in refereed scientific journals. 7 After he retired from the FBI, Lanning continued working as a private consultant on cases involving sex crimes against children. 8 By contrast, situational offenders do not have such a clear preference but take sexual advantage of children in an “opportunistic” way. 9 In other words, Lanning explained, “[t]hese individuals seduce children essentially the same way that men and women have been seducing each other since the dawn of mankind.” 10 376 A.2d 827, 832 (D.C.1977) (internal emphasis, quotation marks and citation omitted). 11 See Frye v. United States, 54 App. D.C. 46, 47, 293 F. 1013, 1014 (1923) (“[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”); United States v. Porter, 618 A.2d 629, 633 (D.C.1992) ( “[U]nder Frye, the proponent of a new technology must demonstrate by a preponderance of the evidence that this technology has been generally accepted in the relevant scientific community.”); Ibn-Tamas v. United States, 407 A.2d 626, 638 (D.C.1979) (“[S]atisfaction of the third Dyas criterion begins-and ends-with a determination of whether there is general acceptance of a particular scientific methodology, not an acceptance, beyond that, of particular study results based on that methodology.”). 12 See Nixon v. United States, 728 A.2d 582, 594 (D.C.1999). 13 In re Melton, 597 A.2d 892, 897 (D.C.1991) (en banc) (quoting Coates v. United States, 558 A.2d 1148, 1152 (D.C.1989)). 14 Ibn-Tamas, 407 A.2d at 632 (internal quotation marks and citations omitted). 15 See Jones v. United States, 548 A.2d 35, 40 (D.C.1988); see also Roberts v. United States, 916 A.2d 922, 929 (D.C.2007). 16 See, e.g., Nixon, 728 A.2d at 587. 17 Brief of Appellant at 35. Appellant does not raise a similar challenge to Lanning's testimony about the behavior of child victims. This Court previously has recognized that the behavioral characteristics and psychological dynamics of child molestation victims are beyond the ken of the average juror. See Mindombe v. United States, 795 A.2d 39, 42 (D.C.2002); Oliver v. United States, 711 A.2d 70, 73 (D.C.1998). 18 See, e.g., Hinnant v. United States, 520 A.2d 292, 293 (D.C.1987) (“Because the use, sale, and packaging of heroin on the streets are not matters within the ken of the average lay person, expert testimony on the modus operandi of drug traffickers may be admitted if relevant.”). 19 United States v. Long, 356 U.S.App. D.C. 117, 129, 328 F.3d 655, 667 (2003). 20 Irick v. United States, 565 A.2d 26, 31 (D.C.1989) (upholding admission of expert testimony regarding the association between drugs and firearms); see also Nixon, 728 A.2d at 591. 21 Long, 356 U.S.App. D.C. at 129, 328 F.3d at 667. 22 United States v. Romero, 189 F.3d 576, 584 (7th Cir.1999). 23 Nixon, 728 A.2d at 591. 24 Dyas v. United States, 376 A.2d 827, 832 (D.C.1977) (internal emphasis, quotation marks and citation omitted). It should go without saying, but perhaps it does bear repeating, that qualifications are a necessary but not a sufficient condition for the admission of proffered expert testimony. The other requirements of Dyas must be satisfied. In particular, as discussed in the next section of this opinion, under Frye even a qualified scientific expert's opinion testimony should be excluded if it is not based on a methodology that has gained general acceptance in the pertinent field. 25 Brief for Appellant at 23. 26 Karamychev v. District of Columbia, 772 A.2d 806, 812 (D.C.2001). 27 United States v. Roldan-Zapata, 916 F.2d 795, 805 (2d Cir.1990). Relatedly, that an expert has impressive credentials and has been permitted to testify in other cases does not answer the question of the expert's qualifications to provide the particular testimony being offered in the case at hand. See, e.g., United States v. Nacchio, 555 F.3d 1234, 1258 (10th Cir.2009). 28 Fed.R.Evid. 702 advisory committee's note (2000).

29 Appellant may be underestimating Lanning's credentials. Unfortunately, Lanning was not asked about his familiarity with the psychological literature on child sexual abuse, the specialized training he had received as a member of the Behavioral Science Unit, or the mental health experts (if any) with whom he might have consulted or studied. However, in this as in other respects, we take the record as we find it. 30 See, e.g., United States v. Hayward, 359 F.3d 631, 635-37 (3d Cir.2004); United States v. Long, 356 U.S.App. D.C. 117, 127-130, 328 F.3d 655, 665-68 (2003); United States v. Romero, 189 F.3d 576, 582-87 (7th Cir.1999); State v. Sorabella, 277 Conn. 155, 891 A.2d 897, 931-35 (2006). As the judge recognized, these were jurisdictions in which admissibility of expert testimony is governed by Federal Rule of Evidence 702 (or a comparable state rule) as construed by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), rather than by the standards set forth in Dyas. For present purposes, however, the significant difference is that Daubert deemphasized the general acceptance test of Frye and placed the responsibility on the judge to evaluate the scientific validity of the basis for expert testimony. It remains true under Daubert and Rule 702 that experts may be qualified to testify by virtue of their experience as opposed to their training, and that the decision is committed to the trial judge's broad discretion. 31 See, e.g., Ibn-Tamas v. United States, 407 A.2d 626, 637-39 (D.C.1979) (applying Frye to psychological testimony explaining the behavior of “battered women”). 32 See generally 1 DAVID L. FAIGMAN ET AL., MODERN SCIENTIFIC EVIDENCE: THE LAW AND SCIENCE OF EXPERT TESTIMONY §§ 5:1-5:5 (2009-2010 ed.). 33 We are inclined to agree with the government that Lanning's mere description of offenders and their behavior (modus operandi ) was not scientific testimony subject to Frye's requirements. “[W]here an expert testifies to ‘general behavioral characteristics' based upon the expert's ‘professional experience’ and does not rely on ‘novel scientific technique’ or employ ‘any special techniques or models,’ Frye ... is not implicated.” United States v. Bighead, 128 F.3d 1329, 1330 (9th Cir.1997) (upholding admission of testimony about delayed disclosure and other typical characteristics of children who reported having been abused sexually). 34 Appellant argues that he preserved his current Frye challenge because, in critiquing Lanning's qualifications (not his methodology), he made the assertion in passing that “Lanning's analysis cannot be construed as scientific in any regard.” In context, however, this assertion was directed at Lanning's typology of offenders. In our view, it was not sufficient to alert the trial judge that appellant claimed the methodology underlying Lanning's testimony about victim psychology was not generally accepted in the relevant scientific community. Appellant argues that “once a claim is properly presented to the trial court, a party can make any argument in the appellate court in support of that claim; parties are not limited to the precise arguments made below.” Randolph v. United States, 882 A.2d 210, 217-18 (D.C.2005) (quoting Yee v. Escondido, 503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992) (internal quotation marks, capitalization, ellipses and brackets omitted)). But it is one thing to make new legal arguments on appeal to support a claim made below. It is another thing to advance an entirely new factual claim. In our estimation, appellant's current Frye challenge falls in the latter category. 35 Nixon v. United States, 728 A.2d 582, 589 (D.C.1999). 36 Comford v. United States, 947 A.2d 1181, 1189 (D.C.2008) (footnote omitted). In addition, the appellant must demonstrate that the error affected his substantial rights and the fairness, integrity, or public reputation of the proceedings. Id. at 1189-90. Given our conclusion that any error was not clear or obvious, we need not consider whether these additional requirements of the test for plain error are met. 37 FAIGMAN ET AL., supra note 32, § 1:7 at 21. The trial judge's role has undergone a marked change in this regard under Daubert. “Judges and lawyers, long insulated from the scientific revolution, are now obligated [by Federal Rule of Evidence 702] to become familiar with the methods and culture of science.” Id. 38 We caution that we do not retreat in any way from this Court's insistence on faithful adherence to the requirements of Dyas and Frye. Trial counsel and judges have an obligation to be familiar with those requirements. As we have said, “because expert or scientific testimony possesses an aura of special reliability and trustworthiness, the proffer of such testimony must be carefully scrutinized.” Ibn-Tamas v. United States, 407 A.2d 626, 632 (D.C.1979) (internal quotation marks and citation omitted). “[The trial] court must take no shortcuts; it must exercise its discretion with reference to all the necessary criteria.” Id. at 635 (citing (James W.) Johnson v. United States, 398 A.2d 354, 363-67 (D.C.1979)). Where Frye applies, the proponent of the evidence must be able to demonstrate by a preponderance of the evidence that the specific opinion testimony to be offered-however plausible or commonsensical it may seem-is based on theory, technique, method or technology that actually does enjoy general acceptance among scientists (not other courts) in the relevant field of inquiry. See, e.g., Roberts v. United States, 916 A.2d 922, 929 (D.C.2007); United States v. Porter, 618 A.2d 629, 633-34 (D.C.1992). By the same token, the party opposing admission of expert testimony should be prepared to challenge it with specificity on every applicable ground. 39 (William A.) Johnson v. United States, 683 A.2d 1087, 1099 (D.C.1996) (en banc). 40 Brief for Appellant at 34.

41 Id.

995 A.2d 174 District of Columbia Court of Appeals.

Bryan K. WILSON, Appellant, v. UNITED STATES, Appellee.

No. 07–CF–1097. | Argued March 11, 2010. | Decided May 6, 2010.

Synopsis Background: Defendant was convicted in the Superior Court, Erik P. Christian, J., of first-degree premeditated murder while armed and related weapons charges. Defendant appealed.

Holdings: The Court of Appeals, Thompson, J., held that:

[1] trial court did not abuse its discretion and violate Sixth Amendment by disqualifying attorney defendant attempted to add to defense team shortly before trial;

[2] statements made by friend during videotaped conversation, asking or suggesting that defendant killed his wife, were not admitted to prove the truth of the matter asserted, for purposes of the Confrontation Clause;

[3] statements made by friend during videotaped conversation, asserting that he had supplied a gun to defendant a week before wife's death, were adoptive admissions;

[4] any error, in admitting testimony of detective that no one in defendant's neighborhood saw defendant arrive home when defendant claimed, was harmless; and

[5] evidence was sufficient to support conviction of defendant for the first-degree premeditated murder of his wife.

Affirmed.

Attorneys and Law Firms

*177 Thomas D. Engle, appointed by the court, with whom Sharon L. Burka was on the brief, for appellant.

Katherine M. Kelly, Assistant United States Attorney, with whom Channing D. Phillips, Acting United States Attorney at the time the brief was filed, and Roy W. McLeese III, Chrisellen R. Kolb and Matthew P. Cohen, Assistant United States Attorneys, were on the brief, for appellee.

Before REID and THOMPSON, Associate Judges, and WAGNER, Senior Judge.

Opinion

THOMPSON, Associate Judge:

Appellant Bryan K. Wilson was convicted of first-degree premeditated murder while armed and of several weapons charges in connection with the death of his wife Inga Wilson. 1 In this appeal, he argues that (1) the trial court's ruling disqualifying an

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Wilson v. U.S., 995 A.2d 174 (2010) attorney that he sought to add to his defense team violated his Sixth Amendment right to counsel; (2) the admission of a videotape violated his rights under the Confrontation Clause of the Sixth Amendment; (3) the court erred by allowing the government to present hearsay testimony; (4) there was insufficient evidence to prove beyond a reasonable doubt that appellant was guilty of murdering his wife; and (5) the claimed errors in combination affected the verdicts, warranting reversal. Unpersuaded by appellant's arguments, we affirm.

The government presented evidence that, on the afternoon of December 13, *178 2003, Inga Wilson was found dead in the passenger seat of her Ford Expedition, which was parked in the 3000 block of Adams Street, N.E. She had been shot four times in the head and died sometime around 12:00 a.m. on December 13, 2003. After police arrived on the scene, they discovered that both the vehicle and the decedent had been reported missing. Police contacted appellant to inform him of his wife's death and later that day interviewed him to gather information regarding the decedent's death.

Detective George Blackwell testified that appellant told him that on the evening of December 12, 2003, he and his wife went to dinner at an Olive Garden restaurant and then to a movie in Waldorf, Maryland. According to appellant's account, when they arrived at their home in Upper Marlboro, Maryland just after 11:00 p.m., his wife said she wanted something sweet to eat. Appellant remained at home while his wife went to a Shell gas station about a quarter-mile away to purchase candy. He fell asleep on the couch and when he woke up, his wife had not returned. When she did not answer her cell phone, appellant got into his car and drove by the gas station and around the neighborhood, searching for her. Appellant told police that he could not recall the name of the movie he and his wife saw and that he was not in the District of Columbia that evening.

On December 31, 2003, appellant was interviewed by FBI Agent Gary Gerszewski. During that interview, appellant told Agent Gerszewski that after dinner at the Olive Garden, he and his wife had seen the 9:30 p.m. showing of the movie “Bad Santa” in Waldorf. Appellant repeated the account he had given Detective Blackwell about the couple returning home around 11:00 p.m.; Inga Wilson going to the Shell station to purchase a sweet snack; appellant falling asleep, waking to discover that his wife was not home, and placing a call to her (which he said went directly to her voice mail); and appellant going out to search for her in the neighborhood around his home and the adjacent neighborhood. In addition, he told Agent Gerszewski that while searching for his wife, he saw a woman in the parking lot of the Shell station changing her car tire and he offered assistance. After he changed the tire, the woman gave him a ride to his house, where he retrieved money, which he used to put gas in the woman's car after they drove back to the Shell station and to give her $100 to pay for the replacement tire. Thereafter, appellant returned home, called his mother, continued the search for his wife, and, at around 3:30 or 3:40 a.m., called 911 to report his wife missing.

The government also presented testimony by Renee Benjamin, appellant's former co-worker, with whom he began a romantic relationship in June 2003. Benjamin testified that appellant told her that he was not happy in his marriage and that he was planning to leave his wife. On December 5, 2003, Benjamin received a phone call from appellant stating that his wife and two of his children had been in a car accident. Later that afternoon, appellant called Benjamin again and said that the children were doing well, but that his wife had internal bleeding. On December 7 or December 8, 2003, Benjamin received another call from appellant, who said that his wife had taken a turn for the worse and the family had to decide whether to remove her life support. 2 Appellant informed Benjamin on Friday, December 12, *179 2003, that he and his in-laws were going to remove his wife's life support that evening. Sometime after 12:00 a.m. on December 13, 2003, Benjamin received another phone call from appellant, who asked Benjamin to come and pick him up in the District because he had lent his car to someone. Benjamin told him that she could not do so. The next morning, appellant called Benjamin to inform her that he had paid a woman $100 to drive him home from the District.

FBI Agent Brad Garrett testified that during the investigation of decedent's death, one of appellant's friends, Tracy Thompson, told investigators that he had given appellant a gun. Agent Garrett further testified that Thompson offered to allow agents to place video and audio recording equipment in his car and to engage appellant in a conversation that investigators could record.

During a recorded conversation that took place on January 6, 2005, appellant denied killing his wife but told Thompson that he had thrown the gun that Thompson had given him into the Patuxent River right after the police called him to inform him that his wife's body had been found. As described in more detail infra, the government relied on the videotape to prove that Thompson gave appellant a gun a week before Inga Wilson's murder.

An insurance company officer testified that on December 19, 2003, the company received an application from appellant to purchase a life insurance policy on his wife. The application had been completed on December 7, 2003. The government also presented the testimony of a cell phone expert, who told the jury that he was “one hundred percent” certain that on December 13, 2003 at 12:51 a.m., appellant's cell phone was located nowhere near Upper Marlboro, Maryland, because, in placing an outgoing call, the cell phone had connected with a cell phone tower in the District—specifically, the cell phone tower closest to the location where Inga Wilson's body was found.

The defense offered the testimony of several witnesses. A DNA expert testified that DNA from an unknown male was found on the underside of Inga Wilson's fingernails. The expert acknowledged that the analysis did not reveal how long the DNA had been there or how it got there, but testified that appellant and his two sons were excluded as the source of the DNA. Bobby Segears and his son Brandon testified that at approximately 12:45 or 1:00 a.m. on December 13, 2003, they were walking home from a bus stop and saw a Ford Expedition parked on the 3000 block of Adams Street. Bobby testified that he saw a man and a woman inside the car talking. Both Bobby and Brandon testified that appellant was not the man they saw inside the car. On cross-examination, both said that it was difficult to see inside the vehicle because its interior lights were off and its windows were tinted.

After the jury returned its guilty verdicts, the trial court denied appellant's motion for a new trial. This appeal followed.

II.

During the weekend before appellant's trial was set to begin, the prosecutor learned that criminal defense attorney Douglas Evans had joined appellant's defense team. The prosecutor notified one of appellant's other attorneys that Evans had a conflict because Evans had represented Tracy Thompson—appellant's friend who gave him a gun and who consented to having his conversation with appellant recorded—when Thompson testified at the grand jury proceedings that led to appellant's indictment. When Evans appeared in the courtroom on the day trial was to begin, he told the court that he had *180 not remembered meeting with Thompson, but, once his memory was jogged by the prosecutor's comments, he recalled having represented him. Evans urged that this should not disqualify him from representing appellant because he did not remember any details regarding the representation of Thompson, 3 and thus had not and could not share any such details with the other defense lawyers; that one of the other defense lawyers could cross-examine Thompson if he testified at trial; and that any potential conflict therefore would be eliminated. The prosecutor disagreed, arguing that Thompson was a key witness and the conflict was not waivable. In disqualifying Evans from representing appellant, the trial court found that there was a conflict based on Evans's prior representation of Thompson in this case. The court reasoned that there was a conflict because even if Evans was then unable to remember details of his representation of Thompson, he might remember the details later. The court also sought to avoid creating a situation of ineffective assistance of counsel that might arise if Evans were to represent appellant but fail to cross-examine Thompson.

[1] [2] [3] Appellant argues that the court's ruling disqualifying Evans deprived him of retained counsel of his choice and therefore violated his Sixth Amendment right to counsel. 4 We review a trial court's decision to disqualify counsel for abuse of discretion. Pinkney v. United States, 851 A.2d 479, 488 (D.C.2004). The trial court's determination regarding whether a disqualifying conflict exists “presents a mixed question of law and fact.” Veney v. United States, 738 A.2d 1185, 1193 (D.C.1999) (citation and internal quotation marks omitted). We accept the trial court's factual findings unless they lack evidentiary support, and we review legal issues de novo. Id.

[4] [5] [6] [7] The Sixth Amendment right to counsel encompasses a “right of a defendant who does not require appointed counsel to choose who will represent him.” Gonzalez–Lopez, 548 U.S. at 144, 126 S.Ct. 2557 (citing Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988)). 5 However, the presumption in *181 favor of a defendant's counsel of choice can be overcome upon a showing of an actual or potential conflict. Wheat, 486 U.S. at 163, 164, 108 S.Ct. 1692; Pinkney, 851 A.2d at 487. “An actual conflict in successive representation may arise where the subject matter of the previous representation is substantially related to the case being tried, the attorney reveals privileged communications of the former client stemming from the previous representation, or the attorney's loyalties are otherwise divided.” Pinkney, 851 A.2d at 487 (italics in the original) (quoting Veney, 738 A.2d at 1193). Here, Evans's previous representation of Thompson was regarding the same matter as the case being tried, certainly suggesting that a conflict existed. See id. at 487 n. 8 (citing cases where defense counsel had represented a government witness in grand jury testimony as examples involving representations in “substantially related” subject matters); In re Grand Jury Proceedings, 859 F.2d 1021, 1026 (1st Cir.1988) (stating that disqualification is proper where there is a direct link between the clients of an attorney or evidence that one client has information about another client, such as where an immunized government witness has information about the target of a grand jury investigation). Appellant urges, nevertheless, that the trial court erred in disqualifying Evans, because, in light of Evans's not remembering anything about the substance of his representation of Thompson, there was no possibility that Evans would rely on or be influenced by information obtained in the course of that prior representation.

[8] We can find no abuse of discretion in the court's decision to disqualify Evans because Evans's inability to remember even whether he had acquired information from his representation of Thompson made it impossible for the court to assess whether a conflict could arise at trial. The possibility that Evans would remember information during trial, and would be forced to choose between using the information to the advantage of appellant and refraining from using it to appellant's disadvantage was a sufficient basis for the court to conclude that the potential for conflict overcame appellant's presumptive right to retain the counsel of his choice. See Wheat, 486 U.S. at 163, 108 S.Ct. 1692 (“[T]he [trial] court must be allowed substantial latitude in ... cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.”); United States v. Baker, 10 F.3d 1374, 1398–99 (9th Cir.1993) (upholding the trial court's conclusion that a potential conflict disqualified an attorney, because an actual conflict could arise during trial if the attorney remembered any confidential information he had learned from the previous representation), overruled on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir.2000). Moreover, the trial court had an “obligation to ensure that there was no appearance of impropriety.” Fortson v. United States, 979 A.2d 643, 652 (D.C.2009); see also Pinkney, 851 A.2d at 489 (holding that trial court did not abuse its discretion in refusing defendant's waiver of conflict because “the appearance of impropriety was too great under the circumstances presented here”). Further, because the trial court had a duty to inquire into the possible impact on the effectiveness of counsel when the issue of a conflict arose, see Pinkney, 851 A.2d at 486, it was proper for the court to consider the implications for the defense's cross- examination of Thompson if he should testify at appellant's trial. Although appellant is correct that the government “bears a heavy burden in demonstrating that disqualification was justified,” In re Grand Jury Proceedings, 859 F.2d at 1026, we are satisfied *182 that the government met that burden where it pointed out the “direct link between the clients of an attorney,” id., and where the government could not have known whether Evans obtained information from Thompson pertinent to appellant's case and the content of any information that Evans may have learned.

III.

During his conversation with appellant that was recorded via government video and audio surveillance equipment, Thompson repeatedly expressed dismay or anger that appellant had used the gun Thompson gave him before December 12, 2003, to kill Inga Wilson, making both appellant and Thompson targets of the police investigation. Before trial, appellant asked the court to suppress the videotaped conversation, arguing that it was unduly prejudicial, that on the tape Thompson made assertions of fact not otherwise in evidence, and that if Thompson was not called to testify at the trial, admitting the videotape would violate appellant's right to confront witnesses against him. The government argued that most of Thompson's statements were questions and not assertions; and that any assertions he made were being offered to provide context for appellant's own statements, not

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Wilson v. U.S., 995 A.2d 174 (2010) to prove the truth of the matter asserted. 6 The trial court denied appellant's motion and permitted the government to play the entire videotape for the jury.

Renewing his Sixth Amendment Confrontation Clause argument on appeal, appellant emphasizes that (1) many of Thompson's statements on the videotape asserted or implied that appellant killed his wife (statements that appellant argues were especially damaging to the defense since they conveyed to the jury that even appellant's longtime friend was convinced of his guilt), and (2) Thompson's statements on the videotape were the sole evidence that Thompson supplied appellant with a gun just one week before the murder, evidence about timing that strengthened the government's case.

[9] [10] Crawford v. Washington established that the Confrontation Clause bars the admission of testimonial hearsay when the declarant is not present at trial for cross-examination, unless the declarant is unavailable and was subject to prior cross examination. 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). “[A] crucial aspect of Crawford is that it only covers hearsay, i.e., out-of-court statements offered in evidence to prove the truth of the matter asserted.” United States v. Tolliver, 454 F.3d 660, 666 (7th Cir.2006) (citation and internal quotation marks omitted); Coleman v. United States, 948 A.2d 534, 545 (D.C.2008) (“[I]t is only testimonial hearsay statements that are subject to the Confrontation Clause”). Thus, the Confrontation Clause does not bar the admission of out-of-court statements admitted for a purpose other than to establish the truth of the matter asserted, such as to provide a context for a defendant's own statements or admissions. See Tolliver, 454 F.3d at 666 (explaining that where a declarant's statements “put [defendant's] admissions on the tapes into context, making the admissions intelligible for the jury[,] ... the admission of such context evidence does not offend the Confrontation Clause because the declarant is not a witness *183 against the accused”). 7 In resolving appellant's Confrontation Clause claim, our focus is on whether Thompson's statements were admitted for the truth of what was asserted, and if so, whether, for federal constitutional purposes, they nevertheless were non-hearsay because they were appellant's own “adoptive admissions,” as the government contends. 8

[11] Turning first to appellant's argument that the trial court erred in admitting those portions of the videotape in which Thompson asserted that appellant killed his wife, we conclude that there was *184 no Confrontation Clause violation. We have no trouble concluding that these statements were not admitted to prove the truth of the matter asserted. As the jury had been informed (through the testimony of Agent Garrett), Thompson cooperated with the government in an attempt to get appellant to confess to or to reveal any information he had about the murder. We think it would have been apparent to the jury that Thompson's statements about appellant committing the murder were made to elicit a confession or other incriminating information from appellant, and that Thompson's statements were not themselves evidence that appellant committed the murder. 9 And, to the extent that Thompson's willingness to cooperate with investigators to gather evidence against appellant signaled to the jury that appellant's long-time friend Thompson distrusted appellant or believed he was guilty, that signal was already conveyed by Garrett's testimony about Thompson's agreement to cooperate with law enforcement agents.

[12] As to Thompson's utterances about his giving appellant a gun a week before the murder, the government does not deny that the statements were admitted for their truth. Indeed, it could not in good faith do so, because, in both his opening and closing arguments, the prosecutor relied on Thompson's words (together with appellant's responses or silence) to establish the fact that Thompson gave appellant a gun a week before the murder. 10 Rather, the government contends that Thompson's utterances were admissible as (non-hearsay) adoptive admissions, i.e., to make *185 appellant's responses “recognizable as admissions,” 11 and for that reason did not give rise to a Confrontation Clause violation when played for the jury. See Hernandez v. State, 979 So.2d 1013, 1016–17 (Fla.Dist.Ct.App.2008) (stating that adoptive admissions do not violate the Confrontation Clause); United States v. Kehoe, 310 F.3d 579, 591 (8th Cir.2002) (pre-Crawford case holding that the Confrontation Clause did not guarantee the defendant the right to cross-examine a speaker whose statements were imputed to the defendant as adoptive admissions of a party opponent).

[13] [14] [15] [16] “A defendant may make an admission by adopting or acquiescing in the statement of another.” Blackson v. United States, 979 A.2d 1, 6 (D.C.2009) (quoting Harris v. United States, 834 A.2d 106, 116 (D.C.2003) (internal quotation marks omitted)). For a court to admit a statement as an adoptive admission, there need not be evidence that a defendant explicitly

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Wilson v. U.S., 995 A.2d 174 (2010) adopted another's statement, but there must be “some manifestation of [his] intent to adopt another's statements or evidence of [his] belief in the truth of the statements.” Harris, 834 A.2d at 117 (quoting United States v. Rollins, 862 F.2d 1282, 1296 (7th Cir.1988)). “Whether the defendant acquiesced in the statement can ... be shown by the context of the conversation and the surrounding circumstances.” Brown v. United States, 464 A.2d 120, 124 (D.C.1983). “When a statement is made in the presence of a party containing assertions of fact which, if untrue, the party would under all the circumstances naturally be expected to deny, failure to speak has traditionally been received as an admission[,]” Comford, 947 A.2d at 1185 (quoting 2 McCormick on Evidence § 262 (6th ed. 2006)), so long as “the statement [was] made in the defendant's presence and hearing, and the defendant ... actually underst[ood] what was said and [had] an opportunity to deny it.” Foreman v. United States, 792 A.2d 1043, 1052 (D.C.2002) (citation omitted). For a statement to be admissible as an adoptive admission, there is “no need for the evidence to clearly prove that [defendant] heard, understood, and unambiguously assented to all of the statements with his silence.” Blackson, 979 A.2d at 8 (internal quotation marks omitted) (italics added). “[R]ather, such statements are admissible as adoptive admissions so long as there is sufficient evidence from which a jury could reasonably conclude that the defendant unambiguously adopted another person's incriminating statement.” Id. (citation and internal quotation marks omitted).

At three points during the recorded conversation between Thompson and appellant that is in issue here, Thompson asked questions that referred to his having given appellant a gun a week before Inga Wilson's death. At one point, there was the following exchange:

Thompson: Well, why I got to lie then? Why—why I'm not tellin' [the police] I gave you a motherf***in' gun a week before your wife died?”

Appellant: Because that's gonna put everybody in it.

Shortly after that exchange, Thompson had the following exchange, in appellant's presence, with appellant's girlfriend, Sonya Jenkins, who was also present during the recorded conversation:

*186 Thompson: Do you know I gave [appellant] a gun a week before his wife got killed? Do you know that?! You know that. You really know that.”

Jenkins: [Inaudible]

Thompson: You know it now.

Jenkins: I know.

Thompson: You knew it? You knew it, or you know it now?

Jenkins: I've known of it.

Thompson: That I gave him a gun?

Jenkins: Yes.

Appellant: Tracy, I ain't got no reason to lie to you, man.

The third time Thompson referred to his having given appellant a gun a week before the murder was in this exchange:

Thompson: How the f*** would you feel if somebody tell you for three months, ‘Man, I need a gun. This dude's followin’ me, he's threaten' me, he's threaten' my—' ... And all of a sudden, a motherf***in' week later, your motherf***in' wife gets shot.”

Appellant: Tracy.

The government urges that in each of the exchanges quoted above, Thompson's statements or questions provided the context for an adoptive admission by appellant that Thompson gave him a gun a week before Inga Wilson's murder. In the first exchange, the government argues, although appellant did not explicitly adopt Thompson's assertion, the jury could reasonably find that his response—that Thompson's telling the truth would “put everybody in it”—was an acknowledgment of the short time span between appellant's receiving the gun and his wife's murder, and of the incriminating implications of that fact for both appellant and Thompson. As to the other exchanges—appellant's saying nothing when Thompson asked Jenkins whether she knew that Thompson had given appellant a gun a week before the murder, and appellant's failure to dispute Thompson's statement that Inga Wilson was shot “a week later”—the government argues that appellant adopted Thompson's statements through his silence.

[17] [18] The trial court found that the videotape, including the exchanges quoted above, “should come in in context with the defendant's statements.... [I]t's the defendant's statements that matter on that tape.” Reviewing that determination de novo, 12 we agree that the exchanges above were admissible as adoptive admissions. The full transcript of the videotape creates no doubt that appellant was listening to Thompson's statements (and the videotape presumably provided visual confirmation of this). Thompson repeatedly expressed intense concern about the temporal proximity between his giving a gun to appellant and Inga Wilson's death, and appellant made repeated attempts to resolve Thompson's concerns by telling him that Thompson's lying to police would protect both men and by assuring Thompson that what looked like a set of facts that incriminated appellant as to the murder was not as it seemed. In light of appellant's desire to persuade Thompson to cooperate with appellant and to trust him, an obvious course would have been to deny or to correct, if he could, the very incriminating assertion about Inga Wilson's death following just one week after Thompson gave appellant a gun. Because this was an “assertion[ ] of fact which, if untrue, [appellant] would under all the circumstances naturally be expected to deny,” *187 Comford, 947 A.2d at 1185 (quoting 2 McCormick on Evidence § 262 (6th ed. 2006)), appellant's failure to object made it reasonable to regard his response as an admission. Appellant's failure to deny Thompson's assertions that he gave appellant a gun one week before Inga Wilson's murder is all the more notable for the fact that appellant did repeatedly deny that he had killed his wife when Thompson suggested otherwise. And, the fact that appellant remained silent even when Thompson directed to Sonya Jenkins his remarks about giving appellant a gun a week before Inga Wilson's death is a substantial factor in our conclusion, because “a failure to object or deny ... statements at the time they were made is especially probative of the defendant's acquiescence if they are made in the presence of a third party who was not an accomplice in the crime.” Blackson, 979 A.2d at 8 (citation and internal quotation marks omitted) (italics added). In sum, we are satisfied that there was sufficient evidence to support admissibility of the Thompson/appellant exchanges on the videotape for further consideration by the jury as adoptive admissions by appellant, and that the admission of the challenged portion of the exchanges for this purpose did not violate appellant's rights under the Confrontation Clause.

IV.

Detective George Blackwell, the lead detective on the case who interviewed appellant on the evening of December 13, 2003, testified at trial about the investigation. After Detective Blackwell recounted appellant's version of the events of the previous evening, the prosecutor asked the detective about the steps he took to verify the information that appellant provided. When Detective Blackwell responded that police officers had conducted a canvass of appellant's neighborhood by going door-to-door to ask people whether they saw or heard anything related to the case, the prosecutor asked: “As a result of that canvass, did you become aware of anyone who claimed to have see [sic] or said they saw the Wilsons arriving home or Ms. Wilson leaving back out around 11 p.m. on Friday, December 12th, 2003?” Defense counsel objected to the question on hearsay grounds. The trial court overruled the objection, stating that it was not hearsay because it was an identification. After the objection was overruled by the trial court, Detective Blackwell answered the question by saying: “No.” Appellant claims that the trial court erred in permitting Detective Blackwell's hearsay testimony.

[19] [20] The government agrees that Detective Blackwell's statement was not an identification, but argues that it also did not relay to the jury any out-of-court statement by any of appellant's neighbors who may have been queried, and thus did not constitute hearsay. See Carter v. United States, 614 A.2d 542, 545 n. 9 (D.C.1992) (“Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”).

Though perhaps technically accurate, this argument is not entirely persuasive. If Detective Blackwell himself participated in the canvassing, as his testimony implied, his “no” answer to the question “did you become aware of anyone who claimed to have see [n] or said they saw the Wilsons arriving home or Ms. Wilson leaving back out around 11 p.m.?” conveyed the answers by everyone he canvassed that they did not see the Wilsons coming home or going out around 11 p.m. 13 We need not decide the hearsay *188 issue definitively, however. Assuming without deciding that the prosecutor's question to the detective elicited hearsay and that allowing the detective's answer was error, we can say with fair assurance that the (assumed) error was harmless. 14 To begin with, the fact that neighbors did not see the Wilsons coming home or Inga Wilson going out around 11 p.m. was, at best, weak proof that appellant's account was untrue, since neighbors may have been sleeping or simply may have never looked outside around the time in question. In contrast, there was ample, stronger evidence that, in the late hours of December 12 and the early morning hours of December 13, 2003, appellant was not at or near his home in Upper Marlboro, Maryland as he told investigators he was. Renee Benjamin testified that appellant called her around 12 a.m. asking for a ride home from the District, and cell phone records placed appellant's phone in the District, near the location where Inga Wilson's body was found, and not in Upper Marlboro. Because this admissible evidence significantly undermined appellant's alibi, it is “highly probably that [any] error [in allowing detective Blackwell's answer] did not contribute to the verdict.” Odemns, 901 A.2d at 782 (citations removed).

[21] [22] [23] We turn finally to appellant's argument that the evidence was insufficient to prove beyond a reasonable doubt that he killed Inga Wilson. Our review as to this issue is de novo. Poole v. United States, 929 A.2d 413, 415 (D.C.2007); United States v. Bamiduro, 718 A.2d 547, 550 (D.C.1998). We “review the evidence in the light most favorable to the government, giving full play to the right of the jury to determine the credibility, weigh the evidence, and draw justifiable inferences of fact, and drawing no distinction between direct and circumstantial evidence.” Timberlake v. United States, 758 A.2d 978, 980 (D.C.2000). We will reverse only where there is no evidence upon which a reasonable juror can infer guilt beyond a reasonable doubt. Id. at 981.

[24] In this case, there was an array of evidence from which the jury could reasonably infer, and could conclude beyond a reasonable doubt, that appellant murdered his wife. Approximately a week before his wife was killed, appellant falsely told Renee Benjamin that his wife had been in a car accident and was in the hospital with serious injuries, and on December 12, 2003, he told Benjamin that the family had decided to discontinue his wife's life support. In addition, less than a week before his wife was killed, appellant applied for an insurance policy on her life and listed himself as a beneficiary. From this evidence, the jury could infer that appellant had been planning and setting the stage for breaking the news of his wife's death. Further, appellant obtained a gun from Tracy Thompson just a week before his wife was killed, affording him a means to shoot his wife. When appellant was informed by the police that his wife had been killed, he threw the gun into the Patuxent *189 River. That evidence, plus the appellant's inconsistent accounts about the circumstances in which he had paid $100 to the woman who drove him to his home during the early morning hours of December 13, 2003, suggest that appellant was attempting to hide from police information about his activities around the time of his wife's death. All this evidence, in conjunction with Benjamin's testimony that contradicted appellant's claim that he was not in the District on the night of the murder and the cell phone records that placed appellant's phone, at 12:51 a.m. on December 13, near the street where Inga Wilson's body was found, provided a sufficient basis for the jury to conclude that appellant committed first-degree, premeditated murder. Cf. Drake v. State, 476 So.2d 210, 215–16 (Fla.Dist.Ct.App.1985) (holding that there was sufficient evidence to sustain jury's verdict that appellant was guilty of killing his wife where appellant was engaged in an extramarital affair, appellant told his lover that he had already divorced his wife, appellant was the beneficiary of his wife's recently acquired insurance policy, appellant was the last person to see decedent before she was attacked, and appellant's testimony was contradicted in many respects).

For the foregoing reasons, the judgment of conviction is

Affirmed.

Footnotes 1 The weapons convictions were for possession of a firearm during a crime of violence (D.C.Code § 22–4504(b) (2001)), carrying a pistol without a license (D.C.Code § 22–4504(a) (2001)), possession of an unregistered firearm (D.C.Code § 7–2502.01 (2001)), and unlawful possession of ammunition (D.C.Code § 7–2506.01(a)(3) (2001)). 2 By contrast, Inga Wilson's supervisor testified that she had been present at work every day during the week before her death. 3 Evans told the court that “to be perfectly candid with the court, I don't even remember anything this young man may have told me.” 4 As appellant notes, “erroneous deprivation of the right to counsel of choice, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error,” making it “unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation,” because such an error “bears directly on the framework within which the trial proceeds.” United States v. Gonzalez–Lopez, 548 U.S. 140, 148, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (citations and internal quotation marks omitted). We note that, in this case, the “bear[ing] ... on the framework within which the trial proceeds” was somewhat called into question by the prosecutor's advice to the court that Evans “[is] here now because Mr. Gersteinfeld [one of appellant's other trial counsel] is a Maryland bar member and needs a D.C. stand-in to be here pro hoc [sic].” The prosecutor also stated that Mr. Gersteinfeld “has another D.C. bar member at the table.” Although appellant's counsel questioned this explanation at oral argument before this court, neither Evans nor appellant's other trial counsel disputed it during the discussion of the disqualification issue in the trial court, perhaps thereby conveying the impression that Mr. Evans was not expected to play a major role in presenting or shaping the defense case. This does not appear to have been a factor in the court's disqualification ruling, however; therefore, we need not discuss it further. 5 But see id. at 151, 126 S.Ct. 2557 (“[T]he right to counsel of choice does not extend to defendants who require counsel to be appointed for them”). 6 The prosecutor suggested that the court could give a limiting instruction to inform the jury about the limited purpose for which Thompson's statements on the videotape were offered. However, the defense did not request such an instruction, and no such instruction was given. 7 See also United States v. Thomas, No. 09–13138, 2010 WL 827906, at *5, 2010 U.S.App. LEXIS 5204, at *13–*14 (11th Cir. Mar. 11, 2010) (holding that the admission of tape recorded conversations between defendant and “Darlene” did not violate defendant's right of confrontation under the Sixth Amendment because the government “offered the conversations to place in context [defendant's] responses to Darlene, not to establish the truth of Darlene's statements,” because defendant's responses were “enigmatic without Darlene's questions to place them in context,” and because Darlene's statements “provide context for [defendant's] cryptic remarks to Darlene about the time and location of the drug transaction”); United States v. Hendricks, 395 F.3d 173, 184 (3d Cir.2005) (holding that admission of statements by a criminal informant that are reasonably required to place the defendant's statements into context does not violate defendant's Confrontation Clause rights); see also Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985) (“The nonhearsay aspect of [witness's account] of Peele's confession—not to prove what happened at the murder scene but to prove what happened when respondent confessed—raises no Confrontation Clause concerns”). 8 Under Federal Rule of Evidence 801(d)(2)(B), an adoptive admission, i.e., “a statement of which [a party-opponent] has manifested an adoption or belief in its truth,” is “not hearsay.” By contrast, although we have adopted the substance of Rule 801(d)(2), see Comford v. United States, 947 A.2d 1181, 1185 (D.C.2008), “our cases continue to treat party-admissions as an exception to the rule against hearsay.” Id. (italics added). However, as Crawford established, the fact that evidence is admissible under a hearsay exception does not resolve the issue of whether its admission violates a defendant's Confrontation Clause rights. Because we must consider the hearsay status vel non of Thompson's statements on the videotape to determine whether their admission was improper as a federal constitutional matter, we believe it is appropriate to utilize the federal framework of analysis—i.e., the rule that a statement adopted as a party-admission is not hearsay (rather than the rule of our case law that party-admissions are admissible under an exception to the hearsay rule). Cf. Moran v. Burbine, 475 U.S. 412, 429 n. 3, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (explaining that if the issue of whether Sixth Amendment rights were triggered depended on whether there existed an attorney-client relationship, “the type of circumstances that would give rise to the right would certainly have a federal definition,” and would not be controlled by “a state court's interpretation of state law” regarding when such a relationship exists). An alternative approach in resolving appellant's Confrontation Clause challenge would be to focus on whether Thompson's statements were testimonial rather than on whether they were hearsay at all. We reasoned in a previous case that certain statements did not constitute “testimonial statements within the meaning of Crawford ” because they “were not elicited during structured police interrogation or given by the declarant to any law enforcement officer.” Hammond v. United States, 880 A.2d 1066, 1100

(D.C.2005) (citing, inter alia, the holding in United States v. Saget, 377 F.3d 223, 229 (2d Cir.2004), that “a declarant's statements to a confidential informant, whose true status is unknown to the declarant, do not constitute testimony within the meaning of Crawford ”). That can also be said of Thompson's statements here. But the fact that Thompson made the statements while cooperating with the FBI in an effort to elicit and record incriminating statements by appellant makes it much more difficult (if possible at all) to conclude that the statements, if hearsay, were non-testimonial. Our conclusion that the statements (together with appellant's responses) were not hearsay, but instead were appellant's own adoptive admissions, obviates the need for an analysis of whether the statements were testimonial. 9 Some jurisdictions have required a limiting instruction when third-party statements are admitted for non-hearsay purposes. See, e.g., Sanabria v. State, 974 A.2d 107, 116 (Del.Super.Ct.2009) (“[I]f the trial court concludes that the probative value of the background information is not substantially outweighed by its unfair prejudice to the defendant and decides to admit a third-party statement into evidence, the admission of the background information must be accompanied by a limiting instruction to the jury”). We have not adopted such a per se rule, however, see Johnson v. United States, 387 A.2d 1084, 1087 (D.C.1978) (en banc) (explicitly rejecting rule that the trial court has “an absolute sua sponte obligation to issue an immediate cautioning instruction whenever evidence is brought in which is admissible only for a limited purpose”), and appellant did not request a limiting instruction at trial (even though the government expressed its willingness to have one). We therefore cannot find reversible error. See Gilliam v. United States, 707 A.2d 784, 785 (D.C.1998) (en banc) (“in any case—without exception—in which evidence has been properly admitted for a specific purpose and the defense has not requested an instruction limiting jury consideration of it to that use, the trial court's failure to instruct in that manner on its own initiative is reviewable only for plain error”); Jones v. United States, 477 A.2d 231, 242 (D.C.1984) (concluding that the plain-error test was not met because the court's omission of a limiting instruction was not “so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial”) (citation and internal quotation marks omitted). We are satisfied that the jury, aware that Thompson was attempting to get appellant to incriminate himself, would have understood that Thompson's unadopted statements were not offered for the truth of the matter asserted. Cf. United States v. Kenyon, 481 F.3d 1054, 1063 (8th Cir.2007) (holding that, despite the absence of a limiting instruction, third-party statements were admissible as background information about the police investigation, because it was “unlikely the jury gave it greater effect”). 10 Given this, we agree with appellant that Thompson's utterances containing references to his giving appellant a gun a week before the murder are correctly treated as statements that require an analysis of whether they were hearsay, even though (as shown by the passages we quote infra ) the utterances were couched as questions. See Martin v. United States, 991 A.2d 791, 797 (D.C.2010) (“[Q]uestions usually cannot be characterized as intentional assertions and hence are not hearsay. But that is not invariably so.”). 11 Brown v. United States, 464 A.2d 120, 124 n. 4 (D.C.1983) (quoting United States v. Lemonakis, 485 F.2d 941, 948 (D.C.Cir.1973), and explaining that another individual's statements accompanied the defendant's statements not as evidence of the truth of the former's contents but to make the defendant's responses “intelligible to the jury and recognizable as admissions”). 12 As we explained in Blackson, while a “trial court's decision to admit or exclude evidence is reviewed only for abuse of discretion,” 979 A.2d at 6, the court's exercise of discretion must rest upon correct legal standards, and thus our review of a court's ruling on whether an utterance may be considered non-hearsay is de novo review of a question of law. 13 Moreover, the detective's answer was elicited to cast doubt on appellant's alibi defense, and was not “merely descriptive of the [police] investigation.” Gamble v. United States, 901 A.2d 159, 170 (D.C.2006). 14 We review violations of the hearsay rule under the standard of Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). In re D.B., 947 A.2d 443, 446–47 (D.C.2008); Odemns v. United States, 901 A.2d 770, 781 (D.C.2006). Therefore, we will find reversible error “only if, after pondering all that happened, we cannot say, with fair assurance, that the judgment was not substantially swayed by the error.” In re D.B., 947 A.2d at 453 (internal quotation marks and citations omitted).

999 A.2d 36 District of Columbia Court of Appeals.

In re A.B., N.D., and Ma.F. N.B., Appellant.

Nos. 06–FS–1010, 06–FS–1011, 06–FS–1012. | Argued May 21, 2009. | Decided July 1, 2010.

Synopsis Background: Mother appealed from decision of the Superior Court, Laura A. Cordero, J., adjudicating her children as neglected.

Holdings: The Court of Appeals, Glickman, J., held that:

[1] neither pediatrician's lack of specialization in genetics (or in bone disorders) nor her partial reliance on another expert's finding was ground for disqualifying her as expert; and

[2] evidence was not sufficient to support trial court's finding that children were neglected.

Affirmed in part and reversed in part.

Attorneys and Law Firms

*38 Laurie P. McManus for appellant.

John Woykovsky, Assistant Attorney General, Office of the Solicitor General, with whom Peter J. Nickles, Acting Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and Catherine Ferrando, Assistant Attorney General, Office of the Solicitor General, were on the brief, for appellee District of Columbia.

Before RUIZ, GLICKMAN, and THOMPSON, Associate Judges.

Opinion

GLICKMAN, Associate Judge:

Appellant N.B. asks us to reverse the adjudication of her three young daughters *39 as neglected children within the meaning of D.C.Code § 16–2301(9) (2001 & 2009 Supp.). The trial court found that three-month-old Ma.F. had suffered physical abuse, which her parents, N.B. and M.F., had failed to make reasonable efforts to prevent; that five-year-old A.B. and seven-year-old N.D., who lived in the same household as Ma.F., were in imminent danger of being physically abused themselves; and that all three children were without proper parental care or control. N.B.'s challenge to these findings raises two principal questions. 1

The first is whether the trial court erred in allowing Dr. Allison Jackson, a pediatrician and expert on child abuse, to render the opinion that Ma.F.'s multiple fractures were caused by blunt force trauma rather than a genetic bone disorder known as osteogenesis imperfecta, where Dr. Jackson based her opinion, in part, on the findings of a colleague in a medical specialty (pediatric genetics) outside her own area of expertise. We conclude the court properly admitted Dr. Jackson's testimony under the general rule that an expert witness is permitted to rely on the opinion of another expert in formulating her own opinion when

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 In re A.B., 999 A.2d 36 (2010) such reliance is reasonable in the expert's particular field. Although the rule is not a license for one expert merely to parrot the conclusion of another, that is not what occurred in this case.

The second question is whether there was sufficient evidence for the trial court to conclude that A.B. and N.D. were neglected children. The court so found in consideration of the pattern of physical abuse inflicted on their infant sibling, Ma.F., with whom they resided; A.B.'s report that her mother and Ma.F.'s father had hit her with a ruler and a belt; and the adverse inference the court drew upon finding that Ma.F.'s father testified falsely at trial when he denied having corporally punished the girls. We conclude that the evidence before the court was insufficient to support the adjudications of neglect as to A.B. and N.D., in essence because it did not show that the children had been, or were in imminent danger of being, abused within the meaning of the neglect statute.

I. Background

[1] Ma.F. was three months old when her parents, N.B. and M.F., brought her to Children's National Medical Center (“Children's Hospital”) in the middle of the night because she was in discomfort, her feet were swollen, and the skin on her feet was peeling. X-rays of the feet revealed fractures of her left first metatarsal (the “big toe”) and the ends of her tibias near her ankles. The tibia fractures were of the “corner” or “bucket handle” type, where a sliver of the bone shears off from the main shaft—or, to put it another way, the plane of the fracture is closer to being parallel to the length of the bone than it is to being transverse. A follow-up full skeletal survey, which x-rayed all the bones in Ma.F.'s body from multiple views, disclosed a number of additional fractures in her arms and legs, including corner fractures of her left and right tibias and her left femur near the knee, a corner fracture of her right humerus near the elbow, two fractures of her left radius (one near the wrist and the other near the elbow), and a fracture of her left ulna. The fractures were in various stages of healing, implying they had been sustained at different times.

Ma.F. was treated at Children's Hospital by emergency room staff and by the orthopedic surgeon on call. In light of the *40 troubling x-ray results, Ma.F. also was evaluated by Dr. Allison Jackson, the Medical Director of the Child and Adolescent Protection Center at the hospital. Dr. Jackson concluded that Ma.F.'s injuries were likely caused by inflicted blunt force trauma, and she filed a report of suspected abuse with the D.C. Child and Family Services Agency (CFSA). In addition, she recommended that a pediatric geneticist be consulted. The purpose of this consultation was to rule out the alternative diagnostic possibility—one the radiologist rejected and Dr. Jackson considered unlikely, based on Ma.F.'s x-rays and other clinical evidence—that the fractures could be attributed to osteogenesis imperfecta, a congenital disorder causing weak and brittle bones. The geneticist subsequently reported that the DNA test results for that disorder were negative, confirming Dr. Jackson's and the radiologist's judgment. Over the objections of Ma.F.'s parents, Dr. Jackson testified to her diagnostic conclusions in the trial proceedings below. 2

N.B. and M.F. met with a social worker from CFSA's Child Protection Services Unit the day after Dr. Jackson filed her report. Neither parent was able to account for Ma.F.'s injuries (an inability that continued through the ensuing proceedings in Superior Court 3 ). Perceiving that Ma.F. and her sisters, A.B. and N.D., would all be at continuing risk of physical abuse if they remained in N.B. and M.F.'s custody, the CFSA social worker had the three girls removed and placed in shelter care. 4 The District filed neglect petitions as to each girl. 5 A.B. and N.D. thereafter were examined by a pediatrician, Dr. Betina Franceschini, and A.B. was evaluated by a psychologist, Dr. Jennifer Carter. Along with Dr. Jackson, Dr. Franceschini and Dr. Carter would provide critical testimony when the neglect petitions came on for trial. 6

II. Dr. Jackson's Testimony Regarding Ma.F.'s Injuries

[2] N.B. frames her challenge to the admission of Dr. Jackson's opinion testimony regarding the cause of Ma.F.'s injuries as an attack on the doctor's qualifications. To be qualified as an expert, a witness must have “sufficient skill, knowledge, or experience” in the relevant area that her opinion testimony will “probably aid” the trier of fact to arrive at the truth. 7 The determination that a proposed expert has the necessary qualifications is committed to the trial court's sound discretion. 8 In *41 the present case, the court qualified Dr. Jackson as an expert not only in the area of pediatrics generally, but also in the field of child abuse and neglect specifically. There is no serious dispute about the soundness of that ruling. Dr. Jackson was a board-certified pediatrician with extensive training and experience in the diagnosis, care, and treatment of abused children. At Children's Hospital, she served as medical director of the department charged with evaluating and treating children suspected of having been maltreated. She had taught medical students and other professionals about child abuse and neglect, and she was a member of the child abuse and neglect section of the American Academy of Pediatrics and of specialty organizations such as the American Professional Society on Abused Children. Dr. Jackson had evaluated hundreds of children for physical abuse —a large percentage of whom, like Ma.F., presented with bone fractures.

N.B. contends, however, that Dr. Jackson was unqualified to interpret Ma.F.'s blood test results and exclude the genetic disorder osteogenesis imperfecta (“O.I.”) as the cause of her bone fractures. Only a geneticist, N.B. argues, would have been qualified to render such an expert judgment. Dr. Jackson admittedly was not a specialist in genetics or in the treatment of the congenital bone disorder. N.B. asserts that Dr. Jackson impermissibly parroted the geneticist's conclusion in rendering her own medical opinion that Ma.F.'s fractures were caused by blunt force trauma and not O.I.

We disagree. N.B. understates Dr. Jackson's expertise and overstates the extent to which Dr. Jackson relied on the geneticist's finding. Dr. Jackson testified without contradiction that she was capable of recognizing osteogenesis imperfecta herself by virtue of her pediatric training and her experience. Indeed, she testified that any pediatrician would have been able to do so. Dr. Jackson had cared for other patients with the disorder and had diagnosed O.I. or offered it as a differential diagnosis in other cases in which the condition later was confirmed. She was familiar with the clinical signs of O.I., which include abnormal bone mineralization and fragility, misshapen bones and abnormal healing of older fractures, so-called “wormian” bones in the skull (small plates in between the cranial bones), and a bluish tinge to the whites of the eyes. When Dr. Jackson examined Ma.F. and reviewed her x-rays and laboratory test results at Children's Hospital, she observed none of those signs. Dr. Jackson agreed that a particularly mild form of O.I. might not manifest such obvious symptoms, but, as she explained in her testimony, the sheer number of fractures Ma.F. had sustained made the theoretical possibility of mild O.I. implausible. The fact that Ma.F.'s fractures healed and no new fractures occurred in the two-month period following her placement in shelter care 9 was further evidence that the fractures were not due to a congenital bone disorder. Rather, Dr. Jackson explained, the fractures were of a particular type known to be caused by pulling, twisting, or tugging of an infant's extremities. (Other possible explanations, such as a traumatic childbirth, were ruled out for various reasons we need not go into here.) Consequently, though Dr. Jackson included O.I. as a differential diagnosis and requested a genetic consultation to exclude it definitively (in part because she had been unable to obtain a family history from the *42 parents), she considered it unlikely. 10 And while she cited the negative blood test and geneticist's report in support of her opinion, she testified that they were not “significant” or “important” factors in her diagnosis.

[3] [4] We are satisfied that neither Dr. Jackson's lack of specialization in genetics (or in bone disorders) nor her partial reliance on another expert's finding was disqualifying. A physician offering expert testimony need not be “a specialist in the particular field of which [s]he speaks,” 11 provided she is qualified to speak to the particular question at issue. 12 Dr. Jackson was qualified by her training and experience to diagnose O.I. or its absence based on her clinical examination of the patient and her review of the x-rays and hospital lab tests. Her lack of expertise in the causes and treatment of the disorder and the reliability of the blood test for the condition did not render her incompetent to give her diagnosis.

As to Dr. Jackson's partial reliance on a colleague's expertise, “[m]edical professionals have long been expected to rely on the opinions of other medical professionals in forming their opinions.” 13 This court has adopted Federal Rule of Evidence 703, 14 which permits an expert witness to base her opinion on information that is otherwise inadmissible in evidence, including the out-

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 In re A.B., 999 A.2d 36 (2010) of-court opinion of another expert, so long as that information is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” 15 The Rule was “designed to broaden the basis for expert opinions ... and to bring the judicial practice into line with the practice of the experts themselves when not in court.” 16 The drafters of Rule 703 expressly contemplated that it would permit a physician expert to rely on “reports and opinions from nurses, technicians and other doctors” in formulating her opinion. 17 *43 This is so even if those reports and opinions concern matters outside the testifying physician's realm of expertise. “[I]t is common in technical fields for an expert to base an opinion in part on what a different expert believes on the basis of expert knowledge not possessed by the first expert; and it is apparent from the wording of Rule 703 that there is no general requirement that the other expert testify as well.” 18

[5] [6] [7] [8] [9] [10] To be sure, “[a] scientist, however well credentialed he may be, is not permitted to be the [mere] mouthpiece of a scientist in a different specialty.” 19 Where there exists a serious question about “the soundness of the underlying expert judgment” that the testifying expert is unequipped to address, the author of that judgment must be called to testify in support of it; otherwise, if the testifying expert lacks “an adequate foundation” for her opinion apart from the judgment of the other expert, the testifying expert's opinion must be struck. 20 Likewise, if it is shown that the underlying expert judgment is “so lacking in probative force and reliability that no reasonable expert” could rely on it, an opinion that rests “entirely” upon such a flawed foundation should be excluded. 21 “In most cases,” however, “objections to the reliability of out-of-court material relied upon by [an expert witness] will be treated as affecting only the weight, and not the admissibility, of the evidence.” 22 “[A] properly qualified expert is assumed to have the necessary skill to evaluate any second-hand information and to give it only such probative force as the circumstances warrant. Accordingly, the court should accord an expert wide latitude in choosing the sources on which to base his or her opinion.... [T]he judge may not substitute his or her judgment for the expert's as to what data are sufficiently reliable, provided that such reliance falls within the broad bounds of reasonableness.” 23 The opponent remains free to impeach the basis of the testifying expert's opinion through cross-examination and the presentation of a counter-expert.

In this case, there is no evidence suggesting that it was unreasonable for Dr. Jackson to rely on the geneticist's report of Ma.F.'s blood test result. It was precisely the kind of routine medical consultation that physicians normally request and rely on, and there is no reason to think the consultation was performed inappropriately in this instance. All the evidence corroborated the geneticist's report; there is no evidence Ma.F. actually had O.I. or any other bone disorder. And, in rendering her opinion, Dr. Jackson did not “parrot” *44 the geneticist's conclusion; she had her own independently sufficient reasons for her diagnosis. Although she also cited the blood test, her opinion did not rest on it. In short, Dr. Jackson was not a mere “mouthpiece” for an expert in another specialty, and the trial court did not abuse its discretion in permitting her to testify regarding her diagnosis of Ma.F.'s injuries without requiring the government to call the geneticist. 24

Accordingly, we affirm the trial court's judgment that Ma.F. was a neglected child.

III. The Sufficiency of the Evidence that A.B. and N.D. Were Neglected Children

[11] [12] N.B.'s second challenge is to the legal sufficiency of the evidence to support the neglect adjudications of five-year- old A.B. and seven-year-old N.D. 25 Our review of such a challenge is deferential: “[t]his court will reverse a finding of neglect only if it is plainly wrong or without evidence to support it,” 26 and only after viewing the evidence in the light most favorable to the court's ruling. 27 Nonetheless, we are compelled to agree with N.B. that the government did not present evidence sufficient to prove that her two older children were neglected.

Neither A.B. nor N.D. testified at trial, and the government introduced no direct evidence or expert witness testimony that either girl ever had been abused, injured, or otherwise neglected by (or through the fault of) their parents. The physical examinations performed on the girls at CFSA's request by Dr. Franceschini, a pediatrician, were, at best, inconclusive. A.B. had no observable

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 In re A.B., 999 A.2d 36 (2010) injuries or any other physical sign that she had been mistreated. On the older girl, Dr. Franceschini observed “a one-centimeter, old, healing scar” on her right arm and a more recent two-centimeter “red linear abrasion” on her forehead. N.D. denied ever having been hit by an adult and told the pediatrician that the abrasion on her forehead had happened “on the playground a long time ago”—an explanation Dr. Franceschini deemed plausible. Dr. Franceschini found no reason to conclude that N.D. had been abused or neglected.

The sole evidence that either girl ever had been maltreated was provided in the *45 brief reports of what A.B. had said to Dr. Franceschini and to Dr. Carter, the psychologist who evaluated her. 28 When Dr. Franceschini asked A.B. whether she ever had been hit by an adult, A.B. responded that her mother (appellant N.B.) “sometimes hit her with a ruler or a belt.” Dr. Franceschini learned nothing further from A.B. on that score. Dr. Carter testified that she too questioned A.B. about her parents' disciplinary practices. Regarding her mother, A.B. “was very quiet and non-responsive.” When Dr. Carter asked about her father, though, A.B. stated, “[D]addy whips me with a belt when I do something wrong.” Dr. Carter also described an exercise in which she had A.B. finish incomplete sentences with the first thing that came to her mind. To a sentence beginning with the words “I wish my dad,” A.B. added the words “would not hit.” Dr. Carter confirmed that A.B. was referring to M.F. (and not to her biological father, S.D.). In reporting A.B.'s statements, Dr. Carter expressed no opinion as to whether they were true, or whether the child had been mistreated. 29

N.B. did not testify at trial. M.F., who did take the witness stand, acknowledged having disciplined A.B. and N.D. when they misbehaved, but claimed he did so only by depriving them of things they wanted, or by sending them to their rooms.

Crediting A.B.'s statements to Dr. Franceschini and Dr. Carter, the court found that N.B. and M.F. had subjected each of the older girls to “excessive corporal punishment” by hitting them with a belt and (in the mother's case) a ruler. The court found that M.F. had lied on the witness stand when he denied using corporal punishment, and it inferred from his “false exculpatory statements a consciousness of guilt, from which guilt itself could be inferred.” 30

The court found that A.B. and N.D. were neglected children under two statutory criteria: they were “without proper parental care and control,” 31 and they were “in imminent danger of abuse and another child living in the same household ... ha[d] been abused.” 32 The rationale for each of those determinations was identical: considering the “pattern” of abuse inflicted on Ma.F. 33 in conjunction with the history of parental use of excessive corporal punishment in disciplining the older girls, the court concluded that A.B. and N.D. were *46 at risk of future physical abuse themselves. 34

In our view, the court's rationale was flawed. The finding that Ma.F. had endured a pattern of physical abuse for which her parents bore responsibility was supported by the evidence. By itself, however, that finding was not enough to support findings of neglect with respect to the older girls. “[T]here is no per se rule allowing a child to be adjudicated neglected ... simply because a different child in the same home has been abused.... A finding of imminent danger [of being abused] does not necessarily follow from the fact that a sibling has been abused.” 35 Proof that parents have mistreated an infant does not demonstrate that the older children in the same household are similarly endangered. “[A]n individualized finding of imminent danger must be made for each child.” 36

Of course, the trial court here relied on its additional finding that, by hitting them with a belt and a ruler, the parents had employed excessive corporal punishment in disciplining A.B. and N.D. It is difficult to sustain this finding as to N.D. She did not complain of such mistreatment, 37 and A.B. did not say her parents had hit her older sister. While the court was entitled to draw an adverse inference from the falsity of M.F.'s testimony, we doubt that inference was sufficient by itself to support a finding that M.F. had employed excessive corporal punishment against N.D. The only evidence contradicting M.F.'s testimony about discipline came from A.B.'s statements.

[13] Although it is a close question, we do think the court fairly could find by the requisite preponderance of the evidence that M.F. (if not also the children's mother) had used excessive corporal punishment in disciplining A.B. 38 Corporal punishment *47 is excessive when it goes beyond discipline “reasonable in manner and moderate in degree and otherwise does not constitute cruelty.” 39 The use of an object such as a belt is not necessarily excessive, 40 but it certainly is a “relevant” consideration. 41 Despite the lack of contextual information, A.B.'s statements to Dr. Carter supported the inference that M.F. employed the belt against her harshly and with some regularity when she was disobedient. At five years of age, she was young to be “whipped.” No extenuating circumstances were shown. And the court could infer their absence, and a lack of moderation and reasonableness, from the falsity of M.F.'s denial that he had hit A.B. at all.

[14] [15] Nonetheless, to be upheld, “a finding of neglect must embody a correct understanding of the relevant statutory terms.” 42 That corporal punishment exceeds the scope of “legitimate parental ‘discipline’ ” does not mean it meets the statutory definition of “abuse,” 43 or that the child is in imminent danger of being abused. The legislature has decided that even excessive physical punishment does not amount to “abuse” unless it entails the infliction of either “physical or mental injury.” 44 As to the former, the term “physical injury” is defined to mean “bodily harm greater than transient pain or minor temporary marks.” 45 The evidence did not show that A.B. (or N.D.) ever was threatened with such physical injury by her parents' practice of corporal punishment, or that either child faced the prospect of such injury in the future. While we should not be understood as condoning the use of physical discipline, hitting a child with a belt (or a ruler) might well cause no more than “transient pain or minor temporary marks,” depending on how it is done. 46 So far as appears, neither A.B. nor N.D. had endured worse than that. Their infant sister had, of course—much worse. But Ma.F.'s physical mistreatment was not attributed to the same sort of discipline imposed on her older (and not so vulnerable) *48 sisters, nor to the same causes, and in the absence of some such linkage, there was no ground to find that it portended comparable mistreatment in store for them.

The trial court did not find, and the government cites no record evidence showing, that A.B. or N.D. had suffered or was threatened with “mental injury,” defined as “harm to a child's psychological or intellectual functioning, which may be exhibited by severe anxiety, depression, withdrawal, or outwardly aggressive behavior, or a combination of those behaviors, and which may be demonstrated by a change in behavior, emotional response, or cognition.” 47 It is noteworthy that Dr. Carter expressed no such opinion in the case of A.B. 48 And the government presented no evidence that A.B. or N.D. had witnessed the abuse of their infant sister. 49

Accordingly, for insufficiency of proof, we reverse the trial court's judgment that A.B. and N.D. were neglected children.

IV. Conclusion

For the aforesaid reasons, the judgment in No. 06–FS–1012 (the neglect adjudication of Ma.F.) is affirmed. The judgments in Nos. 06–FS–1010 and 06–FS–1011 (the neglect adjudications of A.B. and N.D.) are reversed.

So ordered.

Footnotes 1 Ma.F.'s father, M.F., has not challenged the neglect adjudications on appeal. S.D., the biological father of A.B. and N.D., did not participate in the proceedings below and is not a party to this appeal. 2 The radiologist and the geneticist were not called to testify at trial. The orthopedic surgeon, who did testify, described Ma.F.'s injuries but expressed no opinion as to their cause or whether Ma.F. had a bone disorder.

3 The trial court made no finding as to who had injured Ma.F., concluding only that her parents had failed to make reasonable efforts to prevent the infliction of abuse upon the child. See D.C.Code § 16–2301(9)(A)(i). 4 See D.C.Code §§ 16–2309(a)(3), 16–2310(b) (2009 Supp.). 5 See D.C.Code § 16–2312(a)(1) (2009 Supp.). 6 N.D. was evaluated by a different psychologist, who was not called to testify at the neglect trial. 7 Dyas v. United States, 376 A.2d 827, 832 (D.C.1977) (internal quotation marks and citation omitted); accord, e.g., Jones v. United States, 990 A.2d 970, 979 (D.C.2010); Burgess v. United States, 953 A.2d 1055, 1062 (D.C.2008). N.B. does not dispute that the other criteria set forth in Dyas for the admission of expert testimony—that the subject matter be beyond the ken of the average layperson, and that the state of knowledge in the relevant field permits a reasonable opinion to be advanced—were met here. 8 See In re Melton, 597 A.2d 892, 897 (D.C.1991) (en banc). 9 This information was provided at trial by the orthopedic surgeon, who had examined Ma.F. both at Children's Hospital and after she had been placed in foster care. 10 According to Dr. Jackson, the pediatric geneticist did meet with Ma.F.'s parents. While it is not clear what information the geneticist obtained from them, there is no suggestion in the record that Ma.F. has a family history of O.I. 11 Melton, 597 A.2d at 897 (quoting Baerman v. Reisinger, 124 U.S.App.D.C. 180, 181, 363 F.2d 309, 310 (1966)). 12 See, e.g., Ferrell v. Rosenbaum, 691 A.2d 641, 648–49 (D.C.1997) (“[I]t is not necessary that an expert witness ... be knowledgeable about the standard of care applicable to a particular medical specialty. Instead, the issue is whether the expert is qualified concerning the particular procedure about which he is testifying.”); Jenkins v. United States, 113 U.S.App.D.C. 300, 307–08, 307 F.2d 637, 644–45 (1962) (explaining that a clinical psychologist may be qualified to diagnose a mental illness even though she has no medical training and therefore is unqualified to treat it); accord, Ibn–Tamas v. United States, 407 A.2d 626, 637 (D.C.1979). 13 Walker v. Soo Line R.R., 208 F.3d 581, 588 (7th Cir.2000) (holding that trial court erred in excluding the conclusion of a medical team leader that plaintiff suffered from post-traumatic stress disorder, even though the team leader was not a specialist in psychiatry and relied on the work of a team member, and stating, “we [do not] believe that the leader of a clinical medical team must be qualified in every individual discipline encompassed by the team in order to testify as to the team's conclusions”). “With the increased division of labor in modern medicine, the physician making a diagnosis must necessarily rely on many observations and tests performed by others and recorded by them.” Id. (quoting Birdsell v. United States, 346 F.2d 775, 779–80 (5th Cir.1965)). 14 Melton, 597 A.2d at 901. 15 See id. at 901–904. 16 FED.R.EVID. 703 advisory committee's note to 1972 Proposed Rules. 17 Id. This long has been the rule in this jurisdiction. See, e.g., Jenkins, 113 U.S.App.D.C. at 304–05, 307 F.2d at 641–42 (holding that trial court erred in excluding psychiatrist's testimony that he changed his diagnosis based on his consideration of later psychological reports). 18 Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609, 613 (7th Cir.2002) (emphasis removed). 19 Id. at 613–14. “Such reliance would amount to offering an opinion of another in violation of the hearsay rule.” Jenkins, 113 U.S.App.D.C. at 305 n. 9, 307 F.2d at 642 n. 9. 20 Dura Auto., 285 F.3d at 612–13. 21 Melton, 597 A.2d at 903 (quoting In re “Agent Orange” Prod. Liab. Litig., 611 F.Supp. 1223, 1245 (E.D.N.Y.1985)). 22 Id. at 903–04. In criminal cases, the Confrontation Clause of the Sixth Amendment may limit a prosecution expert's reliance at trial on testimonial hearsay, including the out-of-court opinion of a non-testifying expert. See Veney v. United States, 936 A.2d 809 (D.C.2007) (reserving the issue for future consideration). This is not a criminal case, however, and no comparable limitation applies here. 23 Melton, 597 A.2d at 903 (internal citations omitted). 24 N.B. herself could have called the geneticist to testify, of course. 25 N.B.'s challenge to those adjudications is not moot (as the government contends) merely because all the children already have been returned to her and their cases have been closed, if only because the neglect findings still “might indirectly affect the appellant's status in potential future proceedings” relating to each child. In re E.R., 649 A.2d 10, 12 (D.C.1994) (quoting In re H. Children, 156 A.D.2d 520, 548 N.Y.S.2d 586, 587 (N.Y.App.Div.1989)). This is particularly true inasmuch as the biological father of A.B. and N.D. (see footnote 1, supra ) could cite their neglect adjudications as a reason to alter their custody. See D.C.Code § 16–914 (2001). Our affirmance of Ma.F.'s neglect adjudication does not alter that conclusion; nor does it mean that any additional injury to N.B.'s reputation flowing from the neglect findings with respect to her other children is too negligible to support her standing to contest them. In In re G.H., 797 A.2d 679, 683, 685–86 (D.C.2002), for example, where the appellant's standing to appeal findings of neglect

with respect to three children was based solely on his reputational interest, and we affirmed the neglect adjudication of one child, we nonetheless went on to declare the evidence insufficient to support the neglect adjudications of the other two children. 26 In re L.H., 925 A.2d 579, 581 (D.C.2007) (internal quotation marks omitted); see also D.C.Code § 17–305(a) (2001); In re S.G., 581 A.2d 771, 774 (D.C.1990). 27 E.g., In re E.H., 718 A.2d 162, 168–69 (D.C.1998). 28 The trial court admitted A.B.'s out-of-court statements to Dr. Franceschini and Dr. Carter (over objection in the latter case) under the hearsay exception for statements made for purposes of medical diagnosis or treatment. See In re Kya. B., 857 A.2d 465, 472 (D.C.2004). That ruling is not challenged on appeal. 29 Dr. Carter was not asked about her psychological evaluation of A.B., and her evaluation report (on which she relied to refresh her recollection at trial) was not introduced in evidence. It is, however, in the court file and the record before us. Lest there be any question, we note that the report described A.B. as an apparently “well functioning child” who presented with no “acute mental health problems.” 30 See In re G.H., 797 A.2d 679, 684 (D.C.2002) (“Credibility determinations were for the judge, as the trier of fact.... Moreover, the judge could reasonably infer consciousness of guilt, and therefore guilt itself, from [the witness's] apparently false exculpatory statements.”). 31 D.C.Code § 16–2301(9)(A)(ii). 32 D.C.Code § 16–2301(9)(A)(v). 33 From the fact that Ma.F.'s numerous fractures evidently were inflicted over an extended period of time rather than in a single “isolated or impulsive incident,” the court inferred that she had been the victim of “a consistent pattern of conduct posing a continuing risk.” 34 There was no claim, nor any evidence, that A.B. or N.D. had suffered abuse (as that term is used in the neglect statute, which we discuss below) in the past, nor did the court so find. Rather, the court explained, “[b]ased on [Ma.F.'s] type and number of fractures, the consistent pattern of [Ma.F.'s] maltreatment, [M.F.'s] false exculpatory statements, and the continued presence of [A.B.] and [N.D.] in the home, concerns of imminent danger are well founded.” And “[t]he unexplained fractures sustained by [Ma.F.] as a result of physical abuse combined with the excessive corporal punishment exerted on [N.D.] and [A.B.], establish the lack of proper parent care and control.” The court cited no other basis for finding a lack of proper parental care and control. 35 In re Kya. B., 857 A.2d 465, 472–73 (D.C.2004) (citing In re Te. L., 844 A.2d 333, 343–44 (D.C.2004)). 36 Id. at 473. 37 The record on appeal contains a psychological evaluation of N.D. performed by a Dr. Michael Gilliard. Dr. Gilliard did not testify, his evaluation report was not introduced in evidence at trial, and the trial court did not purport to rely on the report in finding that N.D. was a neglected child. Out of an abundance of caution, however, we have examined the report ourselves. As described in the report, N.D.'s statements to Dr. Gilliard on the subject of parental discipline do not establish that either parent used excessive corporal punishment in disciplining her: [N.D.] indicated that as an infant, her mother would pop her on the hand as a form of discipline. She subsequently reported that over time, her mother primarily used punishment and corporal punishment as forms of discipline. [N.D.] denied having ever felt as if she were abused.... According to [N.D.], her father's primary form of discipline was corporal punishment. She asserted that her father's corporal punishment was not “hard.” She denied having ever felt as if she were abused by her father. 38 The government's burden is to prove neglect by a preponderance of the evidence. In re E.H., 718 A.2d 162, 168 (D.C.1998). 39 D.C.Code § 16–2301(23)(B)(i) (2009 Supp.); see also In re G.H., 797 A.2d 679, 684 (D.C.2002) (“Our neglect statute does not proscribe all physical chastisement of a child by a parent or by one acting in loco parentis. ... The question is whether the physical force used ... was reasonable under the facts and circumstances of the case.... The great preponderance of authority is to the effect that a parent has a right to punish a child within the bounds of moderation and reason, so long as he does it for the welfare of the child.”) (internal quotation marks, citations and brackets omitted). 40 See In re S.K., 564 A.2d 1382, 1391 (D.C.1989) (Schwelb, J., concurring in part and dissenting in part) (suggesting that “two or so blows with a belt would not, under ordinary circumstances, be sufficient to constitute child abuse within the meaning of the statute”). 41 In re Kya. B., 857 A.2d 465, 471 (D.C.2004). 42 In re L.H., 925 A.2d 579, 581 (D.C.2007). 43 See id. at 581–82. 44 D.C.Code § 16–2301(23)(A)(i) (2009 Supp.). The statutory definition of the term “abused” also encompasses “sexual abuse or exploitation” and “negligent treatment or maltreatment,” which are themselves defined terms. See D.C.Code § 16–2301(23)(A)(ii), 23(A)(iii), (24), (25), (31), (32). These other meanings of the term “abused” are not implicated in this case.

45 D.C.Code § 16–2301(30) (2009 Supp.). See, e.g., In re L.H., 925 A.2d at 582 (“[B]y defining physical injury as it does, the statute makes clear that not every such act (including even ‘striking a child with a closed fist’) is ‘per se physical abuse.’ ”) (quoting D.C.Code § 16–2301(23)(B)(i)(II)). 46 See In re K.S., 966 A.2d 871, 880 n. 15 (D.C.2009). 47 D.C.Code § 16–2301(31). 48 To the contrary, see footnote 29, supra. Cf. In re K.S., 966 A.2d at 880–81. 49 It might be suggested that the parental use of excessive corporal punishment, even if it did not place A.B. and N.D. in imminent danger of “abuse,” by itself meant that the two girls were “without proper parental care or control” (and hence were neglected children within the meaning of D.C.Code § 16–2301(9)(A)(ii)). That was not the trial court's rationale, nor is it the District's argument on appeal. We believe the statutory language cannot be stretched so far. Not every improper parenting method constitutes neglect, and ordinarily, we think, instances of excessive physical discipline (not amounting to “abuse”) would not, without more, justify a finding that a child lacked proper care and control. Cf. In re L.H., 925 A.2d at 583 (holding that a “single act of corporal punishment [,] even considering it to be excessive,” did not support the conclusion that the child was “left without necessary care and supervision”). A pervasive regime of unreasonable and immoderate physical punishment would be a different story, but that story is not told by the record here.

11 A.3d 273 District of Columbia Court of Appeals.

In re K.J. R.J., Appellant. In re K.J. B.J., Appellant.

Nos. 09–FS–1351, 09–FS–1352. | Argued Nov. 17, 2010. | Decided Jan. 13, 2011.

Synopsis Background: Female adolescent child's incarcerated mother and maternal grandmother appealed from order entered following bench trial in the Superior Court, Laura A. Cordero, J., finding that mother and grandmother neglected child.

Holdings: The Court of Appeals, Belson, Senior Judge, held that:

[1] grandmother did not neglect child by choosing not to allow child to return home after she had left and by failing to respond to inquiries from Child and Family Services Agency (CFSA);

[2] incarcerated mother neglected child by failing to arrange care for child during the 30-day investigation by Child CFSA, beginning after child voluntarily left grandmother's home and culminating in CFSA's taking child into custody; and

[3] child's out-of-court statements, that she had trouble due to her frequent moving between caretakers and that her grandmother yelled and cursed at her, were not against child's interest so as to be admissible as admissions of a party opponent.

Affirmed in part and reversed in part.

Attorneys and Law Firms

*274 Cynthia Nordone, for appellant R.J.

David S. Stein, for appellant B.J.

Stacy L. Anderson, Office of the Solicitor General, with whom Peter J. Nickles, Attorney General for the District of Columbia, and Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for the District of Columbia.

Lawrence H. Huebner, Guardian ad Litem, for K.J.

Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and BELSON, Senior Judge.

BELSON, Senior Judge:

The subject of these consolidated appeals is K.J., a female adolescent child. K.J.'s incarcerated mother, R.J., and maternal *275 grandmother, B.J., appeal from the order entered following a bench trial in which each was found to have neglected K.J. Both R.J. (the “mother”) and B.J. (the “grandmother”) argue that there was insufficient evidence to find that they neglected K.J. in violation of D.C.Code § 16–2301(9)(A)(ii–iv) (2010 Supp.). We agree that there was insufficient evidence to find that the grandmother neglected K.J. and reverse that finding. The mother, in addition to arguing insufficiency, also argues that the trial court committed constitutional error in refusing to allow several of K.J.'s statements to be admitted as non-hearsay admissions by a party opponent. We disagree with both of those arguments, affirm the trial court's decision regarding the mother, and hold that there was sufficient evidence to find that her actions met the standard for neglect set forth in D.C.Code § 16–2301(9)(A)(iv).

II.

K.J.'s mother was incarcerated on October 1, 2007. At that time K.J., who was born on October 27, 1995, was approaching her twelfth birthday. The mother granted a power of attorney to K.J.'s aunt, L.J., to take care of the child. After a few months, K.J. left her aunt's care and for the next year bounced between her maternal grandmother, her maternal grandfather, M.A., and one of her mother's friends, T.M., until finding relative stability for nearly seven months living in her grandmother's home. While K.J. was living under her grandmother's roof, her mother granted a power of attorney to K.J., the grandmother's twenty-three- year-old niece (the “niece”) who was also living in the grandmother's home. The grandmother and her niece both cared for K.J. by providing her with food and clothing, taking responsibility for her at her school, and by setting rules for her.

On June 20, 2009, K.J. voluntarily left her grandmother's home because of certain discipline her grandmother was imposing. The preceding day, K.J. had been standing outside her grandmother's home wearing only pajama pants and a small t-shirt while talking to a group of teenage boys who were there to see if another teenager living in the grandmother's house was at home. K.J.'s grandmother told her to come inside, but K.J. refused. Her grandmother punished K.J. by “grounding” her inside for the weekend. K.J. responded by saying that she did not have to listen to her grandmother because she was not her mother. Her grandmother subsequently increased K.J.'s punishment to a full week. The next day, K.J. packed her bags and told her grandmother that she was leaving to stay at her godmother's house. The grandmother told her, “[y]ou go out that door, don't come back in my door.” The niece also spoke with K.J. before she left, told her not to go and warned her that she would report K.J. as a runaway child if she left. K.J. left with her bags. The niece then reported K.J. to the police as a runaway, and gave them the address of the godmother.

On that same day, after K.J. arrived at her godmother's house, K.J.'s godmother called the police and asked them to take K.J. into custody. Metropolitan Police Department (MPD) Officers Jeremy Verdon and Kelan Edwards answered the godmother's call, and upon arrival ran a computer program and discovered that K.J. was listed as a missing person. The officers contacted the niece, who stated that she and K.J.'s grandmother shared custody of K.J. The niece then told the officer something to the effect that “we don't want her back here.” Officers Verdon and Edwards then transported K.J. to the Child and Family Services Agency (CFSA).

*276 Child Protective Services investigator Kerstin Magnuson received a call later the same day regarding the circumstances and began an investigation. During a thirty-day investigation period, many attempts were made at contacting family members of K.J. to find a suitable caregiver. Ms. Magnuson did succeed in contacting the niece, but determined that K.J. could not be released into her custody as an adequate caregiver because the niece did not have her own housing. Ms. Magnuson attempted to speak by telephone with the grandmother, left her voice mail messages, knocked on her door, and asked the niece to contact the grandmother on her behalf, but the grandmother never responded to Ms. Magnuson. Ms. Magnuson concluded that because there were no other placement options and the grandmother could not be contacted, K.J. should be placed in CFSA custody, and she was placed in a foster home.

CFSA social worker Karen Price had been assigned to K.J.'s case ten weeks before the time of trial. Upon receiving the assignment, Ms. Price gave K.J. a clothing voucher after realizing that all of K.J.'s clothes were too small to be worn in public.

After visiting K.J. at her foster home and school, Ms. Price found that K.J. was happy, well-adjusted and wanted to be adopted. Ms. Price had not received any calls from the niece or the grandmother, and she did not meet with any maternal relatives before trial. K.J. stated that she would like to be adopted by her foster mother, and that was also Ms. Price's recommendation. 1

III.

[1] [2] [3] The trial court found that the grandmother neglected K.J. by choosing not to let K.J. return to her home, and by failing to respond to inquiries during the CFSA investigation (Supp.App. at 17), and that this met the requirements for a finding of neglect set forth in D.C.Code § 16–2301(9)(A)(ii). It is there provided that a child is neglected if the child is “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his or her physical, mental, or emotional health.” D.C.Code § 16–2301(9)(A)(ii). The record supports the trial court's finding that the grandmother was acting in loco parentis, although she was not the legal guardian of K.J. This court has noted that under D.C.Code § 16– 2301(9)(A)(ii), if individuals are acting in loco parentis they can be found to have neglected a child if that child is “without” the requisite care. In re B.C., 582 A.2d 1196, 1198 (D.C.1990). It does not follow, however, that ending an in loco parentis relationship is, by itself, grounds for a finding of neglect. Fuller v. Fuller, 247 A.2d 767, 770 (D.C.1968). In Fuller, we discussed the in loco parentis relationship as follows:

The status assumed by one in loco parentis is a “somewhat nebulous legal relationship of a temporary character dependent on the intention of the party assuming the obligations of a parent.” The continuance of that relationship is a matter which lies within the will of one standing in loco parentis and may be abrogated by him at any time. It differs from adoption in that it is strictly temporary in nature, rather than permanent.

Id. at 770 (quoting Cooley v. Washington, 136 A.2d 583, 585 (D.C.1957)). As one who has voluntarily assumed an in loco parentis relationship is free to end it at any time we must look at the circumstances surrounding the grandmother's termination of the relationship to determine whether the *277 evidence of the manner in which she terminated the relationship was sufficient to support a finding of neglect on her part.

[4] [5] In reviewing a sufficiency of the evidence claim, “we must consider the evidence in the light most favorable to the government, giving full play to the right of the judge, as the trier of fact, to determine credibility, weigh the evidence, and draw reasonable inference.” In re S.G., 581 A.2d 771, 774 (D.C.1990). A neglect adjudication is set aside only if it is plainly wrong or without evidence to support it. In re Am.V., 833 A.2d 493, 497 (D.C.2003).

[6] In the petition initiating this case, the District of Columbia alleged that the grandmother neglected K.J. On appeal, however, the District takes the position that there was insufficient evidence to find that the grandmother neglected K.J. We agree. We look first at the nature of the relationship between K.J. and her grandmother. In determining whether an in loco parentis relationship existed, this court has considered such things as whether the individual “supervised the children every day after school, accompanied them on weekend outings, and occasionally purchased food and clothes for them.” In re S.L.E., 677 A.2d 514, 522–23 n. 14 (D.C.1996). Respondent lived in her grandmother's home for approximately seven months. The trial court found that there was an in loco parentis relationship because while K.J. was under her grandmother's roof, “she would cook for her, she would provide money for her when she could, she would go to school with her when she was suspended, she would make sure that she stayed in the house when she was suspended so that she would basically serve her school suspension at [her grandmother's] home.”

Clearly, there was substantial evidence supporting the determination that K.J.'s grandmother acted in loco parentis. By telling K.J. that, if she left, she could not come back to her home, failing to contact CFSA after she left, and not responding to the investigator's inquiries about K.J., the grandmother severed that in loco parentis relationship. As we have pointed out, however, severing that relationship alone is not sufficient to establish neglect. Fuller, 247 A.2d at 770. To establish neglect it must be shown that the grandmother left K.J. “without” one of the statutory requirements of “proper parental care or control, subsistence,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 In re K.J., 11 A.3d 273 (2011) education as required by law, or other care or control necessary for his or her physical, mental, or emotional health.” D.C.Code § 16–2301(9)(A)(ii). After K.J. left her grandmother's house she was briefly at her godmother's house and then was in the custody of the CFSA.

[7] The trial court's finding that the grandmother neglected K.J. was based entirely on the grandmother's choice not to allow K.J. to return to her home, and her failure to respond to CFSA's inquiries during its investigation. (Supp.App. at 17). The circumstances surrounding K.J.'s voluntary departure from her grandmother's home, the grandmother's choosing not to let K.J. return to her home, and the grandmother's failure to respond to CFSA messages do not support a finding that the grandmother neglected her. On the day of K.J.'s departure and in the aftermath, the grandmother did not force K.J. to leave. Before K.J. left her grandmother's home, she told her grandmother and the grandmother's niece that she was going to her godmother's house. The grandmother was aware that her niece thereupon called the police, reported that K.J. was a runaway child, and gave the police the godmother's address. Not long after K.J. arrived at her godmother's house, the godmother telephoned the police who came to that house, picked up K.J., and took her to CFSA, where K.J. *278 stated that she did not wish to return to her grandmother's home. Other arrangements for her care were promptly made by CFSA. K.J.'s grandmother did not terminate her in loco parentis status in a fashion that harmed K.J. or made the grandmother responsible for K.J.'s being without the statutory requirement of D.C.Code § 16–2301(9)(A)(ii). We recognize that the circumstances under which an in loco parentis relationship is terminated could warrant a finding of neglect, but that was not shown to be the case here. Accordingly, we reverse the trial court's finding of neglect on the part of the grandmother, B.J.

[8] With respect to the mother, R.J., we affirm the ruling of the trial court that she neglected her daughter. Under D.C.Code § 16–2301(9)(A)(iv) a child is neglected when his or her “parent, guardian or custodian refuses or is unable to assume the responsibility for the child's care, control, or subsistence and the person or institution which is providing for the child states an intention to discontinue such care.” D.C.Code § 16–2301(9)(A)(iv). After the mother was incarcerated in October 2007, she made several different arrangements for her daughter, but she did not make any arrangements for K.J. during the thirty-day CFSA investigation that led to CFSA's taking custody. The mother was unable to “assume the responsibility for the child's care” after the grandmother's words and conduct indicated “an intention to discontinue” care over the child, and the grandmother's niece was not deemed an adequate caregiver. Id.

[9] The record shows that the mother made some efforts to be involved in K.J.'s upbringing. As the trial court found, the mother knew of the many challenges K.J. faced between October 2007 and June 2009, but she responded only intermittently. She also failed to make adequate alternative or emergency plans for when arrangements fell through. After K.J. was accepted back at the grandmother's home for the last time, her mother selected the niece, a young woman who had no home and no steady employment, as K.J.'s caregiver. The court questioned the “suitability” and appropriateness of that selection. The mother did not find a suitable arrangement for K.J. after she left her grandmother's care. While we recognize that the mother was making arrangements under the difficult circumstance of incarceration, it remains the case that the results of her efforts fell short, and left K.J. without the care required by § 16–2301(9)(A)(iv). Because the mother failed to arrange care for K.J. after she left her grandmother's home, there is sufficient evidence to support a finding of neglect on her part. 2 As we have determined the mother neglected K.J. under the standard as set forth in D.C.Code § 16–2301(9)(A)(iv) we need not reach a discussion *279 relating to D.C.Code § 16–2301(9)(A)(ii).

[10] [11] In our evaluation of the sufficiency of the evidence we have taken note of the mother's argument that the trial court erred in excluding several hearsay statements by K.J. when it determined that those statements were not admissions by a party opponent because K.J. was not a party to the proceedings, and the statements were not against her interest. Evidentiary rulings by the trial court are reviewed for abuse of discretion but, “[d]etermining whether a statement falls within an exception to the hearsay rule, on the other hand, presents a question of law which this court considers de novo.” Brown v. United States, 840 A.2d 82, 88 (D.C.2004). This court has followed Federal Rule of Evidence 801(d)(2), which provides that an out-of-court statement may be admissible if it is “made by a party and offered against the party.” In re Ty.B., 878 A.2d 1255, 1261–63 (D.C.2005) (emphasis omitted). Rule 10 of the Superior Court Rules Governing Neglect and Abuse Proceedings states that

“[t]he parties to a neglect proceeding shall include the District of Columbia, the child alleged to be neglected, and the parents, guardian or custodian.” Super. Ct. Neg. R. 10.

[12] While the trial court was mistaken in determining that K.J. was not a party to the proceedings, it did not err, and therefore did not abuse its discretion, in excluding the statements because they were not against K.J.'s interest. The mother argues that her daughter's statements provided evidence of a child who was well taken care of by the caregivers that the mother had arranged. While some of the statements do suggest that K.J. was at times provided adequate care, several of the statements also describe how K.J. had trouble due to her frequent moving between caretakers, and that her grandmother yelled and cursed at K.J. while she was in her care. K.J.'s interest was not in showing that she was inadequately cared for by any one caregiver, but that her constant moving back and forth between parties, and the absence of a willing caretaker during the period after she left her grandmother's house amounted to neglect. K.J.'s interest at the time of trial was in being adopted by her foster mother, and those statements about her travails support that interest. Her statements, therefore, were not against her interest and the trial court did not err in excluding them as hearsay. We are, in any event, satisfied that even if we assume that K.J.'s out-of-court statements should have been admitted, any “error was sufficiently insignificant to give fair assurance that the judgment was not substantially swayed by it.” In re Ty.B., 878 A.2d at 1267 (quoting Brooks v. United States, 599 A.2d 1094, 1102 (D.C.1991)).

Accordingly, the judgment on appeal herein with respect to R.J. is affirmed, and the judgment with respect to B.J. is reversed.

So ordered.

Footnotes 1 There is no petition for K.J.'s adoption involved in this case. 2 There is also sufficient evidence to hold that the mother neglected her daughter according to another section of the D.C.Code dealing specifically with incarcerated parents. That section provides that a child is neglected if their parent “is unable to discharge his or her responsibilities to and for the child because of incarceration....” D.C.Code § 16–2301(9)(A)(iii). For this section to apply, there must be a nexus between the incarceration and the inability to provide care. See In re T.T.C., 855 A.2d 1117, 1119 (D.C.2004) (holding an incarcerated father's actions satisfied the standard for neglect who initially made arrangements for his children to receive adequate care but failed to provide sufficient legal protection so that the children's drug-addicted mother could not take custody over them). Here, there seems to be a similar nexus between the mother's incarceration and her inability to take or amend custodial arrangements for K.J. However, we need not reach this issue as we affirm the determination that she neglected K.J. under D.C.Code § 16–2301(9)(A)(iv).

26 A.3d 234 District of Columbia Court of Appeals.

Carlos O. MELENDEZ, Appellant, v. UNITED STATES, Appellee.

No. 08–CF–244. | Argued Nov. 17, 2010. | Decided March 3, 2011.

Synopsis Background: Defendant was convicted in the Superior Court, Neal E. Kravitz, J., of second-degree murder as the lesser- included offense of first-degree murder. Defendant appealed.

Holdings: The Court of Appeals, Washington, C.J., held that:

[1] trial court did not abuse its discretion by withholding a ruling on defendant's third-party perpetrator defense until the government rested its case-in-chief;

[2] trial court did not abuse its discretion by precluding defense counsel in opening statement from identifying the third party by name;

[3] trial court did not commit plain error in its response to improper prosecution rebuttal argument on defendant's third-party perpetrator defense;

[4] statement by four-year old child who witnessed victim's murder was an excited utterance, under the excited utterance hearsay exception;

[5] child's out-of-court photographic identification of defendant was admissible; and

[6] inconsistent jury verdicts, finding defendant guilty of second-degree murder as the lesser-included offense of first-degree murder but not guilty of second-degree murder as the lesser-included offense of felony murder, did not require trial court to act sua sponte to clear up confusion.

Affirmed.

Attorneys and Law Firms

*238 Thomas E. Heslep, Washington, DC, for appellant.

Katherine M. Kelly, Assistant United States Attorney, with whom Ronald C. Machen, Jr., United States Attorney, and Roy W. McLeese III and Elizabeth Trosman, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and BELSON, Senior Judge.

Opinion

WASHINGTON, Chief Judge:

Carlos Melendez appeals from his conviction for second-degree murder as the lesser-included offense of his charged crime, first-degree murder. Because we find none of his arguments to have merit, we affirm his conviction.

On March 7, 2006, Carlos Melendez was charged with five counts: (1) kidnapping while armed (of Mayra Margot Gutierrez); (2) kidnapping (of Moises Cardoza); (3) carjacking while armed; (4) first-degree felony murder; and (5) first-degree premeditated murder. After a jury trial, Melendez was found guilty of second-degree murder as a lesser-included offense of first-degree premeditated murder (count 5) and of the kidnapping of Moises Cardoza. He was acquitted of the kidnapping while armed of Mayra Margot Gutierrez (“Margot”) and of first-degree felony murder, as well as its lesser-included offense of second-degree murder. The carjacking charge was dismissed at trial. After the trial, the trial court granted Melendez's motion for a judgment of acquittal on the kidnapping charge. Thus, the only conviction that resulted from Melendez's trial was for second-degree murder as a lesser-included offense of first-degree premeditated murder.

All of the charges against Melendez stemmed from the June 5, 2005 murder of Margot, whose body was found in a stairwell at 3132 16th Street, Northwest. Melendez had previously lived with Margot and her three children in Baltimore, Maryland. Celino Marcia, the father of the three children, had also previously lived with Margot but moved out around the time Margot began dating Melendez. While Melendez was living with Margot, Margot's friend Keila Gonzalez (“Keila”) also moved into Margot's home.

At trial, Keila testified that she overheard many arguments between Melendez and Margot that usually took place in their bedroom, often as a result of Melendez's jealousy. According to Keila, Margot would often look disheveled after such arguments and asked Keila multiple times to call the police. In March or April of 2005, Margot asked Keila to move out because of Margot's troubles with Melendez, and Keila moved five or six houses away to stay with her friend, Myra Cardoza, and Myra's four-year- old child, Moises Cardoza (“Moises”). Soon thereafter, Melendez and Margot broke up and, according to Melendez's friend Salvador Blanco, Melendez sought to make amends with his previous long-time lover, Rosario Ventura, by moving in with Ventura's brother in Woodbridge, Virginia. Ventura lived at the 16th Street address where Margot's body was ultimately found.

On June 4, the day before Margot's murder, Keila overheard a phone call in which Melendez told Margot that he wanted to see her to return her rings to her. Maribel Variela, Margot's mother, also testified *239 that about a week prior to the June 5 murder, Melendez had called her asking for Margot's whereabouts. Variela said that she had also called Melendez around the same time to ask him to return Margot's rings, which he said he would.

On the morning of June 5th, the day Margot was murdered, Margot invited Keila to a barbeque hosted by Margot's cousin, Yamileth Torres, in Silver Spring. Variela also testified that she spoke to Margot that morning and that Margot had told Variela that she intended to go to Torres' barbeque later that afternoon. Keila declined to attend but instead took one of Margot's children shopping, while Margot took Moises with her to the barbeque. Margot never arrived at the barbeque, and Torres' calls to Margot seeking an explanation were never answered.

At about 2:30 or 3:00 on the afternoon of June 5, Fausto Arguta discovered Margot's body in the stairwell of the apartment building in which he lived at 3132 16th Street, Northwest. The body was located in the second-floor stairwell about thirty feet from Ventura's apartment. It appeared to the police detective who responded that the body had been placed in the stairwell after the attack and that the attack had not taken place far away. Margot's car was found in the parking lot behind the apartment

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Melendez v. U.S., 26 A.3d 234 (2011) building the next day. An autopsy revealed that Margot had been strangled to death and that there were marks on her body consistent with being dragged while unconscious.

Keila testified that later that afternoon in Baltimore, around 5:30 or 6:00, she was at the home she shared with the Cardozas when she saw Moises running alone down the alley behind the home looking very upset. Keila asked where Margot was, and he told her Margot was “with [Melendez]” and to “call the doctor.” Moises told Keila that he and Margot had gone to a park to get some rings from Melendez and that Melendez had put a knife to Margot's neck and taken them to Melendez's house. According to Keila, Moises said that he had “seen” Melendez punching Margot as they came out of the bathroom of Melendez's house, that Margot's hands and mouth had been taped, and that she had been “thrown to the ground.” Moises also told Keila that Melendez had then driven Moises home to Baltimore. At that point, Keila called Margot many times but got no answer, and also called Baltimore police and Margot's mother, Variela, to tell her that Margot was missing.

Moises also testified at trial. He identified Melendez in the courtroom and said that although he did not know how Margot died on June 5, he knew Melendez had killed her. Melendez had taken Moises to a room, where Moises sat, and gone into another room where Moises could hear Margot screaming to help her. Moises did not help because he was scared Melendez would harm him too, since Melendez had a knife, tape, some gloves, and a bag. Moises testified that he did not see what Melendez did with these items, but that Melendez later took Moises back to his home in Baltimore in Margot's car, without Margot, at which point Moises told Keila everything that had happened.

The day after the murder, in an interview with Baltimore Police Detective Donald Bradshaw, Moises orally identified “Carlos Melendez” through a translator as the one who harmed Margot. Two days later, D.C. Police Detective Maria Flores also interviewed Moises, who told her that he had witnessed Margot's murder and that “Carlos” was the one who hurt her. Flores conducted a second interview of Moises two days after that and showed him a confirmation photograph, in which he identified Melendez as “Carlos.”

*240 During the investigation that ensued, the police recovered a group of rings and trash bags from the living room and bedroom of Ventura's apartment at 3132 16th Street. A search of Melendez's truck on June 25 revealed two cell phones, a light blue bathroom rug on which were found fibers from the pink pants Margot wore on the day she was murdered, and a knife. Also, Margot's cell phone was recovered from the passenger door pocket of Melendez's work van.

At trial, two Sprint employees testified regarding Margot's and Melendez's cell phone records. The records revealed that Margot received a call from Melendez at 1:20 p.m. on June 5, and that both phones were transmitting from the same tower in Northwest D.C., located 1.5 blocks from where Margot's body was found. Both continued to use that tower until 2:15 p.m.; by 5:04 p.m. that day, both phones were transmitting from a different tower in Baltimore less than a half-mile from Margot's home. By 6:31 p.m., they were transmitting from the same Northwest D.C. tower as previously, and after 7:30 p.m. from a different tower in Woodbridge, Virginia, about five miles from Melendez's home.

In his defense, Melendez introduced evidence that it was Margot's former lover Celino Marcia who was Margot's true murderer and not him. First, Melendez called his former girlfriend, Ventura, who testified that she received a call from Marcia in 2005, telling her that Melendez was hanging out with “his wife” Margot and that they should do something to break the two up and also asking for Ventura's address. Ventura testified that Marcia said he “was going to do whatever was possible” to separate Margot and Melendez. Melendez also called two Baltimore police officers who testified that on separate incidents, they had responded to calls at Margot's house that she shared with Marcia at the time, each time in response to an alleged assault by Marcia.

Melendez's final witness was Marcia himself. He testified as to his prior relationship with Margot and said that while he was upset when Margot began dating Melendez, he got over it. Marcia admitted calling Ventura to say that Melendez should leave Marcia's home alone and asking for Ventura's address, but denied threatening Ventura or saying that he would do everything in his power to break Margot and Melendez up. Marcia testified that on the morning of the murder, he saw Margot with Moises at a gas station but did not ask where she was going. During the same gas station encounter, Marcia asked Margot why she

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Melendez v. U.S., 26 A.3d 234 (2011) was out with other people's children (Moises) and not her own, but testified that he was not angry about it. Marcia also testified that although Margot was the complainant in a court case pending against him stemming from a domestic violence incident between the two, it had been dropped before her death. Although he met with the prosecutor about Margot's homicide in 2005, Marcia did not learn that he would be a witness in this case until three days before his testimony. Finally, Marcia denied killing Margot and testified that he loved her very much.

II.

Melendez's primary argument on appeal is that the trial court abused its discretion by precluding Melendez from presenting, from the start of trial, a third-party perpetrator defense: that Marcia, rather than Melendez, killed Margot. The trial court did eventually allow Melendez to make this very argument, but not until the government had rested its case-in-chief. Melendez contends that the error occurred as a result of a combination of the trial court's failure to: (a) allow Melendez to mention *241 his theory that Marcia was the killer in his opening statement; (b) allow Melendez to cross-examine the government's witnesses for bias toward Marcia; and (c) properly address improper argument in the prosecution's rebuttal argument. Because the trial court properly addressed this issue when it arose as the trial progressed, Melendez's appeal on this issue fails.

[1] We review a trial court's determination on the admissibility of a third-party perpetrator defense for abuse of discretion, and that determination “will be upset on appeal only upon a showing of grave abuse.” Gethers v. United States, 684 A.2d 1266, 1271 (D.C.1996); McCraney v. United States, 983 A.2d 1041, 1050 (D.C.2009).

[2] [3] [4] [5] [6] Melendez's failure to provide a sufficient proffer before his initial efforts to introduce evidence of a third-party perpetrator defense dooms his appeal on this issue. Before a trial court will allow evidence of a third-party perpetrator defense, it must be confident that the evidence “tend[s] to indicate some reasonable possibility that a person other than the defendant committed the charged offense.” Winfield v. United States, 676 A.2d 1, 5 (D.C.1996). A defendant's proffer that demonstrates only that the third party “had even stronger motives to murder the victim than the accused is insufficient, without more, to establish the required link to the offense charged.” Id. (citation omitted). Thus, “the trial judge ordinarily may exclude evidence of third-party motivation unattended by proof that the party had the practical opportunity to commit the crime, including at least inferential knowledge of the victim's whereabouts.” Id. (emphasis added). Even if there is a sufficient proffer that the third party had such a practical opportunity, the trial court must then “balance the probative value of the evidence against the risk of prejudicial impact.” Id. As a result, the trial court “retain[s] full authority” to “exclude marginally relevant evidence creating the danger that proof of prior dealings or hostility between the victim and third persons will distract the jury from the issue in” the case at trial. Id.

[7] Here, we are satisfied that the trial court did not abuse its discretion by withholding a final ruling on the Winfield third- party perpetrator issue until Melendez had provided a more concrete proffer. While Melendez was able to provide evidence that Marcia may have had a motive to harm Margot, he could not initially provide sufficient evidence that Marcia had the opportunity to do so on June 5th. In Melendez's original pretrial Winfield proffer, Melendez proffered five pieces of evidence: (1) that Baltimore police officers would testify that they had responded to previous reports of domestic violence by Marcia against Margot; (2) that Melendez had placed the 911 call for one of these incidents, placing him and Marcia in “adversarial posture;” (3) that Marcia called Ventura seeking her help in preventing Melendez from seeing Margot; (4) that Marcia and Margot had a chance meeting at the gas station on the morning of her murder; and (5) that Melendez received a phone call in the days after the murder in which a male voice indicated he had harmed Margot and that Melendez would get a “big surprise,” after which Melendez allegedly received Margot's cell phone in the mail.

Without more, the fact that Marcia had a chance meeting with Margot at a gas station in Baltimore on June 5 is insufficient to show that he had the opportunity to kill her later in the day in the District of Columbia, merely because it theoretically would have been possible for Marcia to follow her there. Thus, we are satisfied that the trial court properly exercised its *242 discretion by excluding evidence that Marcia was the true murderer until Melendez provided a stronger proffer that Marcia was

“in any way connected with the actual” murder. See Williamson v. United States, 993 A.2d 599, 606–07 (D.C.2010) (upholding trial court's exclusion of Winfield defense where, among other things, no trial witness could place the third party at the crime scene); Resper v. United States, 793 A.2d 450, 460 (D.C.2002) (discussing opportunity of the third-party perpetrator to commit the crime and noting that “[t]he fact that others with reason to seek revenge may have been present in a neighboring state, in the District, or, perhaps, even in a nearby neighborhood, does not, without more, satisfy the requirement of ‘practical opportunity’ ”); Bruce v. United States, 820 A.2d 540, 546 (D.C.2003) (holding that a proffer of evidence that is “clearly speculative” of the third-party perpetrator's involvement in the crime is insufficient); Gethers, supra, 684 A.2d at 1272 (failing to find abuse of discretion where defendant made no proffer that a third-party perpetrator was “connected in any way” to the crime on trial). Melendez's counsel himself admitted that “where the defense falls short ... is being able to proffer that [Marcia] ... came from Baltimore down to Washington [after the gas station meeting]....” Therefore, the trial court did not abuse its discretion by precluding third-party perpetrator evidence at this point during the trial.

A. Opening Statement

[8] [9] Having determined that the trial court's exclusion of evidence of a third-party perpetrator defense was a proper exercise of its discretion, the trial court's decision to preclude Melendez from making such an accusation in his opening statement could not be considered an abuse of discretion. While defendants are entitled to present opening statements, “the scope and extent of [a] defendant's opening statement rests largely within the discretion of the trial judge.” Jennings v. United States, 431 A.2d 552, 560 (D.C.1981). Although the trial court precluded the defense from “point[ing] the finger” at Marcia by name in its opening statement, the trial court expressly permitted the defense to “tell the jury that the evidence is going to show that a person other than [Melendez] committed this offense;” the defense merely could not say who that person was. In fact, in his opening statement, Melendez's counsel argued that “what the defense is going to suggest to you throughout this trial [is] that someone other than Mr. Melendez killed this woman.” Because this was a perfectly reasonable limitation in light of Melendez's insufficient Winfield proffer, we cannot hold that the trial court abused its discretion by limiting Melendez's opening statement in this fashion.

B. Cross–Examination of Government Witnesses

[10] [11] Similarly, the trial court's parallel limitation upon Melendez's cross-examination of government witnesses was also proper. Where a trial court appropriately precludes introduction of evidence of a third-party perpetrator defense due to an insufficient Winfield proffer, its limitation on cross-examination of witnesses to exclude questioning about that defense is not an abuse of its discretion. McCullough v. United States, 827 A.2d 48, 56–57 (D.C.2003) (upholding trial court's preclusion of cross- examination of witnesses regarding the insufficiently-proffered third-party perpetrator defense while permitting questioning on a range of other relevant issues). In the instant case, the trial court prohibited Melendez from cross-examining government witnesses “in a way that tends to show that [Marcia] did this until [it had] *243 resolved the Winfield issue.” The trial court continued to say that this ruling did “not mean that [the defense] is precluded from cross-examining [on] an issue of bias or a motive to curry favor with the government that might come up with Mr. Marcia.... But if it involves Mr. Marcia, you ought to raise it with [the court] first.” Both the trial court and the government agreed that if Melendez eventually prevailed on the Winfield issue, he would be permitted to recall the previously-examined government witnesses in his own case-in-chief, if necessary. Melendez never sought to do so and never objected to this ruling. Since the trial court properly deemed Melendez's Winfield proffer insufficient, we are satisfied that it also properly exercised its discretion by limiting his cross-examination of government witnesses in this manner.

C. Prosecutor's Remarks in Rebuttal

After the government rested its case-in-chief, Melendez provided a final, more concrete Winfield proffer which the trial court ultimately found sufficient. This proffer contained one additional piece of evidence that tended to indicate that Marcia had the opportunity to commit the murder: according to Rosario Ventura, Melendez's “common law wife” who lived in the building where Margot's body was found, Marcia had telephoned Ventura and asked for her address a few months prior to the murder. Melendez's counsel added that when Ventura asked why Marcia wanted this information, Marcia said “because I want to get him out of the way.” This newly-proffered evidence swayed the trial court to accept Melendez's Winfield proffer since, in the trial court's opinion, Ventura's testimony was “the single most important aspect” of the proffer because it provided most of the “factual basis” of the “threats, et cetera, from Mr. Marcia to Ms. Ventura about the defendant and Margot.” The trial court concluded that Marcia's request of Ventura's address was “arguably a point of opportunity or tend[ed] to show some opportunity” and thereafter allowed Melendez to introduce a third-party perpetrator defense implicating Marcia.

After this ruling, Melendez presented his week-long defense case, arguing in closing that the evidence showed that Marcia, not Melendez, was Margot's murderer. In rebuttal, the prosecutor discredited this theory, telling the jury that

the defense does not put Celino Marcia on the radar screen until last week when [Ventura] testified.... It's only after, you know, that that whole little jail scam [ 1 ] does not work out, they probably figure out let's get Celino Marcia on the stick.... Why would [any other witnesses] mention anything about [Marcia] ... if the defense did not think to put him as a suspect until last week? That is absurd.

Without any defense objection, the trial court sua sponte convened a bench conference and expressed its displeasure at this line of argument in the wake of extended Winfield litigation prior to trial. When the trial court admonished her, the prosecutor said she would move on, and defense counsel asked for “a correction.” The trial court indicated that it was “open to the idea” of issuing some sort of corrective statement, but was not sure what the substance would be; defense counsel was also at a loss for what would be an appropriate limiting instruction. At that point, the *244 rebuttal continued and the prosecutor did not return to this line of argument. Nevertheless, on appeal, Melendez asserts that it was error for the trial court to fail to provide an additional remedy to cure any impropriety arising from the prosecutor's statements.

Because the trial court intervened immediately upon hearing the prosecutor's improper argument and offered to provide a limiting instruction if Melendez could devise one that would cure the error, Melendez's failure to offer a curative instruction means that we review this incident for plain error. See Irick v. United States, 565 A.2d 26, 32 (D.C.1989) (noting that in instances of alleged prosecutorial misconduct, “[w]here the defendant failed to object ... we will reverse his conviction only if the misconduct so clearly prejudiced his substantial rights as to jeopardize the fairness and integrity of his trial”). As the Supreme Court has held, “reversal for plain error in cases of alleged prosecutorial misconduct should be confined to ‘particularly egregious' situations.” Id. (citing United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (noting that “a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements must be viewed in context”)). Since the comment at issue was made in the government's rebuttal, it “must be viewed in perspective by examining the arguments of the defense.” Coleman v. United States, 515 A.2d 439, 450 (D.C.1986). In reviewing the trial court's actions, we must consider, in context, “the gravity of the [improper argument], its relationship to the issue of guilt, the effect of any corrective action by the trial judge, and the strength of the government's case.” Lee v. United States, 668 A.2d 822, 830 (D.C.1995) (finding prosecutor's “serious but isolated misstatement” of evidence in rebuttal not to be harmful error, much less plain error).

[12] Assuming arguendo that the prosecutor's comment was improper, it only related to the issue of Melendez's guilt by inference—namely, that since the defense's claim that Marcia was the killer was a recent fabrication, Melendez was the actual killer. In light of the strength of the government's case against Melendez, including Moises' eyewitness testimony and identifications, the cell phone records, and the physical evidence, the prosecutor's statement was not so grave as to warrant a finding of plain error based upon the trial court's response. Most importantly, the trial court itself intervened sua sponte to prevent any further improper argument and provided Melendez an opportunity to craft a suitable limiting instruction, which he declined to do. Under these circumstances, we cannot say that the trial court's response to the prosecutor's remark “seriously

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Melendez v. U.S., 26 A.3d 234 (2011) affect[ed] the fairness, integrity, or public reputation of the judicial proceeding.” See Daniels v. United States, 2 A.3d 250, 263 (D.C.2010) (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

In sum, the trial court properly exercised its discretion by excluding evidence of a third-party perpetrator defense until Melendez provided a sufficient Winfield proffer, and it did not plainly err by responding to the prosecutor's remarks in rebuttal. We therefore deny Melendez's appeal on this issue.

III.

Melendez's second argument is that the trial court abused its discretion by admitting, as excited utterances, testimony from Keila regarding Moises' statements to her upon his arrival at her home after Melendez dropped him off. Under the circumstances *245 of this case, we also conclude that this argument is without merit.

[13] [14] [15] [16] [17] When an appellant challenges the trial court's admission of hearsay statements as excited utterances, “[t]he underlying factual findings are reviewed under the ‘clearly erroneous' standard....” Odemns v. United States, 901 A.2d 770, 776 (D.C.2006). As with all hearsay exceptions, “the determination of whether a statement falls under [the excited utterance] exception ... is a legal conclusion, which we review de novo.” Dutch v. United States, 997 A.2d 685, 689 (D.C.2010) (citing Brown v. United States, 840 A.2d 82, 88 (D.C.2004)). Once we have determined that a statement qualifies for the excited utterance exception, “the decision whether to admit or exclude the proffered statement ... is reviewed for abuse of discretion.” Odemns, supra, 901 A.2d at 776. For a statement to qualify as an excited utterance and therefore as an exception to the general prohibition against hearsay evidence, three elements must be met:

(1) the presence of a serious occurrence which causes a state of nervous excitement or physical shock in the declarant, (2) a declaration made within a reasonably short period of time after the occurrence so as to assure that the declarant has not reflected upon his statement or premeditated or constructed it, and (3) the presence of circumstances, which in their totality suggest spontaneity and sincerity of the remark.

Id. at 776. Moises clearly experienced a “serious occurrence” when he witnessed Margot's murder and was driven directly home, in silence, by the man he witnessed commit the murder. According to Keila, once Moises arrived home, he ran up to her and appeared “very scared,” “excited, nervous, and cold,” “tired, very shocked, greenish,” and “very upset” when he told her what happened. Moises himself confirmed that he was “a little scared” and “nervous” at the time. Thus, the admissibility of Keila's testimony as to what Moises told her depends on the second and third excited utterance elements.

[18] [19] [20] [21] [22] With respect to the reasonableness of the interval between the underlying event and the later statements, “the time element is not controlling, [but] it is of great significance.” Alston v. United States, 462 A.2d 1122, 1127 (D.C.1983). When the declarant is a child “of such an age as to render it improbable that [his] utterance was deliberate and its effect premeditated,” his statements “need not be so nearly contemporaneous with the principal transaction as in the case of an older person, whose reflective powers are not presumed to be so easily affected or kept in abeyance.” Beausoliel v. United States, 71 App.D.C. 111, 114, 107 F.2d 292, 295 (1939). We have upheld the admissibility of statements as excited utterances even when they were made hours after the underlying event occurred. See, e.g., Williams v. United States, 859 A.2d 130, 140 (D.C.2004) (admitting utterance of two-year-old made “within a few hours” of event); Harris v. United States, 373 A.2d 590 (D.C.1977) (two-hour discrepancy). Additionally, if a statement is made upon the victim's first opportunity to disclose the events to a trusted individual it is more likely to qualify as an excited utterance. See Bryant v. United States, 859 A.2d 1093, 1107 (D.C.2004) (admitting statement made to officers at conclusion of six-hour ordeal since it was victim's first opportunity to tell anyone about events). Even if the victim's responses were to “preliminary investigative questions,” if they were made “while the declarant is still under the spell of the startling event,” the statements may qualify as excited utterances. *246 Reyes v. United States, 933 A.2d 785, 791 (D.C.2007) (admitting statements in response to officers' question of “what happened?”). The “decisive factor” in determining the admissibility of excited utterances is that “circumstances reasonably justify the conclusion that the remarks were not made under the impetus of reflection” or premeditation. Odemns, supra, 901 A.2d at 777.

Although there was a significant time gap of at least an hour and forty-five minutes between Margot's murder and Moises' statements to Keila, the statements were sufficiently spontaneous to qualify under the excited utterance exception. After four- year-old Moises witnessed the murder, he was driven straight back from the District to Baltimore by Melendez, the murderer, without stopping. Moises feared saying anything because he believed Melendez might kill him too. When he finally arrived home in Baltimore after a silent, uninterrupted car ride, Keila testified that he ran up to her and she asked him “Who are you with? Where's Margot?” Moises responded that Margot was “with Carlos” and that Keila should “call the doctor.” He then relayed what had happened earlier that day to Keila, who was interjecting her own questions with his statements in order to understand what he was saying and to calm him down. Under these circumstances, there is no indication that Moises' statements to Keila were made under the impetus of reflection. Moises endured hours of terror, ran up to the first trusted individual he encountered, and blurted out what happened. Although this took place well after the murder occurred, under these facts, we are satisfied that Moises' initial statements to Keila qualified as excited utterances, and we cannot find that the trial court abused its discretion by admitting Keila's testimony regarding those statements. Therefore, Melendez's appeal on this issue fails.

IV.

[23] Melendez next challenges the trial court's admission of Detective Bradshaw's testimony that on the day after the murder, Moises told him that “Carlos Melendez” was the one who harmed Margot. Assuming arguendo that Melendez did not waive this claim, we review this appeal for plain error since Melendez did not object to the admission of this statement at trial. See, e.g., Bacchus v. United States, 970 A.2d 269, 275 (D.C.2009). We will reverse only if Melendez can show “(1) error, (2) that is plain, (3) that the error affected [Melendez's] substantial rights, and (4) that the error seriously affected the fairness, integrity, or public reputation of the judicial proceeding, i.e., a showing of manifest injustice or a miscarriage of justice.” Id.

[24] [25] Under D.C.Code § 14–102(b)(3) (2001), “[a] statement is not hearsay if the declarant testifies at the trial ... and is subject to cross-examination concerning the statement and the statement is ... an identification of a person made after perceiving the person. Such prior statements are substantive evidence.” See also, e.g., (Larry) Brown v. United States, 840 A.2d 82, 88– 89 (D.C.2004). Here, Moises made the statement to Bradshaw identifying Melendez after perceiving him the day before, both during Margot's murder and during his ride back to Baltimore, and he was subject to cross-examination when he later testified at trial. The fact that by the time Moises himself testified he could not recall his conversation with Bradshaw does not render him “unavailable” for cross-examination and thereby preclude application of the prior identification exception. See United States v. Owens, 484 U.S. 554, 561–62, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988) (holding that a “witness' assertion of memory loss” does not *247 render him unavailable to cross-examination for the purposes of the prior identification exception); Blunt v. United States, 959 A.2d 721, 732 (D.C.2008). Similarly, the fact that Moises communicated to Bradshaw through an interpreter does not itself render his statements hearsay. See United States v. Lopez, 937 F.2d 716, 724 (2d Cir.1991) (noting that “[e]xcept in unusual circumstances, an interpreter is no more than a language conduit and therefore his translation does not create an additional level of hearsay”); accord United States v. Cordero, 18 F.3d 1248, 1252–53 (5th Cir.1994). Even if any error had occurred as a result of the admission of Bradshaw's testimony, Moises' own testimony identifying Melendez as Margot's killer, as well as his in-court and photographic identifications of Melendez, satisfy us that the error did not amount to plain error, and thus Melendez's claim on this issue fails.

Melendez also challenges the trial court's admission of the testimony of Detective Flores, who testified that she showed Moises a single photograph that included Melendez (among a larger group of people) and that Moises identified Melendez from that photograph. At trial, while Moises provided inconsistent testimony about whether he had met Melendez prior to the day of the murder, Keila testified that he “of course” had met Melendez before that day, and the trial court expressly credited her testimony on the issue. The trial court also viewed the entire photographic identification procedure between Moises and Flores

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Melendez v. U.S., 26 A.3d 234 (2011) on videotape and determined that Flores' testimony was admissible. Melendez claims that the single-photograph identification, as opposed to a photo-array identification, was unreliable and unduly suggestive.

[26] [27] Under the circumstances, we are confident that Moises' identification of Melendez from a single photograph was proper and that Flores' testimony regarding that identification was admissible. Our general two-step inquiry under Adams v. United States, 883 A.2d 76, 81 (D.C.2005), governing the admissibility of out-of-court photographic identifications is unnecessary where, as here, “there is no possibility of police suggestion or witness misidentification,” id., because “the person to whom the photograph is shown is an eyewitness to a crime who has already given police the name of the criminal—a relative, neighbor, or close acquaintance.” Green v. United States, 580 A.2d 1325, 1326 (D.C.1990). We have “routinely upheld the practice of showing a witness a single photograph of a personal acquaintance or of someone upon whom the witness had a full opportunity to focus during the commission of a crime.” Id. at 1327. Here, Moises was an eyewitness to the murder and had already given Bradshaw the name of Melendez, who was Moises' neighbor. Moises was both a personal acquaintance of Melendez and also had the opportunity to focus on Melendez before, during, and after Margot's murder, particularly during the presumably hour-long ride from the District to Baltimore. The trial court expressly credited Keila's testimony that Moises was familiar with Melendez prior to the day of the murder, holding that “[Keila's] testimony about the many times that ... Moises had seen Carlos come into contact with him” before the day of the murder “is more reliable testimony” than Moises'. Based on these facts, we are satisfied that the admission of Moises' out-of-court photographic identification of Melendez was not in error.

VI.

[28] Melendez's final two issues arise from the trial court's response to the inconsistent *248 verdicts with regard to the charge of second-degree murder. The jury both acquitted and convicted Melendez of that charge, finding him guilty of second- degree murder as the lesser-included offense of first-degree murder but not guilty of second-degree murder as the lesser-included offense of felony murder. Melendez asserts that even in the absence of any objection by his trial counsel, the trial court was under an obligation to act sua sponte to “clear up the confusion before recording the verdicts.” We disagree.

We addressed this precise situation in Fisher v. United States, 749 A.2d 710 (D.C.2000), in which the defendant was acquitted of second-degree murder as a lesser-included offense of first-degree premeditated murder but was convicted of second-degree murder as a lesser-included offense of first-degree felony murder. Relying on long-standing Supreme Court precedent, 2 we held in Fisher that a defendant “no more may argue that the acquittal of second-degree murder (rather than the conviction) was the one the jury ‘really meant’ than the government may argue the opposite.” Id. at 714 (citing Powell, supra, 469 U.S. at 68, 105 S.Ct. 471). Thus, “the course required of us is simply to insulate the jury's verdict from review on the ground of inconsistency.” Id. (citing Powell, supra, 469 U.S. at 69, 105 S.Ct. 471). Even were we to disagree with the reasoning of that opinion, we are constrained as a panel to follow its conclusion here and deny Melendez relief on this claim. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971).

Because under Fisher the trial court committed no error in its response to the inconsistent verdicts, Melendez's final claim —that his trial counsel was constitutionally deficient for failing to react to the inconsistent verdicts—is without merit. See Artis v. United States, 802 A.2d 959, 973 (D.C.2002) (holding that trial counsel was not ineffective in failing to take particular actions because there was “no legitimate basis” upon which to challenge that trial counsel's performance was “constitutionally deficient”).

VII.

For the foregoing reasons, all of Melendez's claims on appeal fail, and we affirm the trial court's decision.

Affirmed.

Footnotes 1 This “jail scam,” which is irrelevant to this appeal, involved an incident in which a handwritten note was confiscated from Melendez while he was in jail and returning from a social visit there with Ventura. The note described a plan by which another individual would be framed for Margot's murder. 2 United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984); Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932).

17 A.3d 628 District of Columbia Court of Appeals.

Damion M. JONES, Appellant, v. UNITED STATES, Appellee.

No. 08–CM–1409. | Submitted Oct. 12, 2010. | Decided April 21, 2011.

Synopsis Background: Defendant was convicted in a bench trial in the Superior Court, Wendell P. Gardner, Jr., J., of possession of phencyclidine (PCP). Defendant appealed.

Holdings: The Court of Appeals, Ruiz, J., held that:

[1] police officer's testimony was not admissible under state of mind exception to hearsay rule, and

[2] erroneous admission of testimony was not harmless error.

Reversed and remanded.

Attorneys and Law Firms

*630 James Klein, Corinne Beckwith and Richard Greenlee, Public Defender Service, were on the brief for appellant.

Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III and L. Jackson Thomas II, Assistant United States Attorneys, were on the brief for appellee.

Before RUIZ, KRAMER, and OBERLY, Associate Judges.

Opinion

RUIZ, Associate Judge:

Appellant, Damion M. Jones, appeals his conviction in Superior Court on one count of possession of phencyclidine (PCP). On appeal, he contends that the trial court erred in admitting prejudicial hearsay statements and in allowing the government to mischaracterize the evidence during its closing statement. We conclude that the trial court erred in admitting hearsay evidence, and that the error was not harmless; therefore, we reverse and remand for a new trial.

I. Facts

Appellant was charged by information with “unlawfully, knowingly, and intentionally posess[ing] a quantity of phencyclidine, that is, PCP, a controlled substance,” in violation of D.C.Code § 48–804.01(d) (2001). Appellant moved to suppress the PCP- laced cigarette that the government proposed to present at trial as proof that he possessed PCP.

At the suppression hearing, Metropolitan Police Department (MPD) Sergeant Anthony Guice testified that on January 11, 2008, he and Officer Charles Viggiani were canvassing the area for a burglary suspect when they came upon appellant and two other men standing in the mouth of an alley near 1736 Independence Avenue, Southeast. The men were oriented such that one man faced the officers approaching down the alley, while appellant and the third man had their backs to them. As the officers drew near, “there was a pause” in the men's conversation, and Sergeant Guice noticed appellant's hand “come down to his side and an object fall to the ground.” As the officers came closer, within about five feet of the men, Sergeant *631 Guice detected the odor of PCP. 1 He and Officer Viggiani then stopped the three men and ordered them to place their hands against a nearby fence. Sergeant Guice asked the man beside appellant to move his foot because “that was approximately where [he] had seen the object fall.” Underneath the man's foot, Sergeant Guice discovered a cigarette saturated with a chemical substance that was later shown to be PCP.

The trial court denied appellant's motion to suppress, and the parties agreed to incorporate the evidence presented at the suppression hearing into the bench trial. 2 At trial, the government called Officer Viggiani, who testified about the events that led to appellant's arrest. Officer Viggiani testified that as he and Sergeant Guice approached the three men, he was conversing with Sergeant Guice when he noticed Sergeant Guice get “a serious look on his face,” “like something was up.” When they were about three feet away from the men, Officer Viggiani “began to smell a strong chemical odor” that he recognized to be PCP. 3 Officer Viggiani testified that Sergeant Guice ordered the men to move against the fence, recovered the cigarette, handed it to Officer Viggiani, and remarked “This guy is locked up.” Over a defense objection, Officer Viggiani testified that Sergeant Guice told him that he had observed appellant “drop a cigarette to the ground with his right hand.” Officer Viggiani acknowledged that he never saw appellant drop any object.

The trial court found appellant guilty of possessing a PCP-laced cigarette. It sentenced appellant to 180 days incarceration, to run consecutively with any other sentences appellant may serve on other charges. Appellant filed this timely appeal on October 28, 2008.

II. Hearsay Testimony

[1] Appellant contends that the trial court erred in admitting the hearsay statement made by Sergeant Guice to Officer Viggiani, that he observed appellant drop a cigarette to the ground as they approached the men in the alley. The government responds that Officer Viggiani's testimony was admissible because the statement was not hearsay and that, in any event, its admission into evidence did not prejudice appellant.

[2] [3] [4] [5] We review the trial court's decision to admit or exclude evidence for abuse of discretion. See Goines v. United States, 905 A.2d 795, 799 (D.C.2006). However, because “the exercise of that discretion must be founded upon correct legal principles,” “it is an abuse of discretion if the trial judge rests his or her conclusions on incorrect legal standards.” Blackson v. United States, 979 A.2d 1, 6 (D.C.2009) (internal quotations and alterations omitted). Moreover, whether a statement satisfies a particular hearsay exception is a legal question that we review de novo. Id. We apply the Kotteakos harmless error standard in evaluating the impact of an erroneously admitted hearsay statement. See Odemns v. United States, 901 A.2d 770, 781 (D.C.2006); see also Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

*632 [6] [7] [8] [9] Hearsay is an out-of-court assertion of fact offered into evidence to prove the truth of the matter asserted. See Mercer v. United States, 864 A.2d 110, 117 (D.C.2004). Generally, hearsay evidence is inadmissible at trial because

[o]ut-of-court statements ... lack the conventional indicia of reliability: they are usually not made under oath or other circumstances that impress the speaker with the solemnity of his statements; the declarant's

word is not subject to cross-examination; and he is not available in order that his demeanor and credibility may be assessed by the jury.

Laumer v. United States, 409 A.2d 190, 194 (D.C.1979) (quoting Chambers v. Mississippi, 410 U.S. 284, 298, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)). Statements that are not offered at trial to prove the truth of the matter asserted are not hearsay. See Mercer, 864 A.2d at 118. Falling within this category are statements offered under the “state of mind” exception to the hearsay rule. This exception “permits the use of hearsay statements for the limited purpose of showing the state of mind of the declarant” if the declarant's state of mind is at issue in the trial. Evans–Reid v. District of Columbia, 930 A.2d 930, 944 (D.C.2007); see also Blackson, 979 A.2d at 9 (“[T]he state of mind exception to the hearsay rule allows the admission of extrajudicial statements to show the state of mind of the declarant ... if that is at issue in the case.” (quotation omitted)). The factfinder is not permitted, however, to consider these statements for their truth. See Evans–Reid, 930 A.2d at 944.

At trial, the prosecutor asked Officer Viggiani a series of questions about the events that led to appellant's arrest. One question focused on the actions of Sergeant Guice in stopping appellant and the two other men:

PROSECUTOR: Okay. Now as you—as you approached the individuals, the three individuals, you stated that the Sergeant —the Sergeant went up and asked them to step against the fence. Why did he do that?

OFFICER VIGGIANI: He informed me that he saw the defendant—

DEFENSE COUNSEL: Objection.

THE COURT: Overruled.

PROSECUTOR: Continue please.

OFFICER VIGGIANI: At that very time I did not know what he had at that exact moment.

PROSECUTOR: No, can you continue with your statement?

OFFICER VIGGIANI: Sure. He said that he observed the defendant drop a cigarette to the ground with his right hand.

Appellant contends that the trial court erred by admitting this testimony over his hearsay objection. Appellee argues that the court did not err because the statement—“He said that he observed the defendant drop a cigarette to the ground with his right hand”—was offered to show Sergeant Guice's state of mind at the time of the arrest, and not to prove that appellant dropped the cigarette.

First, to determine the admissibility of the hearsay statement under the state of mind exception, we must consider whether Sergeant Guice's state of mind was at issue in this case. See Blackson, 979 A.2d at 9. In Blackson, we held that the trial court did not abuse its discretion in excluding two hearsay statements because the state of mind of the declarants (the driver and a passenger of the vehicle from which shots were fired) were not at issue in the trial. Id. at 10. There, “the only dispute in th[e] case was whether [the defendant] shot at the [decedent's car] in self-defense or retaliation.” Id. at 9. We reasoned that *633 because it was undisputed that the defendant fired the shots, the case turned on his state of mind in doing so, and not on the state of mind of the driver or the other passenger of the car from which the defendant fired the weapon. Id. at 9–10. Because neither the driver's nor the other passenger's state of mind was relevant to that issue, we upheld the trial court's determination that their statements did not fit within the state of mind hearsay exception. Id. at 10.

Here, the government sought to prove at trial that appellant intentionally possessed—and then dropped when the officers neared —the cigarette soaked in PCP. Appellant's defense, conversely, focused on the possibility that appellant dropped an object that was not the cigarette, that it was the man under whose foot the cigarette was found who actually possessed the PCP, and that therefore appellant did not possess the PCP. The only contested material issue in the case was the possession of the PCP- laced cigarette, and, more specifically, whether appellant dropped that cigarette when the officers approached. Thus, although

Sergeant Guice's ability to perceive the object as he approached appellant was certainly a factor in the trial court's analysis of whether appellant possessed the cigarette, it is not apparent that Sergeant Guice's state of mind was relevant to his observation. In other words, although what Sergeant Guice witnessed was clearly at issue here, why Sergeant Guice approached the three men and asked them to move against the fence was not a contested issue at trial, after the suppression motion was denied. As in Blackson, because the officer's state of mind was not relevant to the question of appellant's guilt, the state of mind exception to the hearsay rule does not apply to permit Officer Viggiani's testimony about what Sergeant Guice told him. Id.; see Evans– Reid, 930 A.2d at 944.

Further, it is evident from the record that the prosecutor, at least once, used Officer Viggiani's testimony for the truth of the matter asserted—that Sergeant Guice “observed [appellant] drop a cigarette to the ground.” This was not accurate. During direct examination at the suppression hearing, Sergeant Guice stated that he “observed [appellant's] hand come down to his side and an object fall to the ground.” On cross-examination, Sergeant Guice elaborated:

DEFENSE COUNSEL: After you saw, you said you saw a cigarette fall to the ground, right?

SERGEANT GUICE: An object.

DEFENSE COUNSEL: An object? You weren't sure what it was.

SERGEANT GUICE: Correct.

Yet, in closing argument at trial, when discussing the lighting conditions in the alley, the prosecutor incorrectly said that Sergeant Guice had seen appellant drop a “cigarette” (not merely an “object” as Guice, in fact, had testified at the suppression hearing) and treated Officer Viggiani's trial testimony about what Sergeant Guice had told him as fact: “Both officers testified that it was well-lit enough in the alley for the—for Officer Guise [sic ] to observe [appellant] drop the cigarette to the ground, once he realized that officers were approaching.” The prosecutor's characterization of the evidence in this manner undercuts its argument on appeal that the statement was not hearsay.

[10] [11] [12] Moreover, procedurally, the court erred in evaluating appellant's objection. “The law is clear that the [prosecutor] and the trial court, not the ... appellant, had the legal responsibility to clarify the basis for admitting testimony, over objection, that otherwise was inadmissible hearsay.” In re Ty.B., 878 A.2d 1255, 1264–65 (D.C.2005) (quoting Patton v. *634 United States, 633 A.2d 800, 809 (D.C.1993) (per curiam)). Thus, as we have stated,

on proper objection it is clearly the burden of the party seeking its admission, to identify the appropriate exception and to demonstrate that the testimony fell within it. And it is the trial court's responsibility to examine the testimony and determine whether the proper foundation has been laid for the exercise of discretion as to its admission.

Odemns, 901 A.2d at 775–76 (quoting Patton, 633 A.2d at 809) (emphasis omitted). Here, however, appellant's objection was overruled without discussion or explanation as to why the court deemed the out of court statement admissible. Further, as in Odemns, “the government never identified a hearsay exception for the trial court to review.” Odemns, 901 A.2d at 776 (quotation and alteration omitted). We, therefore, conclude that the trial court erred in summarily overruling appellant's objection and in allowing the hearsay statement to be admitted into evidence.

[13] [14] Under the harmless error standard, reversal is not warranted if we determine, “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239. On the record before us, however, we simply cannot say with confidence that the court's judgment was not substantially swayed by the improperly admitted hearsay testimony. In making its findings, the court rather vaguely credited testimony that “[t]he man said he saw him drop it. He went to the spot where he dropped it, and when he went to that spot where he dropped it, this is what he got.” The court subsequently concluded, “Officer told us what he saw that it was, and I don't have any reason to disbelieve him.” Although it is not clear to which officer the court

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Jones v. U.S., 17 A.3d 628 (2011) was referring, only Officer Viggiani testified about what “it” was—that is, that Sergeant Guice told him that the dropped item was a cigarette. 4 We can fairly conclude, therefore, that the court relied on Officer Viggiani's hearsay testimony about what Sergeant Guice told him in adducing appellant's guilt. Because this testimony never should have been admitted into evidence, the judgment undoubtedly was substantially swayed by the error and “it is impossible to conclude that substantial rights were not affected.” Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239. Accordingly, we must reverse the trial court's judgment.

The judgment of the Superior Court of the District of Columbia is hereby reversed and remanded for a new trial. 5

So ordered.

Footnotes 1 Sergeant Guice recognized the odor of PCP from his experience on a vice unit and from two drug identification classes. 2 A second witness, Kimberly Ellington, an investigator for the Public Defender Service, also testified at the suppression hearing. Her testimony concentrated on the lighting and weather conditions in the alley on January 11, 2008. 3 Officer Viggiani was familiar with the odor of PCP from exposure to it in the field on four or five occasions. 4 Sergeant Guice was emphatic that he saw an “object” drop from appellant's hand. Categorizing the dropped item as an unidentified “object,” we think, is not quite telling the court “what ... it was.” 5 In light of our reversal based on the trial court's erroneous admission of, and reliance upon, hearsay evidence, we need not address appellant's argument that the trial court also failed to intervene sua sponte when the prosecutor misstated the evidence during closing arguments.

27 A.3d 127 District of Columbia Court of Appeals.

Martin A. BROWN, Appellant, v. UNITED STATES, Appellee.

No. 08–CF–693. | Argued Jan. 5, 2011. | Decided Sept. 1, 2011.

Synopsis Background: Defendant was convicted in the Superior Court, Frederick H. Weisberg, J., of second-degree murder. Defendant appealed.

Holdings: The Court of Appeals, Oberly, J., held that:

[1] victim's statements identifying defendant as his attacker were admissible under excited utterance exception to hearsay rule;

[2] victim's statements were nontestimonial for Confrontation Clause purposes; and

[3] evidence was sufficient for imposition of additional penalty for committing a crime when armed.

Affirmed.

Fisher, J., dissented and filed opinion.

Attorneys and Law Firms

*129 Alice Wang, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief, for appellant.

Peter S. Smith, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Roy W. McLeese III and Charles Cobb, Assistant United States Attorneys, were on the brief, for appellee.

Before FISHER, THOMPSON, and OBERLY, Associate Judges.

Opinion

OBERLY, Associate Judge:

A jury convicted appellant Martin “Tony” Brown of second-degree murder while armed, based largely on statements made by the victim, his grandfather. Appellant argues that (1) the trial court erred by admitting the victim's statements under the excited utterance exception to the hearsay rule, (2) admission of the statements violated his rights under the Confrontation Clause, and (3) there was insufficient evidence to prove that appellant was armed with a dangerous weapon. We hold that appellant's claims lack merit and affirm his conviction.

I. Factual Background

Appellant lived with his eighty-nine-year-old grandfather, Howard Brown, who was last seen uninjured in his home on December 7, 2006, sometime between noon and 1:00 p.m. At about 5:00 p.m. on that date, Brown was found lying on the floor in a “massive amount” of his own blood, with his head “busted open” (with three deep gashes), still bleeding from his open wounds, and with his “ear hanging off.” He had a telephone receiver in his hand. His initial sounds as he spoke to the first neighbors on the scene (Chris Irby and Malanda Mias) were only grunts. After the neighbors found Brown, the scene became “chaotic” and “frightening,” as one neighbor was “screaming pretty violently” and others were yelling hysterically, loud enough to be heard by the 911 operator and in the neighboring house. When neighbor Patricia Johnson, a nursing assistant, arrived on the scene she took Brown's pulse and, finding none, thought he was dead, but he then opened his eyes and she spoke to him, “trying to orient” him. Johnson testified that when she asked Brown how he was feeling, he said, *130 “I'm not doing so good,” and that when she asked Brown what had happened, he said he did not know. When she then asked him who had done this to him, Brown “responded with ‘Tony’ ” (appellant's nickname). Mias testified at trial that she, too, “asked [Brown] who did this to him,” and that he “sound [ed] like he was trying to catch his breath” and said “Tony.” Johnson kept talking to Brown to keep him focused and to prevent him from lapsing into unconsciousness. Asked whether Brown seemed dazed or in shock, Johnson answered that he appeared to be in shock.

Alan Trimble, a paramedic who arrived on the scene within five to ten minutes of the neighbors finding Brown, testified that the blood-drenched carpet in the house squished under his feet as he walked near Brown. Trimble testified that Brown was still bleeding at the time and was coming in and out of consciousness, and that, in the ambulance on the way to the hospital, Brown, who continued to bleed from his head, was “very emotional,” “obviously in pain,” and “in a lot of distress.” Neighbor Shirron Spivey testified at trial that she rode to the hospital in the front of the ambulance and that she heard one of the ambulance staff ask Brown “who did this” and he “told them Tony did it.” 1 The trauma surgeon who attended Brown at the hospital had to perform “urgent repair” to keep Brown, who still “had severe bleeding,” from “exsanguinating ... [i]n layman's terms, bleeding to death.” Later, when doctors, police, or family members asked him what happened, Brown said he did not know or “did not know him[.]”

Sometime after December 7, 2006, Spivey talked to appellant about visiting his grandfather in the hospital, and appellant told her, “I can't go see my grandfather. How do you think I would feel if he recognized me?” He added, “I'll go if you go with me.” In January 2007, appellant told Elsie Spivey, Shirron's sister, that he had killed the person who assaulted his grandfather, and he threatened to “duct tape [her] mouth” and “put [her] in the garage,” because she had been talking about appellant “doing this to his grandpa.” 2 The government also presented evidence that appellant may have believed (mistakenly, it seems) that he would inherit the house in which he and his grandfather lived upon his grandfather's death. On March 28, 2007, Brown died as a result of his injuries.

The court held a hearing prior to appellant's trial to determine whether statements made by the victim were admissible under the excited utterance or dying declaration exceptions to the rule against hearsay and ruled that the statements were admissible as excited utterances.

II. Legal Principles

[1] [2] “Whether a statement constitutes [an excited] utterance depends upon the particular facts of each case.” Smith v. United States, 666 A.2d 1216, 1222 (D.C.1995). Where, as here, the issue was preserved for appeal, our review focuses on the different aspects of the trial court's decision-fact—finding, application of the law, and exercise of discretion. See Dutch v. United States, 997 A.2d 685, 689 (D.C.2010) (“We review a trial court's decision to admit hearsay evidence for abuse of discretion; however, the determination of whether a statement falls under an exception *131 to the hearsay rule is a legal conclusion, which we

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Brown v. U.S., 27 A.3d 127 (2011) review de novo.”); Odemns v. United States, 901 A.2d 770, 776 (D.C.2006) (“the underlying factual findings are reviewed under the ‘clearly erroneous' standard and ... the decision whether to admit or exclude the proffered statement, based on those factual findings, is reviewed for abuse of discretion”). In determining whether the trial court abused its discretion, we consider “not only whether the judge erred in the ruling but also whether the error was of a magnitude requiring reversal.” Newman v. United States, 705 A.2d 246, 257 (D.C.1997) (citing (James) Johnson v. United States, 398 A.2d 354, 366–67 (D.C.1979)).

[3] Our precedents establish that for a statement to be admissible under the excited utterance exception, “it must be characterized as a spontaneous declaration, not only tending to explain the act or occurrence with which it is connected but also indicating a spontaneous utterance of a thought while under the influence of that act or occurrence, with no opportunity for premeditation or deliberation.” Watts v. Smith, 226 A.2d 160, 163 (D.C.1967); Harris v. United States, 373 A.2d 590, 593 (D.C.1977) (concluding that “the trial court did not err in finding that during the time decedent was in the emergency room he was substantially and predominantly under the influence of the trauma which had been inflicted upon him, and that the declarations which he made at the time ... do qualify as exceptions to the hearsay rule under spontaneous declarations” (quotation marks omitted)). We have said that for the excited utterance exception to apply, there must be “(1) the presence of a serious occurrence which causes a state of nervous excitement or physical shock in the declarant, (2) a declaration made within a reasonably short period of time after the occurrence so as to assure that the declarant has not reflected upon his statement or premeditated or constructed it, and (3) the presence of circumstances, which in their totality suggest spontaneity and sincerity of the remark.” Odemns, 901 A.2d at 776 (emphasis added).

III. Brown's Statements Were Properly Admitted as Excited Utterances

[4] The trial court found that the record showed “a serious occurrence which would cause anyone to be in a state of nervous excitement or physical shock”; that Brown was “barely conscious [and] bleeding profusely on the floor of his home” and that his breathing was “difficult”; and that “Brown was in a state of physical shock, if not also nervous excitement at 5:00 p.m. that afternoon.” The court also found that “in the totality of the circumstances, there [was] an indication of spontaneity and sincerity” in Brown's utterance, because he was “barely conscious” when his neighbors arrived, and because he was “still extremely seriously injured, and physically, if not mentally impaired at the time and [his neighbors] were the first persons to whom he had a chance to utter any words after the experience of the assault against him.” The court also found “very little in this record to suggest that [Brown] was in any position to do anything by way of premeditation, calculation, construction, or any other fabrication of a falsehood.” The court found it “important” that the “first persons [Brown] saw after being beaten, were the ones to whom he made the utterance immediately as soon as he was nudged into consciousness.” The testimony summarized above supports each of the court's factual findings, and the record also supports the trial court's legal conclusion that Brown's statements identifying “Tony” as his attacker were admissible as excited utterances.

*132 [5] There is no dispute that there was a serious and startling occurrence that caused Brown to sustain his injuries. There also should be no dispute that Brown, who was bleeding profusely, barely conscious, grunting, and needing to “catch his breath” at the time he uttered “Tony,” remained “under the influence of” that serious occurrence when he spoke to his neighbors and to the paramedic. See Watts, 226 A.2d at 163. The uncontroverted testimony that Brown “looked like he was in shock” when Johnson roused him (just before he responded to her “who did this” question by answering “Tony”), was “very emotional,” “obviously in pain,” and “in a lot of distress” when in the ambulance, and had nearly bled to death, establishes that the serious occurrence caused both “nervous excitement” and “physical shock in the declarant.” 3 Odemns, 901 A.2d at 776. To be sure, Trimble described Brown's demeanor in the ambulance, minutes after Brown made the utterance “Tony” to Johnson and to Mias while still lying on the floor. Although our dissenting colleague urges that “[o]ur focus must be on [Brown's] condition ‘at the time the statement was uttered’ ” (post at 138 n. 1, quoting Alston v. United States, 462 A.2d 1122, 1127 (D.C.1983)), there is no reason to think that Brown's demeanor was any different a few minutes earlier, and no reason why Alston precludes us from relying, in appropriate circumstances, on a description of a declarant's mental state moments after he spoke to draw inferences about the declarant's state of mind at the time he spoke. Especially in light of Johnson's testimony about Brown looking like he was in shock, it is reasonable to infer that Brown was rendered nervous and excited upon being nudged into consciousness and

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Brown v. U.S., 27 A.3d 127 (2011) oriented to his situation at the same time that his neighbors were screaming hysterically and as he recognized that he was “not doing so good.” Further, as noted above, Spivey testified that she heard Brown respond while in the ambulance that “Tony did it”—a response Brown gave at the time when, according to Trimble, he was highly emotional, in distress, and in pain.

[6] [7] The trial court recognized that an excited utterance must be made “within a reasonably short period of time after the occurrence so as to assure that the declarant has not reflected upon his statement or premeditated or constructed it,” Odemns, 901 A.2d at 776, but did not make a finding as to the approximate time when the attack occurred. 4 However, “the time element *133 is not controlling.” Alston, 462 A.2d at 1127; see also Snowden v. United States, 2 App.D.C. 89, 94 (D.C.Cir.1893) (“[N]o inflexible rule as to the length of interval between the act charged against the accused and the declaration of the complaining party, can be laid down as established.”). Further, an inference that the attack occurred closer to 5 p.m. (the time when Brown was found) than to noon (the last time he was seen before the attack) would not have been unreasonable. Notably, defense counsel urged the jury to conclude, from the facts that the carpet squished with blood when the paramedic walked on it and that Brown had not bled out despite his gaping wounds, that the attack occurred closer to 5 p.m. than to noon. Although the government could not discount the possibility that five hours passed between the attack and Brown's utterances, for the excited utterance exception to apply, the time between a startling event and an utterance need not be proven beyond a reasonable doubt or even by clear and convincing evidence. See United States v. Woodfolk, 656 A.2d 1145, 1150 n. 14 (D.C.1995) (noting that “preponderance of the evidence is the proper standard of proof for determining the admissibility of an excited utterance”).

[8] In any event, we have recognized that even where a startling occurrence happened hours before an utterance was made, the utterance may be admissible under the exception if it was made when an ensuing event made the speaker newly aware of the gravity of the occurrence. See Price v. United States, 545 A.2d 1219, 1226 (D.C.1988) (utterance was admissible even though it was made three hours after declarant witnessed a shooting, because it was made during a phone call in which declarant learned that her lover had been severely injured during the gunfire). The evidence supports our conclusion that Brown's having been nudged into consciousness while his neighbors were screaming hysterically, and his recognition at that time that he was not “doing so good,” constituted a startling event. His utterances followed that “event” 5 quite closely in time, without his having time for deliberation or fabrication, and, in light of his physical condition, without his having the capacity (as the trial court put it) “to do anything by way of premeditation, calculation, construction, or any other fabrication of a falsehood” before he responded to questioning. 6 Cf. People v. Robinson, 41 A.D.3d 1183, 837 N.Y.S.2d 800, 801 (2007) (reasoning that where victim made a statement when he was barely conscious and had difficulty breathing, the evidence established that his statement was “not made under the impetus of studied reflection” *134 ) (citation and quotation marks omitted); see also 2 MCCORMICK, EVIDENCE § 272 at 255 (6th ed.2006) (noting that the rationale for the excited utterance exception “lies in the special reliability that is furnished when excitement suspends the declarant's powers of reflection and fabrication”). However long Brown might have been conscious and able to deliberate after the attack and before he was found (which apparently was not long enough for him to use the telephone receiver that was in his hand to dial 911 or otherwise call for help), the evidence supports an inference that his utterances when his neighbors found him barely conscious would not likely have resulted from deliberation. 7 Cf. State v. Ward, 2001 WL 287472, at *8–9, 2001 Wash.App. LEXIS 485, at *23–24 (Wash.Ct.App. Mar. 26, 2001) (reasoning that even though evidence showed that victim had time to fabricate before he placed a 911 call and did actually lie to the 911 operator, his statement to police officer who arrived on the scene was admissible as an excited utterance, because by that time the victim had nearly bled to death, had no pulse, and was barely conscious, such that his statement to the officer “was unlikely to have resulted from the exercise of choice or judgment”).

[9] Finally, the trial court did not err by concluding that the circumstances in their totality suggested that Brown's utterances were spontaneous and sincere. The foregoing discussion explains why the utterances appear to have been spontaneous— meaning not “the result of reflective thought” and not “made under the impetus of reflection.” Simmons v. United States, 945 A.2d 1183, 1189 (D.C.2008). In addition, the trial court found—and the record supports a finding—that “all [Brown] said over and over” was “Tony.” Mindful of the preponderance-of-the-evidence standard that the trial court was required to apply and the “clearly erroneous” standard that applies to our review, we see no reason to disturb the trial court's conclusion that although Brown's utterance “Tony” might have been the “product of confusion” or might have indicated “who he wanted to contact,”

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Brown v. U.S., 27 A.3d 127 (2011) the “most likely interpretation” is that “he meant ... that Tony is the one who did it.” The dissenting opinion cites the evidence (from the portion of the trial transcript that discusses what could be heard on the tape of the 911 call) that, around the time when Brown uttered the word “Tony” in response to Johnson's question “who did this to you,” neighbors were asking, “Where's Tony?” and “hollering” up and down the stairs to see whether Tony was in the house. Post at 140. Our colleague concludes that this circumstance renders Brown's utterance “Tony” untrustworthy—as if what Brown did was parrot the name he heard called. Id. But Mias and Spivey, too, testified that they heard Brown answer “Tony” to the question “who did this?,” and there was no evidence that the name “Tony” was being spoken by others at the time when Brown made the utterances that Mias and Spivey heard. In addition, there was testimony that others' names were also spoken to Brown—Johnson testified that she said to Brown, “this is Pat, and Sherrin [sic] is here”—but no evidence was presented that Brown parroted those names.

[10] [11] Finally, we are not troubled by the inconsistent responses to inquiries about the identity of his assailant that Brown provided while in the hospital. For purposes of determining the admissibility of the utterances Brown made immediately *135 after he was discovered, we are not entitled to judge trustworthiness by comparing those utterances to other evidence. “We have held that [when determining whether statements fall within the excited utterance exception] the trial court should focus on the circumstances ascertainable upon utterance of the statement, not on other circumstances that might become known at trial or hearing.” Reyes v. United States, 933 A.2d 785, 790 n. 6 (D.C.2007) (emphasis added) (citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“hearsay evidence used to convict a defendant must possess the indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.... Thus, we must look to the statement itself and to the circumstances of its delivery for evidence of its inherent reliability.”)). 8 Therefore, for purposes of the analysis of the admissibility of Brown's utterance, the trial testimony by Brown's granddaughter—that when she visited Brown at various hospitals after the attack he told her that he did not know who had attacked him—is irrelevant. Nor is it relevant for purposes of the excited utterance analysis that, weeks after the attack, when asked by his doctor at the National Rehabilitation Hospital whether he “knew what had happened,” Brown said that “he did not know anything that happened.” 9 This evidence was, of course, grist for the defense at trial, but it does not render erroneous the trial court's decision to admit as excited utterances the first utterances Brown made when his neighbors found him bleeding and barely conscious. 10

IV. The Evidence that Appellant Was Armed with a Dangerous Weapon Was Sufficient

[12] [13] D.C.Code § 22–4502 imposes an additional penalty for committing a crime “when armed with or having readily available any ... dangerous or deadly weapon.” In the District of Columbia, “stationary objects” or “attached ... fixture[s]” that are “a pre-existing part of the surroundings” are not “weapons” within the meaning of the statute. Edwards v. United States, 583 A.2d 661, 664–68 (D.C.1990). Appellant argues that the government failed to introduce sufficient evidence that he was armed with “a dangerous weapon” because Brown's injuries “could have been caused by being repeatedly slammed against the stationary fixtures in his living room[.]”

[14] Viewed in the light most favorable to the government, 11 the evidence permitted *136 the jury to infer that the assailant used a dangerous weapon, that is, a detached object rather than an attached fixture, to cause Brown's injuries. Even though police did not recover the object itself, “the government may prove the existence of a weapon by adequate circumstantial evidence.” In re M.M.S., 691 A.2d 136, 138 (D.C.1997) (citing Paris v. United States, 515 A.2d 199, 204 (D.C.1986)).

In Edwards, the “government's theory of the case was that Edwards assaulted his wife by repeatedly slamming her head against the bathtub, sink, and toilet in the bathroom of their apartment.” 583 A.2d at 662. We accepted that theory as providing the factual basis for the conviction and concluded that the legislature had not intended the enhancement provision to cover such objects. Id. at 667–68. Here, by contrast, no one suggested that Brown's head had been rammed into a stationary object.

The medical examiner who conducted the autopsy testified that Brown had been “beaten about the head.” When asked whether “a hand was used or an object was used to cause” his injuries, she responded, “I don't believe it was a hand because of the skull

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Brown v. U.S., 27 A.3d 127 (2011) fracture.” One of Brown's neighbors, Irby, testified that it looked “like someone hit [Brown] with something.” The testimony and photographs admitted at trial also indicated that the blood on the walls, ceilings, and shelving in the decedent's home was blood spatter. Bearing in mind that the government “need not disprove every theory of innocence in order to sustain a conviction,” Olafisoye v. United States, 857 A.2d 1078, 1086 (D.C.2004) (quotation marks omitted), we think the jury reasonably could have inferred that Brown was assaulted with a detached object. See Paris, 515 A.2d at 203–04.

V. Conclusion

Because the trial court did not abuse its discretion by admitting Brown's statements as excited utterances, and appellant's other arguments are meritless, we affirm the judgment of conviction.

So ordered.

FISHER, Associate Judge, dissenting: “[T]he excited utterance exception is just that—an exception to the hearsay rule, and it should not be construed so broadly that it renders the hearsay rule ineffectual.” State v. Branch, 182 N.J. 338, 865 A.2d 673, 690 (2005) (emphasis in original). “Over the years, some of our cases have imported a measure of flexibility into the admissibility calculus of spontaneous exclamations and excited utterances, but the fundamentals of the doctrine have remained intact.” Odemns v. United States, 901 A.2d 770, 778 (D.C.2006). On this record, I conclude that Mr. Brown's utterances were neither spontaneous nor excited, and they should have been excluded.

I. Governing Principles

To satisfy the spontaneous (or excited) utterance exception, the proponent of the evidence must show:

(1) the presence of a serious occurrence which causes a state of nervous excitement or physical shock in the declarant, *137 (2) a declaration made within a reasonably short period of time after the occurrence so as to assure that the declarant has not reflected upon his statement or premeditated or constructed it, and (3) the presence of circumstances, which in their totality suggest spontaneity and sincerity of the remark.

In re L.L., 974 A.2d 859, 863 (D.C.2009) (quoting Odemns, 901 A.2d at 776). All “three factors ... must be established before a statement may be admitted” under the exception. Lewis v. United States, 938 A.2d 771, 775 (D.C.2007) (emphasis added); see Simmons v. United States, 945 A.2d 1183, 1187 (D.C.2008) (“the proponent of evidence offered as an excited utterance must show” three factors) (emphasis added).

This hearsay exception is premised on the theory that

under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, ... the utterance may be taken as particularly trustworthy[.]

6 WIGMORE, EVIDENCE § 1747 at 195 (Chadbourn Rev.1976); Guthrie v. United States, 92 U.S.App.D.C. 361, 364, 207 F.2d 19, 22 (1953) (same); Beausoliel v. United States, 71 App.D.C. 111, 113–14, 107 F.2d 292, 294–95 (1939) (same); see 2 MCCORMICK, EVIDENCE § 272 at 255 (6th ed.2006) (“rationale for the exception lies in the special reliability that is furnished when excitement suspends the declarant's powers of reflection and fabrication”); Odemns, 901 A.2d at 777 n.

6 (quoting United States v. Edmonds, 63 F.Supp. 968, 971 (D.D.C.1946)) (declarations “made while the spell endures are uncontrolled” and are “practically reflex actions”). Accordingly, we have observed that “the earmarks of an excited utterance [are] spontaneity, lack of reflection or forethought, [and] a reflexive response to a traumatic event[.]” Clarke v. United States, 943 A.2d 555, 558 (D.C.2008).

II. Mr. Brown's Statements Were Not Excited Utterances

A. Lack of Excitement

There is no doubt that this brutal assault was a “serious occurrence.” See generally Lyons v. United States, 683 A.2d 1080, 1083 (D.C.1996) (collecting cases). But that is not enough; as noted above, the first element of our test for admissibility has two parts. To satisfy this element, there must also be “evidence that the declarant was highly distraught and in shock at the time the statement was uttered....” Alston v. United States, 462 A.2d 1122, 1127 (D.C.1983); accord, (Damon) Smith v. United States, 26 A.3d 248, 258 (D.C.2011). Here, however, Mr. Brown did not exhibit a “state of nervous excitement as a result of the event.” (Raphael) Smith v. United States, 666 A.2d 1216, 1222 (D.C.1995).

None of Mr. Brown's neighbors described him as excited, stunned, surprised, or agitated when he said, “Tony.” 1 Indeed, *138 although this was probably his first opportunity to tell anyone what happened, Mr. Brown did not blurt out the name “Tony.” Instead, Ms. Johnson first asked Mr. Brown, “are you all right? You okay? How are you feeling?” In response, he told her “very plainly” that “I ain't doing so good.” 2 Once Ms. Johnson determined that someone had called an ambulance, she told Mr. Brown: “Just keep talking to me,” “[e]verything is going to be all right, and the ambulance is on [its] way[.]” Ms. Johnson also asked Mr. Brown, “what happened?” He replied, “I don't know.” Then she said, “Who did this to you?” At that point, “he responded with ‘Tony.’ ”

To be sure, our governing case law speaks of “a state of nervous excitement or physical shock,” and Ms. Johnson, a medical professional, stated that Mr. Brown “looked like he was in shock.” However, we have cautioned that the requirements of this hearsay exception “cannot be avoided by rote recitations that the declarant was upset or excited or afraid,” Odemns, 901 A.2d at 777, and the same may be said about uncritical use of the term “shock.” The “medical term ‘shock’ and the legal concept of an ‘excited utterance’ are not synonymous. The sheer fact that an individual may medically be in shock when he makes a statement does not demand that his statement be legally recognized as an ‘excited utterance.’ ” Marquez v. State, 890 P.2d 980, 984–85 (Okla.Crim.App.1995); see also Silver Seal Products Co. v. Owens, 523 P.2d 1091, 1096 (Okla.1974) (comparing general and medical definitions of shock and concluding that the “imprecise use of the term has brought confusion into our case law concerning res gestae statements”).

Shock, in the medical sense, means “a sudden disturbance of mental equilibrium” or “a condition of acute peripheral circulatory failure due to derangement of circulatory control or loss of circulating fluid. It is marked by hypotension [decreased blood pressure], coldness of the skin, usually tachycardia [feeble rapid pulse], and often anxiety.” DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1197 (26th ed.1981). Here, of course, the evidence showed that Mr. Brown had lost a massive amount of blood. Dr. Street, the trauma surgeon at the Washington Hospital Center, testified that Mr. Brown was “in shock, meaning he had low blood pressure”—not that he was shocked in the sense contemplated by the excited utterance exception.

B. Time to Reflect

The passage of time is equally, if not more, problematic. This “hearsay exception was ... intended to apply to situations in which the declarant was so excited by the precipitating event that he or she was still ‘under the spell of its effect.’ ” Odemns, 901 A.2d at 777 (quoting Edmonds, 63 F.Supp. at 971). Thus, while *139 “the time element is not controlling, it is of great

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Brown v. U.S., 27 A.3d 127 (2011) significance,” Alston, 462 A.2d at 1127, “because it assures that the declarant has not reflected or premeditated or constructed the statement [.]” Reyes, 933 A.2d at 790 (citing Alston, 462 A.2d at 1127). 3 As the time interval expands, on the other hand, the opportunity for reflection increases and the likelihood of spontaneity decreases.

Here, the government could not establish that the assault occurred fewer than five hours earlier. Thus, this case is “hardly [one] in which the out-of-court statement was made ‘immediately upon the hurt received’ ” or “so soon after the [serious occurrence] that the victim had no opportunity to reflect.” Odemns, 901 A.2d at 779 (internal quotation marks and citations omitted).

The majority responds to this problem by positing a different, more recent, startling event—when Mr. Brown was “nudged into consciousness,” saw Ms. Johnson staring into his eyes, and heard his neighbors screaming. This reasoning ignores the fact that, to be admissible under the excited utterance exception, the statement must relate to and illuminate the serious occurrence which caused the excitement. 4 Contrary to the majority's suggestion, it is not enough that “a later startling event may trigger associations with an original trauma....” Ante at 133 n. 5 (citation omitted). This court has “never held that the declarant's thinking about a traumatic event is sufficient to trigger an excited utterance.” In re L.L., 974 A.2d at 864 (emphasis in original).

A related, but important, problem is that we have no information about Mr. Brown's mental state from the time of the assault until he made the declarations. We do not know, for example, whether he was unconscious for most of the time, and the government did not present expert testimony about whether such serious injuries would necessarily suspend his capacity for reflection. See United States v. Kearney, 136 U.S.App.D.C. 328, 333 n. 11, 420 F.2d 170, 175 n. 11 (1969) (“[W]hat must be taken into account is not only the length of the intervening time period but also an assessment of the declarant's activities and attitudes in the meanwhile....”); 2 MCCORMICK, EVIDENCE § 272 at 258 (“[W]here the time interval between the event and the statement is long enough to permit reflective thought, the statement will [generally] be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process.”).

C. Lack of Spontaneity

Finally, the totality of circumstances does not suggest the spontaneity of the remarks. 5 Although the fact that Mr. *140 Brown's “statements ... were made in response to inquiry is not decisive, ... that fact is entitled to consideration.” Beausoliel, 71 App.D.C. at 114, 107 F.2d at 295; see 2 MCCORMICK, EVIDENCE § 272 at 258 (“Although not grounds for automatic exclusion, evidence that the statement was made in response to an inquiry ... is an indication that [it] was the result of reflective thought. Where the time interval permitted such thought, [these] factors might swing the balance in favor of exclusion.”). Moreover, Mr. Brown's response to the question, “who did this to you,” came after he answered other questions “very plainly.” When we factor into our analysis of the three elements the fact that someone asked about and yelled for “Tony” just before Mr. Brown first uttered that name, the overall “trustworthiness of the utterances was somewhat speculative and marginal, at best.” Alston, 462 A.2d at 1128 (quotation marks omitted).

The government now claims that “[e]ven if Mr. Brown had been conscious for up to five hours between the assault and his statement,” he still “lacked the ability to reflect during the time period, because [he] was undeniably in great pain.” This argument is based upon a crucial, but untested, assumption-that pain necessarily deprived Mr. Brown of “the ability to reflect during the time period....” I believe this is a matter to be established, not merely assumed.

Some of our precedents have emphasized that the victim was suffering from great pain at the time of the utterance, but they have treated pain as part of the totality of the circumstances, not as a substitute for more comprehensive analysis. In other words, there is no blanket rule for dealing with pain in this context. In some cases involving “external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control....” Beausoliel, 71 App.D.C. at 113, 107 F.2d at 294. On other occasions, grave and painful injuries may be severely debilitating and have a dulling effect upon the mind.

Two cases involving pain appear to help the government. In Harris v. United States, 373 A.2d 590, 593 (D.C.1977), we upheld the admission of a statement made in the emergency room approximately two hours after a shooting, emphasizing that “there was testimony that [the declarant] was in a great deal of pain, and that it was an effort for him to talk.” We held that the trial court had not erred in concluding that the victim “was substantially and predominantly under the influence of the trauma ...” when he spoke. Id.

Because of the brevity of discussion in Harris, it is difficult to meaningfully compare that case to ours. Among other things, the court thought it important that there “was little time or opportunity” for the declarant to reflect, as the police arrived “shortly [ ]after” the attack and the victim made the remarks within two hours. We concluded, in light of the circumstances, “that his statement was spontaneous.” 373 A.2d at 591, 593. The court also emphasized that the declarant “was supplying raw data for analysis rather than giving any conclusions or pointing a finger at any particular individual[,]” which helped “insure the reliability of the admitted statements.” Id. at 593 & n. 9 (citing Kearney, 136 U.S.App.D.C. at 333, 420 F.2d at 175). Mr. Brown's statements, by contrast, have been treated as an accusation.

*141 In Guthrie, 92 U.S.App.D.C. at 363–65, 207 F.2d at 21–23, the victim's statement was admitted although as many as eleven hours may have passed after the initial assault. In that case, the court focused on whether the statement “was made during a period of nervous stress and shock caused by physical violence....” Id. at 364, 207 F.2d at 22 (emphasis added). There was testimony that the victim was at times incoherent and “in a dazed or semi-conscious condition” and “appeared to be in great pain[.]” Id. at 365, 207 F.2d at 23. The victim herself “said she was in terrific pain and screamed as she was carried to an ambulance.” Id. at 363, 207 F.2d at 21.

Another case involving pain provides an instructive contrast to the present record. In United States v. Glenn, 154 U.S.App.D.C. 61, 63–65, 473 F.2d 191, 193–95 (1972), the declarant, who “made her statement only minutes after she was fatally stabbed[,]” was “moan[ing] or groan[ing] as though she were in pain[,]” “gasping for breath, and about to lapse into unconsciousness....” She “appeared as though she was trying to scream but could not get enough breath[,]” and repeated, “Help me. Help me. He did it.” Id. Another witness stated the declarant “was excited, appeared to be looking for help, and was gasping for breath.” Id. A doctor testified about when the stabbing probably occurred and “concluded that [she] was in pain from her wounds[.]” Id. The circuit court decided that “[h]er situation was not conducive to detached reflection and deliberation; on the contrary the only reasonable conclusion from the uncontradicted proof is that when she spoke she was in the grip of high excitement.” Id. at 65, 473 F.2d at 195. 6

Here, neither Mr. Brown's actions, nor his words, nor his tone of voice exhibited the stress of nervous excitement. There was ample time for reflection and no expert testified that Mr. Brown's injuries caused a level of pain that precluded deliberation. 7 The statement did not escape his lips as soon as he saw his neighbors. Nor was it even volunteered.

In sum, the trial court erred in admitting the statements as excited utterances. Because the decedent's statements “were the only direct evidence presented which identified appellant as the assailant, we cannot say that the admission [of these utterances] did not substantially sway the judgment of the jury in its deliberations.” Alston, 462 A.2d at 1129 (citing Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). I respectfully dissent.

Footnotes 1 Trimble confirmed that, in the ambulance, he asked Brown who had assaulted him and that Brown was able to speak, but Trimble could not remember what Brown said in response to the question. 2 Appellant was charged with threatening Elsie Spivey, but the jury was unable to reach a verdict on this count. 3 As to “nervous excitement,” although Johnson is a nursing assistant, nothing in the record suggests that she intended her comment about Brown looking like he was in shock in a medical sense. She made her statement “I guess you can say he looked like he was in shock” in answer to the inquiry, “He was dazed, right? He looked like he was in shock?” The context suggests that Johnson used

the term “shock” according to what the dissenting opinion considers the “general” definition: “sudden agitation or excitement of emotional or mental sensibilities.” WEBSTERS NEW INTL. DICT. 2317 (2d ed.1952). Contrary to the dissent's view, on this record we can scarcely call this an “uncritical use” or “rote recitation[ ]” of the word “shock.” Post at 138. Johnson, who testified that she felt no pulse in Brown's neck and thought he was dead, recounted that when he opened his eyes, he “scared the hell” out of her and that she had to “catch up with [her] heart” and get over her “initial shock” before she could speak to Brown. This does not prove that Brown felt the same emotions, but it is an additional factor supporting an inference, that he, too, would have been “scared” and in “shock” as he was nudged into consciousness, heard neighbors screaming, and witnessed Johnson's reaction. 4 The court recognized that the attack “might have been as recently as five minutes before the arrival of his neighbors. It might have been as early as around noon when he was seen uninjured by a witness. And it might have been anytime in between those two times.” 5 The dissent contends that Brown's utterances do not “relate to” this second startling event. Post at 139. But Brown uttered “Tony” in response to questioners nudging him back to consciousness as he lay in a pool of his own blood on his living room floor, and asking “who did this to him” as at least one of his neighbors was “screaming ... violently.” “The startling event or condition need not be the principal act underlying the case. For example, a later startling event may trigger associations with an original trauma, recreating the stress earlier produced and causing the person to exclaim spontaneously.” State v. DiBartolo, No. 17261–9–III, 2000 WL 968474, at *14, 2000 Wash.App. LEXIS 1195, at *41–42 (Wash.Ct.App. July 13, 2000) (citations and quotation marks omitted). That aptly describes the situation here. 6 Thus, we agree with the government's argument that “because of Mr. Brown's great pain, and because he had just been startled into consciousness by Ms. Johnson, ... he lacked the opportunity to reflect on his statement.” 7 Such an inference was well within the ken of the trial court, without the need for expert testimony or additional proof. 8 Cf. People v. Fratello, 92 N.Y.2d 565, 572, 684 N.Y.S.2d 149, 706 N.E.2d 1173 (N.Y.1998) (recognizing the analogous principle that “[g]enerally, the bias of an excited utterance declarant functions as a basis for impeachment of the declaration, thus pertinent to the weight, rather than admissibility of the declaration” (citing 6 Wigmore, Evidence § 1751 at 224 (Chadbourn Rev.1976))). 9 This latter evidence was not actually inconsistent with what Brown said to Johnson when he was found: He answered “I don't know” in response to the question “what happened?,” but responded with “Tony” when asked “Who did this to you?” 10 Appellant's argument that Brown's statements were testimonial (and therefore barred by the Confrontation Clause) is also without merit. Brown's statements were made to his neighbors (and not police), the setting was frantic and informal, he was severely injured, and the “statements and actions of both [Brown] and [his] interrogators” do not indicate that “a person in [Brown's] situation would have had a ‘primary purpose’ ‘to establish or prove past events potentially relevant to later criminal prosecution.’ ” Michigan v. Bryant, ––– U.S. ––––, 131 S.Ct. 1143, 1160, 1165, 179 L.Ed.2d 93 (2011) (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)). 11 Where a challenge to the sufficiency of the evidence has been preserved, we view the evidence “in the light most favorable to the government, giving full play to the right of the [fact-finder] to determine credibility, weigh the evidence, and draw justifiable inferences of fact, and making no distinction between direct and circumstantial evidence.” McCraney v. United States, 983 A.2d 1041, 1056 (D.C.2009) (quotation marks omitted); see also In re R.S., 6 A.3d 854, 859 (D.C.2010) (same). 1 Cf. Reyes v. United States, 933 A.2d 785, 790 (D.C.2007) (declarant, who had escaped a robbery/kidnaping minutes before making challenged statements, was “bleed[ing] profusely” and “very upset, highly agitated, scared” and “was rambling off several things at once in a very agitated tone of voice”); Price v. United States, 545 A.2d 1219, 1221 (D.C.1988) (“Sounding as if she was in tears, [declarant] blurted out [challenged statement] and kept repeating the words.”). The paramedic's trial testimony that Mr. Brown was “emotional,” “in pain,” and in “distress” in the ambulance described his mental state after he made the statements to his neighbors. Our focus must be on his condition “at the time the statement was uttered[,]” Alston, 462 A.2d at 1127, and the best evidence of that is the testimony of his neighbors-particularly Ms. Johnson. 2 Cf. Bryant v. United States, 859 A.2d 1093, 1100 (D.C.2004) ( “As soon as [declarant] made eye contact with [an officer, she] exclaimed that she had been kidnapped and raped. [The officer] described her as ‘crying, shaking, [and] very distraught[.]’ ”); Lewis, 938 A.2d at 773–74 (declarant was bleeding from “multiple lacerations” and “excited,” “crying,” “agitated,” and “very, very upset,” when officer saw her within minutes of assault; the “first thing she kept [repeating], even before [he] could [ask] if she needed help or not, [was] he was trying to kill me”). 3 See Jones v. United States, 829 A.2d 464, 469 (D.C.2003) ( “[The] hearsay exception for spontaneous exclamations applies where the ‘utterance is made under the immediate and uncontrolled domination of the senses,’ ” so it “may be taken as particularly trustworthy.”) (emphasis added) (quoting Beausoliel, 71 App.D.C. at 113–14, 107 F.2d at 294–95); (Raphael) Smith, 666 A.2d at 1223 (“The critical factor is that the declaration was made within a reasonably short period of time after the occurrence so as to assure that the declarant has not reflected upon his statement or premeditated or constructed it.”) (citations and internal quotation marks omitted).

4 See (Raphael) Smith, 666 A.2d at 1223 (trial court properly admitted statement to 911 operator as an excited utterance after determining that victim's “excited state was caused by the shock of being robbed at gunpoint,” rather than by discussing the robbery with his mother, who insisted that he call 911). 5 Cf. Simmons, 945 A.2d at 1189–90 (“totality of the circumstances reasonably suggests that the elderly declarant's remarks were ‘a spontaneous reaction to the exciting event, rather than the result of reflective thought’ ” where speaker was “agitated and distressed in the immediate aftermath [about fifteen minutes] of a shocking and frightening shooting, and he blurted out his concerns before the commotion subsided to a total stranger who had only asked him if he was ‘okay’ ”) (quoting Randolph v. United States, 882 A.2d 210, 217 (D.C.2005)). 6 Although there are additional ways of distinguishing our current case from Harris, Guthrie, and Glenn, I make no claim that all of our case law can be neatly harmonized. 7 See State v. Ruelas, 174 Ariz. 37, 846 P.2d 850, 852, 854–55 (App.1992) (victim's statement, made an hour and a half after fatal stabbing was not admissible where victim was “alert and awake, but appeared to be in considerable pain” and “was having some trouble breathing”; “There was no other evidence offered to show the mental state of the victim. Nothing in the record indicates that the victim was nervous, excited, or in shock.”).

27 A.3d 1130 District of Columbia Court of Appeals.

Ricardo JONES, Appellant, v. UNITED STATES, Appellee.

No. 08–CF–716. | Argued Nov. 23, 2010. | Decided Sept. 1, 2011.

Synopsis Background: Defendant was convicted following jury trial in the Superior Court, Herbert B. Dixon, Jr., J., of first-degree murder while armed and four related weapons charges. Defendant appealed.

Holdings: The Court of Appeals, Fisher, J., held that:

[1] Frye hearing regarding pattern matching was not necessary;

[2] trial court did not abuse its discretion by excluding photograph of bullet casings;

[3] prior bad act evidence of an uncharged armed robbery was admissible;

[4] trial court did not abuse its discretion by precluding questioning about investigator's relationship with older brother of defendant's alleged accessory; and

[5] trial court could limit cross-examination of police officer who photographed and took custody of firearms evidence regarding details of his conduct in committing sexual harassment.

Affirmed.

Farrell, Senior Judge, concurred and filed opinion, in which Fisher, J., joined.

Ruiz, J., dissented and filed opinion.

Attorneys and Law Firms

*1133 Thomas T. Heslep, Washington, DC, appointed by the court, for appellant.

Michael T. Ambrosino, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Roy W. McLeese III, John P. Mannarino, Matthew Cohen, and David Saybolt, Assistant United States Attorneys, were on the brief, for appellee.

Before FISHER, Associate Judge, RUIZ, * Associate Judge, Retired, and FARRELL, Senior Judge.

Opinion

FISHER, Associate Judge:

A jury convicted appellant Ricardo Jones of first-degree murder while armed and four weapons charges related to his shooting of David Valentine. He was also convicted of escape. Appellant primarily objects to the trial court's rulings admitting other crimes evidence and expert testimony on firearm and toolmark identification. He also argues that the trial court impermissibly restricted bias cross-examination of two government witnesses. Finding no reversible error on these or the other grounds raised, we affirm.

*1134 I. Factual Background

Around noon on July 6, 2005, Edward Davis and his friend David Valentine were walking in their neighborhood, on the 1200 block of Meigs Place, N.E., in the section of the city known as “Trinidad.” When they passed Joseph Leaks, a man Mr. Davis had seen in the area several times before, Davis said hello. Without warning, Mr. Leaks turned around and pulled out a handgun. Leaks apologized right away and explained that he “thought [they were] somebody else.” Davis and Valentine ignored the apology and continued up the street.

Shortly thereafter, Davis and Valentine walked back down the block. Davis noticed Leaks and appellant (whom Davis had never seen before) standing near Leaks's apartment building. Davis testified that, because Leaks had just brandished a pistol at him, he paid close attention to both men as he and Valentine neared them. According to Davis, Leaks was skinny, over six feet tall, had a shaved head, and wore glasses. On the other hand, Leaks's friend (appellant Jones) was approximately 5#8#, with a medium build, and a “strong face.”

When Davis and Valentine were about arm's reach away from Leaks and Jones, Leaks attempted to apologize again. Davis ignored Leaks's apology, but Valentine said he would not accept it and asserted, “that wasn't the last gun they made when you got yours.” Suddenly, Davis heard “something go bang.” Valentine grabbed his chest and said, “you going to shoot me[?] Your man pulled a pistol on me. You're going to shoot me?” Appellant Jones was the only person with a gun out and was “still pointing” it at Valentine as Valentine collapsed to the ground. Jones then stood over the victim and dared him to “say something else[.]” Davis later picked appellant's picture out of a photo array. He also identified appellant at trial.

Immediately after hearing the shot, Roderick Powell, who lived nearby, came outside. He saw a man in the street place a dark object into his waistband. Another man, whom Mr. Powell recognized as one of his neighbors (Leaks), then joined the person with the dark object, and they sped away in Leaks's gray station wagon.

After the shooting, Leaks and Jones went to North Carolina, and they often stayed with Amanda Ward in Reidsville, North Carolina. On August 5, 2005, Jones and Leaks robbed a Check Into Cash store in nearby Greensboro. They shot the security guard as soon as they entered the store, but the guard survived. Store manager Kim Geil testified that each robber carried a pistol and covered his face with black nylons and sunglasses. After collecting money, the men took the security guard's .38 caliber pistol and ran out of the store.

Police soon arrested appellant and Leaks. When Ms. Ward learned of the arrests, she checked her guest room and discovered a bag of live ammunition underneath the bed. Soon thereafter, she found in a vent two socks containing a .45–caliber pistol and a 9–millimeter pistol. (While searching Leaks's home on Meigs Place in July, police had recovered several 9–millimeter cartridges, but they found no .45 caliber ammunition.)

Appellant and Devone Hines occupied the same cell for several weeks. During that time, appellant told Mr. Hines that he had shot and killed a man with a .45–caliber pistol over the July 4th weekend in the District's Trinidad neighborhood. At trial, Hines recounted how appellant told him about the verbal exchange between Leaks and Valentine prior to the shooting and how appellant stood over the victim *1135 and said something to him afterwards. Appellant told Hines that he and Leaks later went to Greensboro, North Carolina, and robbed a check-cashing store. They shot the store's security guard and took his .38– caliber pistol. Appellant mentioned that he again used the .45–caliber pistol and Leaks was armed with a 9–millimeter pistol.

Because Jones was not certain he had wiped his fingerprints from the guns, he asked Hines to retrieve them from a vent in North Carolina once Hines was released.

Instead of proceeding to trial, on April 3, 2007, Leaks pleaded guilty to a five-count criminal information that charged escape, obstruction of justice, accessory after the fact to an assault with intent to kill while armed, possession of a firearm during a crime of violence, and second-degree child sexual abuse (for his sexual relationship with a fourteen-year-old girl). Leaks did not testify at Jones's trial.

II. Firearms and Toolmark Identification Evidence

A. Background

When Mobile Crime Technician Gerald Wills arrived at the 1200 block of Meigs Place, N.E., paramedics had already rushed Valentine to the hospital, where he later died of the gunshot wound to his chest. Mr. Wills recovered a .45–caliber shell casing and a copper-jacketed bullet from the murder scene. Crime scene investigators in North Carolina recovered a .45–caliber shell casing and bullet as well as a 9–millimeter casing and bullet from the Check Into Cash store.

Using the traditional method of pattern matching, two firearms experts examined this evidence. 1 Neal Morin compared the bullets and shell casings recovered from the North Carolina crime scene to bullets and casings test-fired from the pistols found in Ms. Ward's spare room. Mr. Morin testified that the .45–caliber shell casing and bullet were fired from the .45–caliber pistol he test-fired. His “level of certainty with respect to that conclusion” was 100% or “to the exclusion of all other firearms[.]” Defense counsel did not object to these questions, nor did he move to strike the answers.

Examiner Michael Mulderig used the same methodology and testified that the .45–caliber shell casing and bullet from the District of Columbia crime scene were fired from the same .45–caliber pistol recovered from Ward's home. Like Morin, Mulderig answered “yes” when the prosecutor inquired whether his conclusion regarding the match was “to the exclusion of all other firearms?” When the prosecutor asked Mulderig about his “level of certainty with respect to” his conclusion, defense counsel interjected: “Objection. Foundation.” Judge Dixon overruled the objection *1136 and Mulderig stated he was 100% certain about the match.

Defense counsel retained a firearms expert, who independently examined the same evidence. That expert did not testify at trial.

B. The Request for a Frye Hearing

Just prior to trial, in January of 2008, appellant's counsel orally requested leave to adopt a motion which former co-defendant Leaks had filed in September of 2006 seeking a pretrial hearing on the admissibility of firearms identification evidence. Judge Dixon allowed the defense to adopt, summarize, and argue the motion. Appellant's counsel urged the court to conduct a Frye hearing, 2 asserting that pattern matching “is not generally accepted within the scientific community.” Judge Dixon advised, “I'm familiar with that type of testimony, because we have heard it in other cases. What is the novelty of this issue[?]” Counsel argued that there is: a lack of “objective criteria by which a firearms examiner makes his conclusions”; “no peer review of their work”; “no proficiency testing”; and “no calculation of error rates [.]” By contrast, the prosecutor argued that pattern matching is the “generally accepted practice and, therefore, presumptively reliable.” Judge Dixon agreed that the evidence was “an accepted type of analysis that has been admitted in courtroom after courtroom[,]” and he did not “find any need to conduct any type of pretrial hearing on [its] admissibility[.]” Jones contends that the trial court erred in denying this request for a Frye hearing. 3

1. The Frye Standard

[1] [2] [3] In the District of Columbia, “before expert testimony about a new scientific principle [may] be admitted, the testing methodology must have become ‘sufficiently established to have gained general acceptance in the particular field in which it belongs.’ ” Williams v. District of Columbia, 558 A.2d 344, 346 (D.C.1989) (quoting Frye, 54 App.D.C. at 47, 293 F. at 1014). The “issue is consensus versus controversy over a particular technique, not its validity.” United States v. Jenkins, 887 A.2d 1013, 1022 (D.C.2005) (citing United States v. Porter, 618 A.2d 629, 633 (D.C.1992)). Moreover, general acceptance does not require unanimous approval. Porter, 618 A.2d at 634. Once a “technique has gained such general acceptance, we will accept it as presumptively reliable and thus generally admissible into evidence. The party opposing the evidence, of course, may challenge the weight the jury ought to give it.” Jones v. United States, 548 A.2d 35, 39 (D.C.1988). Although we do not doubt that a technique that has previously been recognized in court as generally accepted may lose that wide acceptance, we conclude that appellant has not shown that to be the case with respect to pattern matching as a way of identifying firearms. 4

*1137 2. Was a Frye Hearing Required?

[4] [5] Here, the trial court properly admitted the expert testimony without conducting a Frye hearing. Frye only applies to “a novel scientific test or a unique controversial methodology or technique.” Drevenak v. Abendschein, 773 A.2d 396, 418 (D.C.2001); see Cook v. Edgewood Mgmt. Corp., 825 A.2d 939, 950–51 (D.C.2003) (“Frye [ ] is inapplicable” and there is “no burden ‘to demonstrate ... [that the cobalt test] has been generally accepted in the relevant scientific community’ ” because testimony of two investigators “highlights the fact that the MPD had used the cobalt test for many years” and nothing suggested it was “a novel test,” or “new scientific technique,” or “unique controversial methodology [.]”) (quoting Porter, 618 A.2d at 633). Pattern matching is not new, and courts in this jurisdiction have long been admitting firearms identifications based on this method. 5 Even Leaks's motion conceded that “firearm and toolmark identification evidence has generally historically been accepted in various courts across the country.” Indeed, Leaks (and appellant) cited no case that had excluded such evidence.

Appellant attempts to avoid this problem by asserting that, had the trial court conducted a Frye hearing, the defense could have demonstrated that the challenged method “was no longer generally accepted in the scientific community.” This assertion is simply not true; comparison matching remains widely accepted and appellant misplaces his reliance upon a law review article 6 to suggest that pattern matching is no longer generally accepted within the relevant scientific community. Even the courts that have held pretrial hearings on the admissibility of firearms identification evidence, and considered the studies and articles cited by Jones on appeal (and Leaks below), 7 have not excluded this type of proof. Instead, the most these courts have done is to impose guidelines for the presentation of such evidence. 8

*1138 In sum, nothing presented to the trial court (or to us) suggests that the pattern matching methodology is no longer generally accepted, 9 and there was no need for Judge Dixon to expend scarce judicial resources on a Frye hearing. 10 See Jones, 548 A.2d at 40, 42 (“General acceptance means just that; the answer cannot vary from case to case.... [So in evaluating general acceptance,] judicial notice of court opinions and scientific literature is appropriate and, on occasion, even necessary.”).

C. The Experts' Expressions of Certainty

[6] Appellant asserts that the trial court should have at least precluded the experts from stating their conclusions with “absolute certainty excluding all other possible firearms.” The government does not *1139 directly concede the point, but instead represents that the current policy of the United States Attorney's Office “is to have firearms experts qualify their conclusions ‘to a reasonable degree of scientific certainty[.]’ ” In light of the government's representation and the growing consensus that

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Jones v. U.S., 27 A.3d 1130 (2011) firearms examiners should testify only to a reasonable degree of certainty, see note 8, supra, we will assume, without deciding, that such experts should not be permitted to testify that they are 100% certain of a match, to the exclusion of all other firearms. Nevertheless, we agree with the government that any such error was harmless in this case. See Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). 11

Defense counsel thoroughly cross-examined the experts about three topics: their level of certainty; the subjective nature of their conclusions; and the lack of demonstrative evidence from which the jurors could assess their conclusions. Counsel pointed out, for example, that Morin was willing to “conclude that a cartridge casing is matched to a particular gun to the exclusion of all other possible guns,” even though he had not examined all those other firearms. Defense counsel emphasized that Mulderig had rendered an “opinion of 100% certainty that [two casings were] fired from the same weapon[,]” although he acknowledged there were inconsistencies between them. Counsel also questioned Mulderig about how he could “tell with certainty” that various marks were “imparted to the case head by the gun” instead of during the manufacturing process.

Mulderig agreed that his conclusions were “all subjective [based] on what you see in the microscope” and concurred with defense counsel's assertion that “none of you [examiners] are scientists[.]” In a similar manner, Morin conceded that “the concept of sufficient agreement is purely a subjective one [.]” Morin agreed with the defense's observation that, in the firearms identification “field, there's no universal agreement as to how many features of similarity constitutes sufficient agreement[.]” Defense counsel also asked, “[W]hat is there about this science that the average juror could look at to determine whether or not your conclusions are accurate?” When Morin suggested “that the jurors go back to [his] microscope, [where he] would show them” the matching patterns, defense counsel pointed out that Morin “didn't bring [his] microscope” to court.

In his closing argument, Jones's counsel used the examiners' expressions of certainty to his advantage. Counsel asserted that, in light of the “completely and totally subjective” nature of examiners' conclusions and the fact that neither examiner provided the jury with a visual depiction of the “points of comparison where they found similarities[,]” “all [the jury] got” from the experts was a “trust me, this is the answer.” The defense suggested that, as a result, when the experts said, “I'm sure[, there's a match, h]undred percent [, t]ake it or leave it[,]” the jury should “leave it.”

In the face of this record, the jury's assessment of this evidence surely did not *1140 turn on the difference between a “100% certain” conclusion and a “reasonably certain” opinion. Defense counsel did not present an expert to explain the difference or to opine that the government examiners' confidence in their results was unjustifiably exaggerated. Nor did the defense put on an expert to point out any weaknesses in the methodology employed by the government experts. In fact, even though the trial court made it possible for the defense to conduct an independent test, it chose not to have an expert testify at all. See Roberts v. United States, 916 A.2d 922, 931 (D.C.2007) (“[W]hile ‘[n]o amount of attention to detail, auditing, and proficiency testing can completely eliminate the risk of error[,] ... the best protection an innocent suspect has from a false match is an independent test [.]’ ”) (quoting National Research Council, The Evaluation of Forensic DNA Evidence (1996)).

In sum, reversal is not warranted when the record is considered as a whole. An eyewitness to the murder identified appellant, who gave a detailed confession to a cellmate. Even if the government's experts had qualified their conclusions “to a reasonable degree of scientific certainty,” the strength of the government's case would not have been appreciably diminished. In these circumstances, “we can say, ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.’ ” Goines v. United States, 905 A.2d 795, 802 (D.C.2006) (quoting Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239).

D. Excluding a Photograph

When discussing the pattern matching process on cross-examination, Morin explained that experts “are looking for quality and quantity of detail that matches,” [that is,] “striated detail, which are lines, or [ ] impressed type detail, pot mark type detail, [or] circular detail.” Morin then described his laboratory's policy “not to take photographs of our examinations[,]” due to the fact

“that photographs are two-dimensional representations of what we are looking at, which is generally three-dimensional.” Under a microscope, experts can determine the depth and width of impressed details, which is “not easily reproduced in a photograph.” According to Morin, “based on [ ] training and experience,” experts are also able to “filter out some of the extraneous detail that is necessarily left by [ ] residue in the barrel[.]” For those reasons, “[a] photograph may lead somebody who is not trained in the examination of firearms to the wrong conclusion.”

By contrast, Mulderig had taken a photograph through his comparison microscope and defense counsel used it to question him about his exam techniques and conclusions. First, the defense got him to agree that, although “there's a pattern of striation marks[ ] on the primer, which you have determined to be consistent on both casings, ... [t]here are also marks on both the primer and the case head which do not appear to be consistent, right?” After Mulderig described the picture, 12 defense counsel questioned him about several specific differences between the two images depicted there. For example, counsel asked: “Now on the silver one it would appear that there's a firing pin impression on the very center of the primer? ... And there's a similar crater- looking firing pin impression on the gold sample—evidence *1141 sample, but it's to the right of the center of the primer, ... at about 3 o'clock?” Defense counsel questioned Mulderig about another mark at “9 o'clock, or maybe at 9:30,” on the gold sample which did not appear “at the same position on the silver shell casing[.]” The defense also inquired whether Mulderig agreed that “at 12 o'clock, on the base head of the gold cartridge case there's a remarkable blemish ... [and] there is no similar remarkable image at the same 12 o'clock position on the silver case head?”

Although Mulderig readily conceded these apparent differences in the markings on the two casings as depicted in the photo, he also explained that “a trained examiner doesn't come to any conclusions by looking at pictures. You have to look at the evidence.” He emphasized that, just because “[i]n the photo there is not” a similar mark on the two casings, that “doesn't mean it wasn't there under the microscope.... I'm looking at a microscope with very, very expensive equipment, called lenses, and a camera may not capture everything[.]” So when conducting an examination, he testified, “I don't rely on the photographs; I'm relying on my eyes, and my microscope[.]”

Subsequently, at a bench conference held so as not to put defense counsel “on the spot in front of the jury,” the trial court “confirm[ed that counsel was] not at a point to move th[e] exhibit into evidence.” Defense counsel agreed, but said, “I do intend to move it into evidence.” The prosecutor then noted that he planned to object, given the experts' testimony that a picture does not fairly and accurately capture everything an examiner sees under a microscope. The prosecutor mentioned this in advance, he explained, because Mulderig would not be available after the prosecution rested, and “so that [the defense] wouldn't be trying to [admit it] in the absence of a witness in the defense case.” Defense counsel responded: “That's fair. And I appreciate it. I'll try and lay the foundation for it right now.”

Counsel then asked Mulderig: “[G]iven th[e] caveat” that “you testified [about] previously that it may not depict certain marks that you can see with your eyes in the microscope [because] the camera hasn't picked [them] up,” is the photograph a “fair and accurate depiction of what you looked at through the microscope?” Mulderig answered: “For the most part, yes.” At no point during Mulderig's testimony did defense counsel seek to admit the photograph into evidence.

Later, Judge Dixon expressed the “tentative view [ ] that based on the witness's testimony” to that point, he would not admit the photograph because it “would be more confusing than it is probative.” Instead, the defense would “need some sort of expert testimony that the photograph” was actually “demonstrable of either the lack of a comparison, or of the comparison.” The court gave such notice “just so that if you need to make arrangements with your expert you can do so.” Counsel responded: “We do intend to do that, Your Honor.” Yet, despite having retained a firearms expert who had looked at the photograph, conducted an independent test-fire, and examined the evidence, the defense did not present testimony from him or any other expert.

When the defense sought to introduce the picture into evidence at the end of its case, Judge Dixon excluded it, “having viewed the photograph with respect to what the defense contends may be differences that the [ ] expert should have taken into con[sidera]tion, and based on the expert's testimony ... that no expert would use that type of photograph to make an *1142 analysis[,] and in the absence of any contrary evidence....”

1. Standard of Review

[7] “The admission of photographs is ‘within the sound discretion of the trial judge.’ ” Henderson v. United States, 527 A.2d 1262, 1264 (D.C.1987) (quoting Rich v. District of Columbia, 410 A.2d 528, 531 (D.C.1979)). This is because “the trial judge [ ] is in the best position to determine [the photograph's] relevance and accuracy.” Simms v. Dixon, 291 A.2d 184, 186 (D.C.1972); see also March v. United States, 362 A.2d 691, 704 (D.C.1976) (“the trial judge ... is in the best position to determine whether [the photographs] properly reflect the testimony or the circumstances sought to be depicted”) (brackets in original; internal quotation marks and citation omitted).

2. Analysis

[8] The test of admissibility “is whether the photograph [ ] accurately represent[s] the facts allegedly portrayed by [it].” Henderson, 527 A.2d at 1264 (quoting Simms, 291 A.2d at 186). Jones's attorney reasoned that Mulderig “explained why the[ differences] don't change his opinion about the identification, but it is relevant evidence, and the jury should be allowed to understand what he's talking about.” However, both experts testified that such two-dimensional depictions of what examiners observe three-dimensionally under a microscope do not accurately represent the “physical differences” in the markings on the casings. According to both experts, photographs can be misleading. Because of its inherent deficiencies, Mulderig never unequivocally stated that the photograph was a “fair and accurate depiction” of what an examiner would see through a microscope.

[9] [10] “Discretion signifies choice.” (James) Johnson, v. United States, 398 A.2d 354, 361 (D.C.1979). We do “not render [our] own decision of what judgment is most wise under the circumstances presented,” but instead recognize that “the decision- maker exercising discretion has the ability to choose from a range of permissible conclusions.” Id. at 361–62. Although another judge might have admitted the photograph, perhaps with a cautionary instruction, Judge Dixon did not act outside the range of permissible conclusions by excluding it.

[11] Moreover, we are not convinced that seeing the photograph would have affected the jury's verdict. See id. at 367 (a trial court has not abused its discretion unless “the exercise of discretion was in error and ... the impact of that error requires reversal”) (emphasis added). Testimony that the photograph depicted several readily observable differences in the casings was certainly before the jury. Moreover, defense counsel extensively and effectively cross-examined Mulderig about those dissimilar markings and made the jurors well aware that Mulderig had not provided them with a visual means to evaluate his conclusion. Regardless of whether Judge Dixon erred in excluding the picture, doing so did not cause Jones any “significant prejudice,” Stone v. Alexander, 6 A.3d 847, 851 (D.C.2010) (internal citation and quotation marks omitted), and reversal is not warranted.

III. “Other Crimes” Evidence

A. Applicable Legal Principles

[12] [13] “It is a principle of long standing in our law that evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged.” Drew v. United States, 118 U.S.App.D.C. 11, 15, 331 F.2d 85, 89 (1964) *1143 (emphasis in original). “Since the likelihood that juries will make such an improper inference is high, courts presume prejudice and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose.” Id. at 15–16, 331 F.2d at 89–90 (footnotes omitted; emphasis added). Importantly, “the presumption of prejudice that attends other crimes evidence” does not apply if (1) the evidence is “offered for a substantial,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Jones v. U.S., 27 A.3d 1130 (2011) legitimate purpose”; (2) the government demonstrates by clear and convincing evidence that the defendant committed the other crime; and (3) the legitimate probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Johnson v. United States, 683 A.2d 1087, 1092–93 (D.C.1996) (en banc).

[14] [15] [16] Valid, non-propensity purposes “includ[e], but [are] not limited to[,]” proof of identity, motive, intent, absence of mistake or accident, and common scheme or plan. Johnson, 683 A.2d at 1092. Moreover, the “Drew strictures” do not apply where evidence “(1) is direct and substantial proof of the charged crime, (2) is closely intertwined with the evidence of the charged crime, or (3) is necessary to place the charged crime in an understandable context.” Id. at 1098. We review the trial court's decision to admit evidence, including evidence of other crimes, for an abuse of discretion. Nellson v. United States, 989 A.2d 1122, 1126 (D.C.2010) (citing Artis v. United States, 505 A.2d 52, 56 (D.C.1986)).

B. Procedural Background

As explained above, firearms examiners determined that the .45–caliber pistol used in the Check Into Cash robbery in North Carolina (and later recovered from Ward's North Carolina apartment) had been used to murder Valentine in the District of Columbia. Testing also established that the 9–millimeter pistol recovered from Ward's apartment was the same 9–millimeter pistol used in the North Carolina robbery. Police also discovered, and store manager Geil identified, clothing that the robbers discarded behind the store. From that clothing, forensic analysts recovered DNA profiles matching Jones and Leaks.

Before trial, appellant and Leaks filed a motion to exclude evidence related to the North Carolina robbery. The government opposed the motion and, at a pretrial status hearing before Judge Satterfield, sought permission to show a two-minute surveillance video of the robbery and to introduce “the guns, the clothing, shell casings, bullets, as well as testimony from the [shooting] victim[.]” It argued that the North Carolina evidence was Drew identity evidence and would also “corroborate a key Government witness” (Hines) who heard “confessions by Ricardo Jones” to both crimes. According to the prosecutor, the forensic evidence from the Check Into Cash scene was also “direct proof” (Johnson evidence) that appellant shot Valentine.

Judge Satterfield agreed that the North Carolina evidence was admissible under Johnson and Drew. Consequently, he explained, “all I'm looking at right now is trying to sanitize the prejudicial impact, because I think it clearly has probative value.” The court first sought to minimize the prejudice by precluding the guard from testifying, so “the jurors [would not] see the [victim] and what that person went through by getting shot[.]” At the court's urging, the government proposed other ways of sanitizing the evidence, and the parties had lengthy discussions about possible stipulations that would affect the court's balancing of probative value and prejudicial impact. Because the defense concentrated on persuading the court to *1144 change its mind and entirely exclude evidence of the robbery, most of these discussions were fruitless.

Recognizing that the ballistics evidence would otherwise have little meaning, Judge Satterfield was inclined to let the government “establish that a gun was fired ... during the course of this robbery ... without establishing though that somebody was shot.” Nevertheless, the court's tentative tone and its numerous requests for the defense to agree to one of the government's proposed means of sanitization demonstrated that it had made no final decision on whether the government could establish that the guard was shot. 13

On April 3, 2007, Leaks pleaded guilty and on December 31, 2007, the case was transferred to Judge Dixon, who read the transcripts related to Judge Satterfield's ruling and discussed the “other crimes” issue with counsel at length. During one such discussion, defense counsel said he planned to “vigorously dispute” identification, including the DNA evidence. 14 “They can prove that the gun was used at both places, but they really are not going to be able to prove that it was Mr. Jones who was in both places ... using that gun.” In a subsequent colloquy, the defense added that it would attack Hines's credibility. 15

The government explained that the prejudicial impact of the evidence from North Carolina had already been significantly limited by the decision that the guard could not testify. It was important to admit details like the robbers shooting the guard and taking his .38–caliber pistol to corroborate both Jones's confession and Hines's testimony. The prosecutor emphasized that Hines's testimony was “already going to be significantly sanitized” because Jones had been charged in another assault with intent to kill case and had told Hines details about that crime as well, and the prosecutor had already instructed Hines not to discuss that matter. Therefore, “if we have got this witness who is not the most sophisticated person in the world, tip-toeing these off-limits issues[,] it is not fair to his presentation and demeanor.”

Judge Dixon recognized the importance of the jailhouse statement in which appellant said that he shot someone in both locations, had used the .45–caliber pistol on both occasions, and had stolen the guard's .38–caliber pistol. The court also knew that the defense planned to blame the *1145 North Carolina robbery and shooting on Mr. Leaks. Balancing the probative value of the evidence against its prejudicial effect, Judge Dixon ruled that the government could say there “was a nonfatal shooting” in North Carolina. He could not “see trying to sanitize both the North Carolina incident and the jailhouse statement without doing terrific prejudice to the evidence. I find that the probative value far outweighs the prejudice, because the whole purpose of the evidence is to prove [ ] identity[.]” Thereafter, Judge Dixon permitted store manager Geil to explain that the guard was shot and to narrate the surveillance video as it played.

C. Analysis

[17] To begin, we recognize that even when other crimes evidence is admitted for a valid purpose, it may be used in an improper manner. Nevertheless, we have found no instances in this record where the prosecutor either “explicitly or implicitly suggested ... that the other crimes evidence evinced a predisposition to commit the charged crime.” Johnson, 683 A.2d at 1093. To the contrary. Referring to the robbery in closing, the government asked rhetorically: “Why did you hear about [this?] Because it's powerful evidence of identification.”

Indeed it was. Evidence of the robbery undoubtedly was relevant to prove that Jones murdered Valentine. Although the murder weapon was not found in the District of Columbia, the police did recover a .45–caliber shell casing and a copper-jacketed bullet from the murder scene. That same pistol was used at the Check Into Cash robbery, and DNA evidence tied appellant Jones to that event. Moreover, Jones had stayed at the North Carolina home from which that pistol was recovered. See id. (approving admission under Drew identity exception of evidence that double homicide was committed with same gun used in murder at issue).

Identity was a hotly contested issue. Without the North Carolina evidence, the defense would have had freer rein to argue that Davis's identification of Jones was unreliable and uncorroborated. According to Davis, his neighbor Leaks did not shoot Valentine—the shorter man with the medium build beside him did. Geil's testimony about the robbery, the surveillance video, and the DNA evidence all were relevant to prove the identity of the shooter in the Valentine murder because they helped answer the question: Who was the shorter, heavier man with Leaks on Meigs Place?

Geil testified that the robbers carried a black bag (which appeared similar to the bag containing ammunition Ward found in her home), and that the taller of the two men wore a “stretchy, knit hat[ ]” and “dark blue work shirt[,]” while the “short, stockier one [wore] a lighter blue” work shirt. The black and white video also showed the bag, the clothing worn by the two robbers, and their relative sizes. 16 DNA evidence established that Jones and Leaks were the robbers and that the robber in the dark knit hat and dark blue shirt was Leaks. 17 Collectively, this evidence *1146 tended to prove that Jones was the shorter, stockier robber. And when considered along with the evidence that Jones and Leaks fled Meigs Place together and stayed together in North Carolina, it also made it more likely that Jones was the shorter, stockier shooter with Leaks on Meigs Place.

The North Carolina evidence had probative value not only as independent evidence of identity, but also because it corroborated other identity evidence. See Minick v. United States, 506 A.2d 1115, 1119 (D.C.1986) (parole papers and testimony concerning

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Jones v. U.S., 27 A.3d 1130 (2011) the papers admissible as evidence of appellant's identity; although parole papers implied the existence of a prior criminal record, “[t]he witnesses' specific reference to a detail like the parole papers added ‘narrative veracity’ to their testimony and reinforced their credibility to recall the events of the evening in question.”); cf. Strozier v. United States, 991 A.2d 778, 784 (D.C.2010) ( “Concerning probative value, the pictures may be admitted ‘so long as they were in some way relevant, either independently or as corroborative of other evidence.’ ”) (quoting Pittman v. United States, 375 A.2d 16, 19 (D.C.1977)). In particular, this evidence powerfully corroborated Jones's confession to Hines. Many courts have recognized that, while corroboration is not a classic example of a non-propensity purpose, 18 “evidence of other crimes or acts is admissible to corroborate evidence that itself has a legitimate non-propensity purpose.” United States v. Bowie, 344 U.S.App.D.C. 34, 44, 232 F.3d 923, 933 (2000) (collecting cases); see also United States v. Bailey, 355 U.S.App.D.C. 64, 70, 319 F.3d 514, 520 (2003) ( “[Other crimes] evidence might corroborate a witness's testimony by showing plan, purpose, intent, etc. and therefore be admissible[.]”).

In his confession to Hines, appellant described his role in both shootings. See Bowie, 344 U.S.App.D.C. at 44, 232 F.3d at 933 (“[Prior crimes evidence often has] ‘multiple utility.’ ... It not only tended to establish Bowie's intent and knowledge, but also corroborated Bowie's confession to the Secret Service.”). The fact that the North Carolina evidence corroborated the details of Jones's confession to his participation in the robbery suggests that Jones spoke with candor about his role in the murder as well. 19 For example, Jones told Hines that .45–caliber and 9–millimeter pistols were used in the robbery (they were); that a security guard was shot (he was); and that they stole the guard's .38–caliber pistol (they did).

The forensic evidence from the North Carolina robbery also was admissible as direct evidence of the Valentine murder because it helped to demonstrate that appellant possessed the murder weapon. See, e.g., Busey v. United States, 747 A.2d 1153, 1165 (D.C.2000) (“[T]estimony that *1147 [appellant] possessed a revolver that might have been the murder weapon was not admitted improperly to establish criminal propensity. That evidence was directly relevant, and was not Drew evidence, because it constituted evidence supporting the charge that [appellant] was the person who [committed the charged crimes].”). In this case, the trail of forensic evidence traveled from the Valentine murder scene, to the check cashing store, to Ward's residence. By leaving DNA and ballistics evidence at the robbery scene, and subsequently stashing the .45–caliber pistol at Ward's apartment, appellant made evidence of the robbery part of the “direct and substantial proof” that he possessed the murder weapon.

The defense's closing argument reinforces the importance of the direct and corroborating evidence from North Carolina. Counsel began by talking about Davis's identification of appellant and claimed, “[t]his is a one-witness case.” In addition to attacking Hines's credibility, the defense asserted in turn that Davis “lied to you[,]” Ward “is not being completely honest with you [,]” and Geil was “mistaken.” Jones's attorney ultimately suggested, “there's not a witness in existence that puts that .45 in [ ] Jones' hands in any time, at any place.... [Yet,] every time that gun is used, you know for a fact Joseph Leaks is there.”

[18] The final step in a Drew or Johnson analysis is evaluating whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Johnson, 683 A.2d at 1099; Busey, 747 A.2d at 1165. “ ‘Unfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Mercer v. United States, 724 A.2d 1176, 1184 (D.C.1999) (citing Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)).

[19] We recognize (as did the trial court) that admitting evidence of an uncharged armed robbery will have a prejudicial impact (especially if the robbery includes a shooting). But there was no unfair prejudice in this case because the evidence was admitted for a valid purpose. Moreover, the trial court diligently “control[led] the development and use of the evidence at trial.” Johnson, 683 A.2d at 1101. Judge Satterfield precluded the government from putting the guard on the stand. (In addition, the prosecutor elicited from Geil that the security guard had survived.) Judge Dixon engaged in several colloquies with counsel throughout trial about how to limit the evidence appropriately.

Further limiting the danger of misuse, the trial court gave detailed instructions during the testimony about the North Carolina robbery and during its final charge. Judge Dixon made it clear that the “evidence is only being put forth to you for th[e] purpose of identity[,]” and that the jury was “not to consider this evidence [ ] as to whether or not the defendant is of bad character”

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Jones v. U.S., 27 A.3d 1130 (2011) or “has a criminal personality.” During his final instructions, he cautioned, “if you find that the defendant participated in the North Carolina offenses, consider that evidence only for the limited purpose of deciding whether the Government has proved beyond a reasonable doubt the identity of the defendant as the person who committed the murder ... [and you] may not consider the evidence [ ] for any other purpose.... [Y]ou may not [use it] to conclude that the defendant has a bad character or [ ] a criminal personality.”

Judge Ruiz asserts that the government had enough evidence linking appellant to the .45 caliber handgun without admitting *1148 the video, details of the robbery, or the fact that the guard was shot. However, the discovery of the gun in Ward's apartment could be, and was, used to point the finger of blame at Leaks. Without corroboration, Hines's testimony would have been even more vulnerable to the attacks upon his credibility launched by Jones's counsel. And without proof of how the robbery took place (including that there were two gunmen of different sizes), the jury might have found more persuasive counsel's argument that the DNA evidence on the clothes failed to link appellant to the robbery and the gun.

As we recognized in Johnson, “in applying the reasonable doubt standard, [juries] may demand a showing of a very high probability of guilt, especially when one is accused of first-degree murder.” 683 A.2d at 1095 (“the murder of two innocent boys” committed with same weapon used in charged murder was “worse than deplorable,” but it was unlikely that the jury would reach “conclusions about [appellant's] proclivity for violence before it was satisfied that he was guilty of the charged crime”); see also Old Chief, 519 U.S. at 189, 117 S.Ct. 644 (a jury that hears “a story interrupted by gaps of abstraction may be puzzled at the missing chapters, and jurors asked to rest a momentous decision on the story's truth can feel put upon at being asked to take responsibility knowing that more could be said than they have heard”). Here, for good reason, the jury was allowed to hear evidence linking appellant to the murder on trial.

[20] In sum, this was relevant evidence admissible under both Drew and Johnson. The critical issue was determining whether its probative value was substantially outweighed by the danger of unfair prejudice. “ ‘[T]he evaluation and weighing of evidence for relevance and potential prejudice is quintessentially a discretionary function of the trial court, and we owe a great degree of deference to its decision.’ ” Mercer, 724 A.2d at 1185 (quoting Johnson, 683 A.2d at 1095). The trial court performed a careful and conscientious balancing here, and we find no abuse of discretion.

IV. Bias Cross–Examination

Jones complains that the trial court foreclosed presentation of a defense theory that the police investigation was biased by a past relationship between Detective A, who assisted in the Valentine murder investigation, and the older brother of former co-defendant Leaks. He also asserts that the court impermissibly limited bias cross-examination of Tom Saunders, a former detective from Reidsville, North Carolina. We are not persuaded by either claim.

A. Legal Principles

[21] [22] Although a “trial court's refusal to allow any questioning tending to elicit evidence of bias” denies a defendant his Sixth Amendment right to confront witnesses against him, Elliott v. United States, 633 A.2d 27, 32 (D.C.1993), it is well- established that this right “is not unlimited.” Coles v. United States, 808 A.2d 485, 489 (D.C.2002). Importantly, “a proper foundation must be laid” prior to pursuing “a line of questioning suggesting that a witness is biased.” Ray v. United States, 620 A.2d 860, 862 (D.C.1993). An adequate foundational “proffer is necessary to establish the relevance of a proposed inquiry by facts from which the trial court may surmise that the line of questioning is [in fact] probative of bias.” Melendez v. United States, 10 A.3d 147, 152 (D.C.2010).

B. Detective A

Prior to trial, the government disclosed that more than two decades previously, *1149 when she was a teenager, Detective A had had a relationship with Leaks's older brother, who was now dead. Although the defense was allowed to use this information in its investigation, the trial court cautioned that counsel could not refer to the matter “in open court” without prior approval. Neither Detective A nor Leaks testified at trial, so their credibility was not at issue.

Only once during trial did the defense attempt to show that favoritism had affected the investigation. During the testimony of the lead detective, defense counsel in essence asked why he had not arrested Leaks sooner. At the bench, counsel explained that he was “trying to develop the favoritism of the police investigation towards Mr. Leaks and against Mr. Jones.” He contended that the police “had plenty to get a warrant for ADW gun back in July, but because Detective [A] is involved in this case, [the detectives] chose not to[.]”

[23] Judge Dixon did not abuse his discretion by precluding questioning about A's long-past relationship with Leaks's older brother. In the first place, the defense did not demonstrate how the timing of Leaks's arrest was relevant to Jones's guilt or innocence. See McCraney v. United States, 983 A.2d 1041, 1054 (D.C.2009) (“A defendant ‘has no right to present irrelevant evidence.’ ”). Moreover, the lead detective testified that he had in fact applied for a warrant prior to Leaks's actual arrest, and the resulting proffers established that any delay in arrest was attributable to the prosecutor, not the police. Finally, it is entirely speculative to suggest that the relationship revealed to defense counsel would have biased the police investigation against appellant Jones. 20

The record belies any argument that the decision to charge Jones as the shooter and Leaks as an accessory is evidence of police bias. Before the lead detective or Detective A arrived on the murder scene, Davis had already told other detectives that the person he recognized from his neighborhood (Leaks) was not the actual shooter. When Davis identified Leaks during the subsequent photo identification procedure, Davis said Leaks was not “the person who actually did the shooting[,]” but the one who “pointed a firearm at [me] and Mr. Valentine initially[,] and then apologized for having done so, prior to the shooting.” In light of this record, the defense did not meet its “obligation to establish a prima facie basis for the alleged bias[,]” Melendez, 10 A.3d at 153, and the trial court did not abuse its discretion.

C. Mr. Saunders

Tom Saunders photographed and took custody of the firearms Amanda Ward had discovered in her spare bedroom. At trial, the prosecution elicited that Saunders' police department asked him to resign after an administrative investigation into allegations of sexual harassment that he initially denied but later acknowledged. (This happened approximately two years after he collected the evidence.) On cross-examination, Saunders reiterated that he falsely denied the allegations when first confronted with them and stated that he had submitted job applications to two police departments.

Appellant claims that the trial court erred by precluding the defense “from bringing out the nature of the underlying conduct, even though it was criminal and *1150 had not been prosecuted.” Notably, Judge Dixon stated that he would allow the defense to ask whether Saunders was charged with a criminal offense as a result of the sexual harassment (he was not), but counsel did not ask the question.

[24] [25] The details of a prior bad act ordinarily are irrelevant unless they “ ‘bear[ ] directly upon the veracity of the witness in respect to the issues involved [in] the trial.’ ” Grayton v. United States, 745 A.2d 274, 280 (D.C.2000) (quoting Sherer v. United States, 470 A.2d 732, 737–38 (D.C.1983)); see Murphy v. Bonanno, 663 A.2d 505, 508–09 (D.C.1995) (same). Here, the details of Saunders' conduct did not bear directly on his veracity, and Jones's attorney had much more powerful ammunition available to impeach his credibility—Saunders had admitted that he lied when accused of job-related misconduct. Moreover, Saunders

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Jones v. U.S., 27 A.3d 1130 (2011) hoped to be a police officer once again and perhaps believed, rightly or wrongly, that currying favor with the prosecution in this case would enhance his job prospects. Under these circumstances, there was no error, let alone reversible error, in limiting cross-examination.

V. Other Claims of Error

[26] The trial court declined to strike for cause a prospective juror who was an attorney in the Homicide Section of the United States Attorney's Office. “In this case, however, we need not decide whether the judge abused [his] discretion because [the] prospective juror[ ] whom appellant sought to strike for cause [did not] end[ ] up on the jury that actually heard the case”— defense counsel removed her “by peremptory challenge[.]” Johnson v. United States, 804 A.2d 297, 304 (D.C.2002) (citing United States v. Martinez–Salazar, 528 U.S. 304, 317, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) ( “[A] defendant's exercise of peremptory challenges ... is not denied or impaired when [he] chooses to use a peremptory challenge to remove a juror who should have been excused for cause[.]”)); see also Ahmed v. United States, 856 A.2d 560, 563–64 (D.C.2004).

[27] Jones also asserts that the trial court erred in denying his motion to suppress Davis's identifications of him as the shooter. We agree with the trial court's decision, “both for reasons that the identification is reliable and because there was nothing about the array that was suggestive in terms of the description and information given by the witness, Mr. Davis [.]” See Jones v. United States, 879 A.2d 970, 975 (D.C.2005) (quoting Smith v. United States, 777 A.2d 801, 805 (D.C.2001)).

While the photo array may have been less than ideal because two of the photos appeared darker than the others, it was in no way impermissibly suggestive. See Buergas v. United States, 686 A.2d 556, 558 (D.C.1996). In any event, Davis's identification was clearly reliable and thus properly admitted into evidence. See Black v. United States, 755 A.2d 1005, 1008 (D.C.2000) (articulating five factors to consider). Davis paid close attention to, and had an unobstructed view of, appellant's face while he neared appellant and Leaks and ultimately stood just an “arm's reach away” from them. Beyond those objective indicia of reliability, Davis repeatedly stated he would “never forget” the shooter's face and knew he “picked out the right person who shot my man[.]”

Finally, appellant claims that the trial court was obliged to grant his last-minute motion for a continuance so his attorney could locate Tamika Queen, a potential alibi witness. Counsel had relied upon appellant's family members to contact Queen, but she did not come to court that morning, the day that evidence closed. Counsel acknowledged that Gerald Kelly, *1151 who was present at trial, “can testify to the—the essence of the alibi....” In fact, Kelly did so.

[28] Given the “wide latitude” granted to trial courts in such matters, Moctar v. United States, 718 A.2d 1063, 1065 (D.C.1998), we discern no abuse of discretion. Although counsel had announced at the outset of trial that Queen was a potential defense witness, he had not served her with a subpoena, despite a week-long mid-trial break. See Price v. United States, 545 A.2d 1219, 1228 (D.C.1988) (no abuse of discretion in denying continuance where, among other factors, defense had not subpoenaed the witness); Moctar, 718 A.2d at 1066 (same). Moreover, Queen's testimony would have been cumulative of Kelly's, and several other people supposedly had attended the birthday party which served as an alibi. Thus, appellant has not shown that the continuance was “reasonably necessary for a just determination of the cause.” Bedney v. United States, 684 A.2d 759, 766 (D.C.1996) (internal quotation marks and citation omitted).

For the reasons discussed, the judgments of conviction are

Affirmed.

FARRELL, Senior Judge, with whom Judge FISHER joins, concurring:

I join Judge Fisher's opinion entirely, and write only to point out that appellant turned aside repeated opportunities before trial to limit the prejudice he now claims resulted from the jury learning that he or his confederate had shot the security guard during the North Carolina store robbery.

Preliminarily, the fact that appellant, either himself or jointly as an aider and abettor, used a gun to commit the North Carolina robbery that was the same weapon used to kill David Valentine a month earlier was undeniably probative evidence of his identity as Valentine's killer. The trial judge, in other words, was not compelled to rule that the circumstantial evidence appellant cites —the DNA on the clothing outside the store, and finding the murder weapon in the vent in Ward's North Carolina apartment —was an adequate substitute for evidence that placed the murder weapon in appellant's hand not long after the crime.

Nevertheless, the issue of whether the prosecutor needed to present evidence, either by testimony or via the store surveillance videotape, that appellant or Leaks had fired the gun or shot the security guard was the subject of repeated in limine discussions between Judge (now Chief Judge) Satterfield and the parties before the case was transferred to Judge Dixon for trial. From the beginning Judge Satterfield had been concerned to know how, if possible, the jury could be made to know that the gun had been used to carry out the North Carolina robbery but without learning that the gun had been fired, or at least that the store guard had been shot. He repeatedly ordered the attorneys to look for ways to “sanitize the prejudicial impact” of both a testimonial and video depiction of the robbery. In response, the prosecutor proposed, in writing, several alternatives including one that would have an eyewitness other than the security guard testify “that two armed bandits entered the premises shooting, but without eliciting that the victim was shot.” And the prosecutor brought to court still-photographs from the surveillance video that purported to “show the two perpetrators committing the robbery, but do not show the victim being fired upon and struck.” Yet, in response to Judge Satterfield's urging him to “[s]tart looking at the [proposed] alternatives,” appellant's counsel rejected all of them because each “talks *1152 about a robbery,” when the defense's position was that “all evidence of the robbery is inadmissible” so that there was “no need to try to sanitize.”

This notwithstanding, Judge Satterfield went another mile by inquiring whether the government's need “to really put those guns in the defendant's hands” in North Carolina could not be met by a stipulation that appellant had actually possessed the gun found in the vent in Ward's apartment. The prosecutor replied that he would want to “see the actual stipulation” to be sure it contained an admission that “those weapons were brought to North Carolina ... and put in that air vent by [appellant and Leaks] personally.” But there the matter was left, because when the prosecutor at the next proceeding (the case having since been transferred to Judge Dixon) referred to Judge Satterfield's suggested stipulation that Jones had “had the gun and ... put it in the air vent,” defense counsel was silent on the issue. Counsel did later propose, for the first time, that the shooting evidence could be limited to the fact “that the .45 was fired in the store” but not that “the firing took effect on another person,” but he combined this with an insistence that “the fact that Mr. Jones confesses [to Devone Hines] to having shot the security guard” should also be excluded.

Judge Dixon ultimately allowed both videotape and testimonial evidence describing the North Carolina shooting, and it would overstate the evidence to say that his ruling was influenced by appellant's previous rejection of “sanitizing” measures short of exclusion. The fact remains, though, that Judge Satterfield, in weighing the in limine matter of admissibility, invited appellant to propose or join in alternatives that could have significantly lessened the prejudice he now insists denied him a fair trial. Indeed, the judge focused on and invited suggestions for avoiding the very prejudice appellant cites on appeal. See Reply Br. for App. at 8 (“the shooting evidence, not the robbery evidence, was more prejudicial than probative”). Since Judge Satterfield was not obliged to impose any of these alternatives sua sponte (much less to exclude the armed robbery evidence altogether), there is an element of self-inflicted pain in appellant's present complaint of prejudice, when he rejected the chance to shape the manner in which the proof was put before the jury.

To this Judge Ruiz replies mainly that it is not Judge Satterfield's action but Judge Dixon's “ruling that is challenged on appeal” (post at 1157) and that, in any case, it was the trial judge's responsibility, not the parties', “to control the admission of evidence and carefully balance its probative value and prejudicial effect” (post at 1157). But while both points are strictly

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 Jones v. U.S., 27 A.3d 1130 (2011) correct, when viewed in the context of a case where appellant's help was actively sought to avoid unfair prejudice, they reduce to a sideshow key in limine hearings of the kind Judge Satterfield conducted.

RUIZ, Associate Judge, dissenting: I cannot agree with the court's conclusion in Part III of the majority opinion that it was proper for the court to permit the government to introduce evidence of a different crime to the extent that was permitted in this trial. I believe that the trial court abused its discretion in admitting testimonial and visual evidence—detailed and highly prejudicial—of a totally unrelated armed robbery and shooting in North Carolina to prove the identity of the man who committed the charged murder in the District of Columbia through his possession, a month later, of the murder weapon. Because the danger of unfair prejudice posed by the admission of that evidence—in particular, the video of the *1153 Check Into Cash armed robbery showing the shooting of a security guard—substantially outweighed its negligible probative value, the court erred in allowing the jury to consider it. I cannot conclude that the error was harmless and, therefore, I believe we should reverse appellant's convictions and remand for a new trial free of the taint of inadmissible prejudicial evidence of an unrelated, violent crime.

The majority reasons that evidence of the armed robbery and shooting in North Carolina was admissible (1) as an exception to the prohibition against the admission of other crimes evidence, to prove appellant's identity as the shooter in the District of Columbia by tying him to the weapon used in both crimes; (2) as direct evidence of the murder, to show that appellant had access to the murder weapon; and (3) to corroborate the testimony of appellant's cellmate, who said that appellant had confessed to the murder in the District and the armed robbery and shooting in North Carolina. For the reasons I discuss, I conclude that the evidence was either not probative on these points or, even if it had some relevance in making those points, the prejudice from the nature and extent of the evidence of the armed robbery and shooting in North Carolina that was presented to the jury substantially outweighed its probative value and cannot be said to have been harmless in the context of this trial.

I. Other Crimes Evidence

“It is a principle of long standing in our law that evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged.” Drew v. United States, 118 U.S.App.D.C. 11, 15, 331 F.2d 85, 89 (1964) (emphasis omitted). “Since the likelihood that juries will make such an improper inference is high, courts presume prejudice and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose.” Busey v. United States, 747 A.2d 1153, 1164 (D.C.2000) (quoting Drew, 118 U.S.App.D.C. at 15–16, 331 F.2d at 89–90) (emphasis added); see also Green v. United States, 440 A.2d 1005, 1006 (D.C.1982) (“It is well established that evidence of other crimes is inadmissible except for specified, limited purposes.”); Willcher v. United States, 408 A.2d 67, 75 (D.C.1979) ( “[U]nless the evidence of prior ‘bad acts' is introduced for a legitimate purpose, its probative value is presumed to be outweighed by the prejudicial effect.”). It is the government's burden to identify a legitimate purpose for introducing evidence of unrelated crimes. See Johnson v. United States, 683 A.2d 1087, 1101 (D.C.1996) (en banc) (“[W]hen evidence is correctly analyzed as coming within Drew's purview, ‘the prosecutor has the burden of showing that the evidence falls within one or more of the recognized exceptions.’ ” (quoting Thompson v. United States, 546 A.2d 414, 424 n. 18 (D.C.1988))). Even if the evidence is offered for a legitimate purpose, the trial court must always weigh the probative value of the evidence against the danger of unfair prejudice, and determine that “its probative value is not substantially outweighed by the danger of unfair prejudice to the defendant.” Id. at 1101 (quoting United States v. Conners, 825 F.2d 1384, 1390 (9th Cir.1987)). We have an “exclusionary” view of other crimes evidence, whereby the government bears the burden of showing that the evidence it seeks to admit falls within a recognized exception to our general prohibition. See Wilson v. United States, 690 A.2d 468, 471 n. 2 (D.C.1997) (citing Thompson, 546 A.2d at 424 n. 18). 1

*1154 The majority's analysis, however, begins from the opposite view, suggesting that other crimes evidence is prohibited only where the prosecutor uses such evidence in an improper manner. But that conceptualization misapprehends the reason for our wariness to admit other crimes evidence by shifting the analysis from the impact of the evidence on the jury, where the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 Jones v. U.S., 27 A.3d 1130 (2011) emphasis properly lies, to the intent of the government in offering the evidence. Cf. Drew, 118 U.S.App.D.C. at 15, 331 F.2d at 89 (“[E]vidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged.” (emphasis added)). As our cases throughout the years bear out, other crimes evidence may be unfairly prejudicial even where the prosecutor did not intend to use it to show a predisposition to commit a crime. See, e.g., Koonce v. United States, 993 A.2d 544, 556–57 (D.C.2010) (finding evidence of past misdeeds improperly admitted where the government sought to admit evidence not to show predisposition, but simply as a “ ‘starting point’ for eliciting testimony from ... a difficult witness”); Rindgo v. United States, 411 A.2d 373, 377 (D.C.1980) (finding evidence prejudicial where the government sought to “provide relevant background information” about appellant's relationship with a testifying eyewitness). It is for that reason that in this case there is presumptive prejudice stemming from the admission of evidence of the North Carolina armed robbery and shooting of a security guard. See Busey, 747 A.2d at 1164. As a result, it was the government's burden to demonstrate that the other crimes evidence it wished to present was not unfairly prejudicial. It did not meet that burden.

Given our lenient test for relevancy, 2 some of the evidence of the armed robbery and shooting in North Carolina was relevant to the identification of appellant as the assailant in the murder in the District of Columbia because it tended to establish appellant's identity because he possessed the murder weapon a month after the murder. Yet, not all relevant evidence is, or should be, admissible at trial. It is left to the trial court to filter what evidence should be permitted for the government to meet its burden and what evidence should be excluded as cumulative, prejudicial, or otherwise unsuitable for the jury's consideration. Cf. Rodriguez v. United States, 915 A.2d 380, 385 (D.C.2007) (“A trial judge has ‘broad discretion to determine the substance, form, and quantum of evidence which is to be presented to a jury.’ ” (quoting Johnson v. United States, 452 A.2d 959, 960 (D.C.1982))). Here, some evidence related to appellant's possession of the murder weapon, a month later, which was used in committing a crime in another state, was properly admissible under Drew to show appellant's identity. However, I believe that the trial court abused its discretion in allowing the government to present cumulative and unneeded—and highly prejudicial—evidence of appellant's participation in the armed robbery and shooting of the security guard in North Carolina.

In this case there were several colloquies about the purposes for which such evidence could be introduced. During the pre-trial phase, the prosecutor represented *1155 to Judge Satterfield that without the evidence of the North Carolina armed robbery and shooting evidence tying appellant to the firearm, “all we have is the testimony of eyewitnesses that place [appellant and his co-perpetrator, Leaks] in the area where the gun was recovered. We don't have the guns in their hands. And we don't have forensic evidence, which is incredibly powerful.” The prosecutor also informed the court that the evidence of the North Carolina robbery and shooting would “bolster[ ] and corroborate[ ]” the testimony of Hines, who said appellant had confessed to him about both the District and North Carolina crimes. Based on these representations, and sensitive to the prejudice that would result if the jury were informed that a person had been shot, Judge Satterfield stated that he would not allow the victim of the North Carolina shooting to testify, and ruled “that the government would be permitted to establish that a gun was fired ... without establishing though that somebody was shot.” 3 He emphasized, however, that his determination could change (presumably, to exclude testimony about the North Carolina crime altogether) depending on whether the parties could agree to a stipulation “that connects those guns to the defendant.”

Contrary to the government's argument that “we don't have forensic evidence,” the government did, however, have compelling forensic evidence that “connected” appellant to the gun found in North Carolina, which in turn was matched to the weapon used in the murder in the District: an expert would testify that ballistics testing confirmed that one of the guns used in the North Carolina armed robbery and shooting was the weapon used in the D.C. murder, to the exclusion of any other weapon. Thus the identity of the weapon recovered in North Carolina and the murder weapon used in the District of Columbia was established by forensic evidence. The government then needed to link appellant to the weapon seized in North Carolina. That link was provided by three different pieces of evidence, each of which corroborated the other: (1) Ward, an online friend of appellant with whom appellant and Leaks had stayed in North Carolina, testified that two guns were recovered from the air vent of the room where they had been staying under false names. It was those guns that were test-fired, and one of which (a .45), expert testimony would establish, matched the weapon used in the armed robbery shooting in North Carolina and *1156 the murder in D.C. (2) Appellant's cellmate Hines would testify that appellant told him that he and Leaks had stashed the guns in the vent and asked Hines to go get the guns when he was released from jail because appellant worried that he had forgotten to wipe

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 16 Jones v. U.S., 27 A.3d 1130 (2011) his fingerprints from the gun. (3) In addition, should evidence of appellant's participation in the armed robbery be necessary to dispel any question whether appellant knew of the weapons in the air vent of the room where he had been staying, DNA analysis would prove that appellant's DNA matched a sample taken from one of the nylon masks used during the armed robbery in North Carolina where the gun was used. 4

During trial before Judge Dixon, the prosecutor and appellant's trial counsel (who had not represented appellant at the pretrial hearings) disagreed on the scope of Judge Satterfield's ruling. Judge Dixon heard arguments from both parties, including a proffer by the prosecutor of the evidence that he intended to show, and he reviewed the pre-trial hearing transcripts of Judge Satterfield's discussions. Although in pretrial discussions with Judge Satterfield, defense counsel had resisted admission of any evidence of the North Carolina armed robbery and shooting, at trial new defense counsel acknowledged that the government could present some evidence of the North Carolina crime to link appellant to the weapon in the D.C. murder. Specifically, counsel said that the government “can establish everything about connecting the .45 to [appellant] without either bringing out the fact that somebody was hit by the bullet, or the fact that [appellant] confesses to having shot the security guard. They can get the same effect by simply saying that [appellant] fired the .45 in the store, and they can do that without the statement [i.e., appellant's confession to shooting the security guard] because they have the bullets and the shell casings.” The prosecutor expressed concern about having witnesses—“who [are] not the most sophisticated” people—“tip-toe” around the shooting of the security guard the defense wanted to redact. Judge Dixon echoed the prosecutor's concern, stating that “I can't see trying to sanitize both the North Carolina incident and the jailhouse statement without doing terrific prejudice to the evidence.” He ultimately ruled that the government could present evidence of a “nonfatal” shooting in North Carolina, but without making a definitive determination on how the government could do so.

Judge Satterfield, during pre-trial discussions, and Judge Dixon, during trial, did not delineate what evidence could be presented to satisfy the government's burden to establish appellant's identity using evidence of another crime, and what evidence was redundant and unduly prejudicial, in light of Drew's strictures on the use of such evidence. Although Judge Satterfield had excluded the security guard from testifying, he had suggested—without saying how—that the government could establish that “a gun was fired” during the robbery. Once the case came to trial before Judge Dixon, defense counsel agreed that the government could present evidence to establish that appellant had fired a gun in the North Carolina robbery. But, not only was the government permitted to “establish” that appellant had fired one of the two guns used in the North Carolina robbery (appellant could not be specifically tied to the .45), it also was able to present detailed testimony from the manager of *1157 the Check Into Cash store who described the armed robbery and shooting of the security guard, and then repeated it, by introducing and showing to the jury in open court a video of the actual robbery and shooting, narrated by the store manager. Although defense counsel had suggested a less inflammatory means to make the desired connection between appellant and the gun, i.e., by establishing that appellant had fired the gun in the North Carolina robbery and that forensic evidence linked that gun to the murder in D.C., Judge Dixon was more preoccupied with the effect of any sanitization on the government's unimpeded use of the evidence than on the prejudicial effect that a full presentation of the unsanitized evidence would have on appellant. As a result, the sheer quantum of evidence offered by the government exceeded by far what the government needed to prove identity, and greatly increased the likelihood that the jury would use the evidence against appellant in an improper manner.

The majority and concurring opinions imply that because appellant was not willing to stipulate that he had the murder weapon a month after the murder in North Carolina and had initially wanted to exclude evidence of the armed robbery and shooting in North Carolina from the trial altogether, counsel bears responsibility for the wholesale admission of the other crimes evidence of the armed robbery and shooting in North Carolina. These arguments go too far. First, the government, as the proponent of the other crimes evidence, did not offer a stipulation that would have addressed the specific issue of possession of the murder weapon that it validly needed to establish. Second, regardless of the parties' positions to gain maximum advantage, and even though counsel's constructive collaboration can assist the judge in arriving at a proper balance in deciding on the nature and quantum of evidence to be admitted, it remains the trial court's responsibility to control the admission of evidence and carefully balance its probative value and prejudicial effect. See, e.g., Johnson, 683 A.2d at 1095.

Even if, as Judge Farrell suggests in his concurrence, the absence of such collaboration by counsel could be a factor in our review of the judge's weighing of the evidence for abuse of discretion, here the record does not support that defense counsel did not provide clear objection and an acceptable alternative to the trial court. Just as two different judges dealt with this issue, one pretrial and another at trial, there also were two different defense counsel, one who handled the pretrial colloquies before Judge Satterfield and a different counsel, who tried the case before Judge Dixon. I agree with the majority that Judge Satterfield's pretrial ruling was not law of the case binding on Judge Dixon. That means the issue was for Judge Dixon to resolve and that is the ruling that is challenged on appeal. At that time, defense counsel conceded that the government could establish appellant's subsequent possession of the murder weapon in North Carolina through the testimony of Ward, the expert testimony on ballistics testing that conclusively identified the weapon recovered from appellant's bedroom in North Carolina as one and the same as the D.C. murder weapon, and the DNA evidence that matched appellant's DNA to a sample recovered from a piece of cloth used as a mask in the armed robbery. In fact, defense counsel went as far as stating that the government could present evidence that appellant had “fired” the gun. But where counsel clearly drew the line was against admitting evidence that “somebody was hit by the bullet, or the fact that [appellant] confesses to having shot the security guard.” Counsel *1158 could not have been clearer as to what evidence of the North Carolina armed robbery should and should not be admitted.

The court should have balanced the government's legitimate use of the evidence against the defense's clearly stated concern about its prejudicial impact. In light of the testimony of the firearms experts, who testified with “absolute certainty” that ballistics testing of the .45 recovered in Ward's house matched bullets recovered from the scenes of the District and North Carolina crimes, to the exclusion of “all other possible firearms,” what was necessary to establish identity was to connect appellant to the gun that was used in the North Carolina shooting. As already noted, the government had ample means at its disposal to this end. Moreover, evidence cannot be considered in isolation; the probative value of particular evidence depends on what other evidence proves the same point. Here, the issue was appellant's identity as the shooter in the murder in D.C. Evidence of the North Carolina crimes was used to establish indirectly appellant's identity through his possession of the murder weapon thirty days after the murder. But here, there was direct evidence that appellant had murdered Valentine: Davis, an eyewitness, positively identified appellant in-court and from a photo array, as the shooter. And appellant had confessed to Hines that he murdered Valentine.

I recognize that in light of the government's high burden of proof, we do not require the government to present its case in such a cramped and disembodied manner that renders its case only sufficient and leaves the jury guessing about the source of the government's evidence or the weight of its case to prove guilt beyond a reasonable doubt. But the essential duty of the trial judge in a criminal case is to control the throttle of relevant evidence to ensure the fairness of the proceeding. Cf. Caufield v. Stark, 893 A.2d 970, 980 (D.C.2006) (“The determination of what evidence is relevant, and what evidence may tend to confuse the jury, is left to the sound discretion of the trial court.” (quoting Turcios v. United States Servs. Indus., 680 A.2d 1023, 1030 (D.C.1996))). In all cases, the court must weight probative value against prejudice. Johnson, 683 A.2d at 1095 (“[T]he evaluation and weighing of evidence for relevance and potential prejudice is quintessentially a discretionary function of the trial court....”). That responsibility requires particular scrutiny in the case of presumptively prejudicial other crimes evidence. In this case, although some evidence of the North Carolina armed robbery was certainly probative on the issue of identity within the strictures of Drew, the trial court abused its discretion in permitting the government to introduce much more evidence— and highly prejudicial evidence—than was needed to meet its burden.

The evidence that was probative was evidence that, in the words of Judge Satterfield, “connected” the guns used in North Carolina to appellant. That “connection” was necessary in order to establish two distinct but interrelated points relevant to the charged crime: appellant's identity, and the fact that appellant had access to the instrumentality used in the murder, an issue I discuss below. Admission of evidence that appellant used the gun to shoot a security guard did not add any probative weight to either the issue of identity or access to the instrumentality used in the murder in D.C. It served only to show that appellant is a dangerous person prone to engage in violent, unprovoked acts. The fact that appellant used the weapon to shoot a person in an unrelated violent crime, therefore, necessarily substantially outweighed its probative value. In this case, the admission of evidence of *1159 another unrelated crime without careful examination of what was probative and what was unduly prejudicial, allowed the Drew exception to swallow the rule.

In addition to determining what evidence is probative, the trial court must also weigh how such evidence should be presented. Judge Satterfield properly determined, over the government's objection, that testimony by the security guard, the victim of the shooting, would be unnecessarily prejudicial. Instead, Judge Dixon permitted the store manager, an eyewitness, to testify about the armed robbery and the shooting. In addition to her testimony, the government was permitted to introduce the security camera video that recorded the crime, during which the store manager repeated her testimony as she narrated the images seen on the video. The store manager's testimony about the shooting of the security guard was irrelevant and highly prejudicial; it should have been excluded. The video, a low-quality black-and-white security camera footage, had negligible probative value in establishing appellant's identity or in tying him to the gun used in the D.C. murder, and because it vividly showed the actual armed robbery and shooting of the security guard, was likely even more prejudicial; it should have been excluded. Although the video does not help the jury identify appellant or the gun used in the robbery, it does unmistakably show that the robbers came into the store with guns blazing and that the security guard was shot without provocation. 5 It was not necessary for the jury to strain to make out the actions in the low-quality video because Geil, the store manager, provided a running narrative of the video from the witness stand. She testified that “as soon as [appellant and Leaks] came in the door, they were shooting. And they shot [the security guard] right down.” Geil repeated her account of the robbery as she provided a narrative for the video being shown to the jury, and the video was paused to allow her to explain details of the scene to the jury, including an explanation of where the security guard appears on the screen and how it is that she was able to see what happened to him after he was shot. When asked what had happened to the guard, Geil said he had “survived.”

In short, whatever probative value Geil's testimony about the shooting of the security guard and the video contributed to tie appellant to the gun that was used both in North Carolina and D.C. was negligible at best because the government had in its quiver other, more substantial evidence that would prove the ultimate issue of the identity of the D.C. shooter. With the DNA match and the unequivocal expert testimony on the ballistics testing, there *1160 was simply no need for the jury to view the video of the robbery to try to guess whether appellant was the “shorter, stockier” of the two robbers on the tape, as the government argued was necessary. The video was also unnecessary to establish that appellant was shorter and stockier than Leaks, because the physical differences between the two men were clearly established by eyewitness Davis, who not only described appellant's build and compared it to Leaks's (who was Davis's neighbor), but positively identified appellant from a photo array and in court as the person who shot Valentine in the District of Columbia. Because the other crimes evidence presented a high likelihood that the jury would make an improper inference of criminal propensity without countervailing probative value, the trial court should have carefully examined the legitimate, probative value of the evidence, and then limited the government's presentation to only probative evidence, excluding, as defense counsel requested, non-probative evidence, of the shooting of the security guard that would unduly prejudice appellant. See Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (“The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.”). In failing to do so, and permitting an unrestricted avalanche of prejudicial evidence of an unrelated crime, the trial judge abused discretion.

II. Direct Evidence of Charged Crime

In addition to being admissible under Drew (subject to proper limitations) to prove identity, some evidence of the North Carolina armed robbery was admissible because it was relevant to the charged murder to establish appellant's possession of the instrumentality used in committing the crime, in this case, the .45. Here, this ground overlaps with use of the evidence to show identity under Drew, but under our cases it rests on a separate analysis. See Johnson, 683 A.2d at 1098 (“Drew does not apply where such evidence ... is direct and substantial proof of the charged crime....”). We have generally required the government to show that the defendant possessed the instrumentality prior to the commission of the crime, or relatively soon thereafter. See, e.g., Thomas v. United States, 978 A.2d 1211, 1240 (D.C.2009) (upholding the admission of evidence that the defendant possessed the firearm four days after the shooting); 6 Busey, 747 A.2d at 1165 (“An accused person's prior possession of the physical means of committing the crime is some evidence of the probability of his guilt, and is therefore admissible.” (quoting

Coleman v. United States, 379 A.2d 710, 712 (D.C.1977))). 7 Our rationale for allowing the admission of such evidence lies in the reasonableness of the inference that a defendant who had access to the weapon soon before or after the crime is likely to have had access to it *1161 at the time of the crime. See Thomas, 978 A.2d at 1240; Busey, 747 A.2d at 1165. For example, in Busey, the government presented evidence that the defendant had possessed a .38 caliber gun—the same caliber weapon used in the charged crime—two days before the murder. Id. We explained that the “evidence established only a reasonable probability, and not a certainty” that the defendant possessed the gun at the time of the murder, and that the lack of certainty only affected the weight of the evidence, not its admissibility. Id.

Here, expert testimony established that the weapon used in the armed robbery and shooting in North Carolina matched the one used in the murder in the District of Columbia. Even though testimony that the same gun was used both times increased the gun's probative value, the important inference was that the same person had the gun at both times. The strength of that inference was diminished by the fact that the gun could be linked to appellant only one of those times, at the site of an unrelated crime that took place in a different state, thirty days later. Notwithstanding the time and geographical distance between the two crimes, even if one assumes evidence that appellant had the murder weapon in North Carolina showed a “reasonable probability” that appellant had access to the same gun in the District of Columbia thirty days earlier, Busey, 747 A.2d at 1165, the probative force of that inference was not dependent on showing that appellant had used the gun during the subsequent armed robbery to shoot a security guard. As Busey makes clear, the trial court must carefully weigh the probative value of the evidence against its prejudicial danger, and excise the “inflammatory” and indirect contextual details of the defendant's prior or subsequent possession of the firearm. Id. at 1165–66. Only if the defense opens the door by challenging the substance of the evidence that the defendant possessed the weapon used in the charged crime at a another proximate time and place may the government present the context of the other possession to “rehabilitate” the evidence's probative potential. Id. But, here, the court did not restrict in the first instance the government's evidence to the fact of appellant's subsequent possession of the murder weapon. Indeed, without any challenge to admission of evidence of appellant's subsequent possession of the murder weapon (which defense counsel acknowledged was admissible), the court allowed the government to introduce, without limitation, substantial details beyond appellant's possession of the gun, including the use of the weapon in an armed robbery and shooting of a security guard, through testimony and a video. All of this evidence was allowed during the government's case-in-chief and before the defense had risked “opening the door” to inflammatory contextual details about the armed robbery and shooting. In light of the potential for prejudice to the defendant, the trial court should have better regulated the scope and manner of the evidence of an unrelated crime in light of its specific, legitimate purpose.

As should be clear, evidence of the North Carolina armed robbery and shooting was not admissible under Johnson as direct evidence because it was neither “closely intertwined with” the Valentine murder nor “necessary to place the charged crime in context.” Johnson, 683 A.2d at 1098. In Johnson, evidence of the gruesome murder of two boys in Maryland was admitted in the prosecution for a murder in the District because “[t]he same gun was used in both, they occurred close to one another in time—the second occurring in part arguably as a consequence of the first—and they tend to prove one another, for the cogent reason (among others) that *1162 the perpetrators of each were known to the two Maryland victims, and for that reason killed them.” Id. Here, on the other hand, there was no connection established between the District of Columbia murder and the North Carolina armed robbery and shooting, except for the identity of the perpetrators and one of the weapons used. Unlike in Johnson, the two crimes were separated by a month in time and a couple hundred miles in distance, and one did not provide the motive for the other. Cf. id. at 1098 n. 11 (“We note that the evidence of the Maryland murders bears an immediate relationship to the charged offenses, both temporally and causally, that is especially strong.... This circumstance weighs heavily in the balance against prejudice.”). The only relevance of the North Carolina armed robbery and shooting to the prosecution's case in the District murder was to argue that appellant was the assailant here because a month later he had the same gun in North Carolina. With such a tenuous connection between the two crimes, the evidence of the North Carolina armed robbery and shooting is not, as in Johnson, “direct and substantial proof” of the District murder. See id. at 1095 n. 8 (noting that “a variety of matters” must be assessed in weighing the probative value of other crimes evidence against its prejudicial danger, including “the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence will rouse the jury to overmastering hostility.” (quoting John Strong, MCCORMICK ON EVIDENCE § 190 (4th ed.1992))).

III. Corroboration

Finally, I disagree with the majority's sua sponte reasoning (the government does not make this argument in its brief) that the entirety of the evidence of the North Carolina armed robbery and shooting was admissible to corroborate Hines's testimony that appellant had confessed to him about the murder in the District of Columbia. This basis for the majority's conclusion is that “evidence of other crimes or acts is admissible to corroborate evidence that itself has a legitimate non-propensity purpose.” Ante at 1146 (quoting United States v. Bowie, 344 U.S.App.D.C. 34, 44, 232 F.3d 923, 933 (2000)). Thus, in Bowie, the court permitted other crimes evidence (additional seized counterfeit currency) that was closely linked to the substance of the defendant's confession for the charged crimes of possession of counterfeit currency. 344 U.S.App.D.C. at 44, 232 F.3d at 933. The D.C. Circuit noted in passing, that “[s]ome courts have imposed additional requirements for bad acts evidence introduced for the purpose of corroboration, requiring that the corroboration be direct and the corroborated matter be significant.” Id. at 44 n. 7, 232 F.3d at 933 n. 7 (citing United States v. Everett, 825 F.2d 658, 660 (2d Cir.1987); United States v. Pitts, 6 F.3d 1366, 1370–71 (9th Cir.1993)). The court declined to adopt such a rule, finding that the concerns could be adequately addressed by the balancing test in Federal Rule of Evidence 403. Id. Neither the majority opinion nor the government cites a case in which we have considered the circumstances under which it is appropriate to permit evidence of an unrelated crime to corroborate other properly admissible evidence. 8 In my view, the use of other *1163 crimes evidence for such a purpose in this case compels the cautionary rule noted in Bowie. Here, the government's purpose was to corroborate Hines's testimony that appellant confessed to the District murder (a legitimate purpose), but it sought to do so by corroborating Hines's testimony about appellant's confession to the North Carolina armed robbery and shooting, which as an uncharged and unrelated crime was extraneous, and prejudicial, and, therefore, an illegitimate purpose. The majority's argument seems to be that if Hines's testimony about appellant's confession to the North Carolina crimes could be corroborated, then his testimony about appellant's confession to the murder in the District would likewise be more credible. Evidence of jail confessions offered by a person in a position to benefit from assisting the prosecution is always subject to serious questions and it is understandable that the prosecutor wished to shore it up. Yet, where the corroborative evidence concerns a crime that is distinct in nature, and is not proximate in time or space to the charged offense, careful attention must be paid to the possible misuse of the evidence by the jury. The other crimes evidence that was admitted in this case did not simply “corroborate” the legitimate purposes of Hines's testimony about the charged murder, as in Bowie, but was used to prove the truth of Hines's testimony that appellant had committed a different crime, to which he also confessed, and added prejudicial details about an unrelated armed robbery and shooting. As was the case with use of the evidence to establish identity under Drew or to prove that appellant had access to the murder weapon, the quantum of evidence about the crimes in North Carolina was out of proportion to what would have been sufficient to corroborate Hines's testimony about appellant's confession, and, therefore, failed FRE 403's balancing test.

IV. Prejudice

What remains is whether the court's erroneous admission of unredacted evidence of the armed robbery and shooting was harmless. The government wisely refrains from arguing harmless error in its *1164 brief, and that could be the end of the discussion. It should be clear that in light of the sheer volume and detail of the evidence of the violent armed robbery and shooting—made particularly impactful by the video—it is impossible to conclude with any confidence that the jury was not substantially swayed by the evidence of the North Carolina crimes. Notwithstanding the judge's limiting instructions to the jury, no amount of cautionary proclamations can unring a bell that has been struck as loudly as it was in this case. Moreover, the government's closing argument went beyond the parameters of the limiting instruction about the proper uses of the other crimes evidence, solely to establish identity and access to the murder weapon. The government's closing argument began, not as one would have expected, with Davis's eyewitness testimony positively identifying appellant as the man who shot Valentine. Instead, the prosecutor referred to appellant as the “mystery man” Davis saw with Leaks during the murder and then described appellant's “partnership” with Leaks in fleeing (with false names) to North Carolina, where they together committed the armed robbery, and again together, escaped from D.C. jail the following year. Only then did the prosecutor mention Davis's positive

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 21 Jones v. U.S., 27 A.3d 1130 (2011) identifications of appellant as the shooter. In closing argument, the prosecutor twice referred to the armed robbery and also mentioned the shooting of the security guard in North Carolina. In rebuttal, the prosecutor responded to defense counsel's closing argument that “nobody s[aw]” appellant with a gun when Valentine was shot in the District, by directing the jury's attention to the crime in North Carolina: “Ed Davis saw him with a gun. Do you want to see him with a gun? Watch the video from the Check Into Cash.” As already discussed, the video in no way assisted the jury in establishing that appellant had the gun used in the District of Columbia murder the previous month, a fact that was established by expert testimony on ballistics and DNA testing, independent of the video. By pointing the jury's attention to the video, the prosecutor highlighted that appellant had committed an armed robbery at another time and place during which he and his same companion in Valentine's murder had terrorized store employees and shot a guard without provocation. By emphasizing the video, the prosecutor's rebuttal crossed the line, arguing that appellant's use of a weapon to commit a violent crime in North Carolina proved that he also used a gun to murder Valentine in the District.

The prejudicial impact of the unregulated admission of evidence of an unrelated crime, particularly when viewed in the context of the expert's exaggerated “one-hundred percent” certainty about the ballistics testing and the prosecutor's closing argument and rebuttal, leads me to conclude that the improperly admitted evidence could well have substantially swayed the jury's verdict. I would reverse and remand for a new trial that properly limited both the evidence of the unrelated crimes in North Carolina and the degree of certainty expressed by the ballistics experts.

Footnotes * Judge Ruiz was an Associate Judge of the court at the time of argument. Her status changed to Associate Judge, Retired, on September 1, 2011. 1 The manufacturing process leaves distinct marks inside each firearm, and the firing of ammunition imparts some of those special marks onto expended bullets and shell casings. For example, the manufacturing process leaves “lands, which are raised areas in the [ ] barrel, and grooves which are recessed areas in the barrel. When a bullet is fired through the barrel, then you [ ] get the negative [of the lands and grooves] imprinted onto the bullet itself.... This [type of] fine striated detail ... is the detail [experts] look[ ] for.” When examining a cartridge casing from one crime scene and a gun recovered elsewhere, an examiner first “test fires” the firearm and collects the expelled ammunition components. Then he or she uses a comparison microscope (“two microscopes [connected by an] optical bridge”) to conduct a “side by side” comparison of the slugs and cartridge casings from the crime scene and the “test fires to see if [they share the] same unique detail[.]” Trained examiners thus determine if they can “match [a firearm] back to [previously] fired ammunition components[.]” 2 Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923). 3 Appellant also complains that the trial court denied the motion without having read it. Yet, Jones had not made Leaks's written motion physically available to Judge Dixon. Leaks had pleaded guilty in April of 2007, when the cases were assigned to Judge Satterfield. Leaks's 2006 motion was in his case jacket (not Jones's), and counsel conceded that he “didn't take the logistical step of seeking leave to join [Leaks's motion in writing] or reproducing [it] and filing it in Mr. Jones' name.” Moreover, counsel did not request that the court defer ruling until after it had read the motion or reconsider its merits after giving counsel additional time to provide a copy. In any event, we have read Leaks's motion, and nothing in it undermines the conclusions we explain below. 4 See State v. Lucero, 207 Ariz. 301, 85 P.3d 1059, 1062 (App.2004) (“To earn the right to a Frye hearing on previously accepted scientific evidence, the party opposing its admissibility must preliminarily demonstrate that the method is no longer accorded general scientific acceptance.”) (internal quotation marks and citation omitted). 5 See, e.g., Williams v. United States, 881 A.2d 557, 566 (D.C.2005); Peyton v. United States, 709 A.2d 65, 66–67 n. 7 (D.C.1996); Frendak v. United States, 408 A.2d 364, 368 (D.C.1979); Frezzell v. United States, 380 A.2d 1382, 1383 (D.C.1977); see also Goodall v. United States, 86 U.S.App.D.C. 148, 153, 180 F.2d 397, 402 (1950) (“evidence of such or similar [ballistics] tests or experiments is [generally] admissible in criminal cases in the federal courts”) (citing cases); Laney v. United States, 54 App.D.C. 56, 60, 294 F. 412, 416 (1923) (upholding admissibility of “testimony given by the expert witnesses, tending to establish that the bullet, extracted from the head of the deceased, was shot from the pistol found in the defendant's possession”). 6 Adina Schwartz, A Systematic Challenge to the Reliability and Admissibility of Firearms and Toolmark Identification, 6 COLUM. SCI. & TECH. REV. 2 (2005) . 7 Appellant urges us to consider recent reports of the National Research Council, Committee on Identifying the Needs of the Forensic Sciences Community, Strengthening Forensic Science in the United States: A Path Forward (2009), and the National Research

Council, Committee to Assess the Feasibility, Accuracy and Technical Capability of a National Ballistics Database, Ballistic Imaging (2008), both of which were issued after the trial in this case. Although such evidence is not properly before us, even after considering it, we are still unpersuaded that pattern matching is no longer generally accepted. 8 See, e.g., Commonwealth v. Pytou Heang, 458 Mass. 827, 942 N.E.2d 927, 946 n. 31 (2011) (requiring examiner to testify “to a reasonable degree of ballistics certainty” but noting that Association of Firearm and Toolmark Examiners standards state that examiners should be conservative and not even testify as to a match unless, based on training and experience, they already consider it a “practical impossibility” that any other weapon could have been involved) (citing Theory of Identification as it Relates to Toolmarks, 30 AFTE J. 86, 86–88 (1998)); United States v. Willock, 696 F.Supp.2d 536, 546–47, 571 (D.Md.2010) (pattern matching “generally accepted within the field of toolmark examiners”; adopting magistrate judge's recommendation that “in light of two recent [NRC] studies ... toolmark examiners must be restricted in the degree of certainty with which they express their opinions”); United States v. Taylor, 663 F.Supp.2d 1170, 1175–80 (D.N.M.2009) (pattern matching “generally accepted among firearms examiners in the field”; given Schwartz's testimony and both NRC studies, examiners should state their conclusions “to within a reasonable degree of certainty in the firearms examination field”); United States v. Diaz, 2007 WL 485967, at *11, 14 (N.D.Cal. Feb. 12, 2007) (pattern matching “generally accepted by the firearms-examiner community”; in view of Schwartz's testimony, experts may state their opinions to a “reasonable degree of certainty in the ballistics field”); United States v. Monteiro, 407 F.Supp.2d 351, 372 (D.Mass.2006) (“[T]he community of toolmark examiners seems virtually united in their acceptance of the current technique”; considering, among other things, Schwartz's affidavit, an “examiner who has documented and had a second qualified examiner verify her results may testify ... that a cartridge case matches a particular firearm to a reasonable degree of ballistic certainty.”). 9 See Fleming v. State, 194 Md.App. 76, 1 A.3d 572, 590 (2010) ( “notwithstanding the current debate on the issue, courts have consistently found the traditional method [the comparative microscopic pattern matching technique] to be generally accepted within the scientific community”); Commonwealth v. Meeks, 2006 WL 2819423, at *29, 38–45, 50 (Mass.Super.Ct.2006) (examiners' testimony shows pattern matching is “generally accepted”; their testimony “overcomes Schwartz's challenge” because she has never “been trained as a firearms examiner or conducted a firearms examination,” “conducted a test concerning the changes in toolmarks over time,” “taken a proficiency test[,]” “watched the manufacture of a firearm, spoken with firearm manufacturers, or fired a gun”). 10 See Pytou Heang, 942 N.E.2d at 943 (even in light of recent studies, no error in denying request for Daubert hearing because testimony based on comparison matching “has long been deemed admissible” and a Daubert hearing is “generally not required where we have previously admitted expert testimony of the same type,” “for the same purpose,” and where there is no issue as to “whether the expert is qualified,” or “the appropriate methodology has been followed”); United States v. Cerna, 2010 WL 3448528, at *4–6 (N.D.Cal. Sept.1, 2010) (“no need for a pretrial Daubert hearing” because the Diaz order found pattern matching “passed Daubert muster”—meaning, among other things, it is “generally accepted by the firearms community”—and “[d]evelopments subsequent to the Diaz ruling, [like the Path Forward Report] have not undermined” it; court's “gatekeeping role is not intended to serve as a replacement for the adversary system”) (internal quotation marks and citations omitted); Commonwealth v. Whitacre, 878 A.2d 96, 101 (Pa.Super.Ct.2005) (pattern matching “generally accepted by the scientific community consisting of firearms experts and by a number of significant governmental bodies”; since it “has been in use since the 1930's, it is neither new nor original, but rather is [ ] offered all the time”) (citing Commonwealth v. Dengler, 843 A.2d 1241, 1243–45 (Pa.Super.Ct.2004) (“a Frye analysis is not triggered every time science enters the courtroom; it only applies when an expert seeks to introduce novel scientific evidence”)). 11 Although appellant's claim regarding expressions of certainty was arguably preserved in Leaks's written motion, see note 3, supra, Jones's attorney never brought the issue “to the judge's attention, nor did [ ] counsel ever renew the motion on the basis of any specific prejudice occurring during the trial.” Thorne v. United States, 582 A.2d 964, 965 (D.C.1990) (“A party who neglects to seek a ruling on his motion fails to preserve the issue for appeal.”). Nevertheless, the government has not asked us to apply plain error review, so we will assume that the point has been preserved for appeal. 12 Mulderig agreed that “there's two samples [in the] photograph, ... one on the left [that] is gold, ... [and] one on the right [that] is silver [.] ... And the silver one is the test fired cartridge [.] ... And the gold one is the piece of evidence from the crime scene[.]” 13 We therefore reject appellant's argument that Judge Satterfield had established the “law of the case” with respect to this question. See Kritsidimas v. Sheskin, 411 A.2d 370, 372 (D.C.1980) (the law of the case doctrine “does not apply where the first ruling has little or no ‘finality’ to it”). 14 More than one individual's DNA was present on the item of clothing (a black nylon used as a mask), which had Jones's DNA on it. The “predominant profile” at all sixteen genome locations tested (the “larger concentration” of DNA overall) matched Jones's DNA profile. Leaks could not be ruled out as the minor contributor to the DNA mixture. For that reason, defense counsel argued: “The DNA evidence doesn't put Mr. Jones on the scene either. It's no different than me stealing [the prosecutor's] necktie,” “committing a robbery with [it on,]” “leaving it on the scene [,]” and then “asking the jury to belie[ve,] ‘well, [the prosecutor] obviously did this robbery because his DNA was found on the clothing.’ ” The defense used the exact same analogy in its closing and made a similar argument in its opening statement.

15 Counsel claimed, “there is as much connection to the .45 between Mr. Leaks [ ] as there is to Mr. Jones.... You obviously can't give high credit to the statements made by the jailhouse informant”; “the credibility of his statement is going to be suspect ... [because] it is just as likely that he got all this information from Mr. Leaks and [ ] is now attribut[ing it] to Mr. Jones in the interest of getting out of jail.” 16 The video showed two men walking into the store, firing, and collecting money. The guard's back was visible in the corner of the video frame prior to the robbery and then he dropped completely out of view after the men entered the store shooting. There was no gory portrayal of the shooting or its effect on the guard. 17 The predominant DNA profile obtained from a black nylon cloth used as a mask matched Jones's DNA profile; Leaks could not “be excluded as a contributor in the weaker profile” on that cloth. Leaks matched a partial profile developed from a brown knit hat and could not be excluded as a contributor to a DNA mixture profile developed from the dark blue shirt. 18 Drew did not include “corroboration” in its list of permissible uses for “other crimes” evidence, but it explicitly stated that its list of valid, non-propensity purposes was non-exhaustive. Drew, 118 U.S.App.D.C. at 16 n. 10, 331 F.2d at 90 n. 10; see Johnson, 683 A.2d at 1092. 19 See, e.g., Bowie, 344 U.S.App.D.C. at 44, 232 F.3d at 933 (in prosecution for possession of counterfeit currency, approving introduction of uncharged act of possession one month before charged crime, where proof of uncharged act corroborated defendant's confession to both acts) (citing United States v. Wimberly, 60 F.3d 281, 284–85 (7th Cir.1995) (in sexual molestation prosecution, court admitted defendant's confession to molesting another stepdaughter thirteen years earlier to bolster credibility of his confession to charged crime (both confessions were made to the same therapist); although defendant claimed he had falsely confessed to molesting recent victim, he had no reason “to fabricate a story concerning a totally unrelated incident”)). 20 Jones points out that there was a related ex parte proffer (maintained under seal) that “appellate counsel [still] does not know” about. We have examined that material, and it reveals no valid basis for cross-examination. 1 Contrarily, federal courts have interpreted Federal Rule of Evidence 404(b)—which is a codification similar to our general prohibition on other crimes evidence—as “a rule of inclusion rather than exclusion.” United States v. Bowie, 344 U.S.App.D.C. 34, 40, 232 F.3d 923, 929 (2000). 2 “Relevant evidence is simply ‘that which tends to make the existence or nonexistence of a [contested] fact more or less probable’ than it would be without the evidence.” Busey, 747 A.2d at 1165 (quoting Punch v. United States, 377 A.2d 1353, 1358 (D.C.1977)). 3 Judge Satterfield emphatically expressed his views about what he considered undue prejudice in light of the evidence available to the government to prove appellant's identity: THE COURT: Well, why can't you prove it without getting into the actual details of the robbery shooting? ... You want to put the guns at that scene of the—those particular guns at—with the defendants at that scene through DNA evidence on clothing, plus ballistic evidence from the scene. You want to do it by bringing in somebody who is going to testify that they shot him. And then I have to tell the jury, you know, you heard that they shot him. But, you know, never mind, don't think of that as a pattern of any conduct by them or to prove that they actually shot somebody up here, even though you've already heard that they shot that other man down there, because as the judge is going to tell you, you can only consider it for identity. ... And then you want to bring it in through this witness who says he was shot. And I'm asking the government, and answer my question, why can't you sanitize it to the point of just saying that it was some kind of scene down there where they recovered these items of a robbery and then without having to do it through having a witness come in and say that he was shot with a gun in the chest? 4 The store manager testified that both robbers were masked. DNA from a brown knit cap matched the DNA of Leaks. The knit cap matched to Leaks's DNA and the nylon cloth linked to appellant's DNA were recovered behind the store immediately after the robbery. 5 Contrary to the majority opinion's characterization, the video is virtually worthless in identifying appellant as one of the perpetrators. Both robbers were masked; according to the store manager, they were covered from “head to toe.” Moreover, the camera's perspective is such that it is virtually impossible to tell which one is the “stockier, shorter” one (presumably appellant), and, because the video is black-and-white, it is difficult to tell which of the robbers wore the “light blue” shirt the store manager said the shorter man wore. It is impossible to identify the weapons in the robbers' hands. What the video clearly shows is the security guard being shot. As the video starts, about two-thirds of the guard's body is visible in the lower-right portion of the screen; the guard then leans into the frame and his head is fully in view; as the robbers enter the store, a flash of light is seen coming from the gun of one of the robbers in the direction of the security guard, and the guard falls from the frame; there ensues a chaotic scene in which the robbers quickly collect the money, after which store employees are seen going to the place where the guard fell; finally, when an officer arrives on scene, he goes directly to the spot where the guard fell.

6 See also Millard v. United States, 967 A.2d 155, 165 (D.C.2009) (hypothesizing that if “police had discovered extra ammunition or a gun holster in appellant's home on February 10, 2005, the government could be expected to argue—with justification—that such evidence makes it likely that appellant had access to a gun and ‘more probable’ that he possessed one on February 9, 2005, the day of his arrest”). 7 See also Jackson v. United States, 623 A.2d 571, 587 (D.C.1993) ( “An accused's prior possession of the physical means of committing a crime is admissible.”); Marshall v. United States, 623 A.2d 551, 554 (D.C.1992) (finding no error in the admission of evidence that the defendant possessed the firearm used in the murder two months before the killing). 8 Minick v. United States, 506 A.2d 1115 (D.C.1986), relied upon by the majority, is inapposite because it did not involve the admission of extraneous evidence of another crime to corroborate properly admitted evidence. In Minick, a wallet with parole papers in the defendant's name was found “within approximately one hour of the estimated time of the victim's rape and murder ... approximately twenty five feet” from the body of the victim. Id. at 1118. Appellant had argued that his wallet had been lost “for several days” before the crime was committed. Id. The question for the court was whether the parole documents could be introduced to establish the defendant's identity as the perpetrator—there was no witness to the crime—including through the testimony of two witnesses who saw the defendant with the parole papers found in the wallet “a few hours before” the crime. Id. The parole papers, in short, were evidence found at the crime scene and were shown to witnesses who identified them as the same papers the defendant had in his wallet just before the crime. Even though the papers were direct evidence of the charged crime, the court analyzed their admissibility as other crimes evidence. The court concluded they were admissible because the government did not have “ample other evidence establishing the identity of the assailant” making them “highly probative evidence of a material fact in issue,” id. at 1119, and potential prejudice was “diminished” as the papers “did not contain any reference to the [other] crime the defendant had committed,” id. at 1120. The differences with this case are obvious; here, the government had ample other evidence identifying appellant as the shooter in the District, evidence about the North Carolina crimes was extraneous to the murder in the District, and a great amount of detail about the North Carolina crimes was admitted. The majority opinion also cites Strozier v. United States, 991 A.2d 778 (D.C.2010). Strozier also is inapposite as it did not involve evidence of an unrelated crime. The issue in Strozier was the admissibility of an autopsy photograph of the victim of the charged crime, to address an issue that the defendant had contested. Id. at 794.

28 A.3d 520 District of Columbia Court of Appeals.

In re M.L., R.Y., Appellant.

No. 10–FS–423. | Argued March 15, 2011. | Decided Sept. 8, 2011.

Synopsis Background: The government filed petition alleging that child was educationally neglected due to the fact that she had not been enrolled in school for over one year and that her father suffered from a mental incapacity that impacted his ability to parent. The Superior Court, Maurice A. Ross, J., entered magistrate's finding of neglect. Father appealed.

Holdings: The Court of Appeals, Blackburne–Rigsby, J., held that:

[1] results of father's court-ordered mental evaluations were not protected by the doctor-patient privilege;

[2] trial court acted within its discretion in precluding father from calling child as witness;

[3] written reports of medical experts who performed court-ordered mental health evaluations of father were admissible; and

[4] evidence was sufficient to support finding of educational neglect.

Affirmed.

Attorneys and Law Firms

*522 Thomas P. O'Toole, for appellant.

Anna Adamczyk, for appellee M.L.

Tobey K. Oliver, Assistant Attorney General, with whom Peter J. Nickles, Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellee District of Columbia.

Before BLACKBURNE–RIGSBY and OBERLY, * Associate Judges, and FARRELL, Senior Judge.

Opinion

BLACKBURNE–RIGSBY, Associate Judge:

Appellant R.Y. challenges the trial court's determination that he neglected his teenage daughter M.L. from August 2007 to February 2009, during which time M.L. did not attend school. On appeal, appellant contends that the trial court committed numerous errors in reaching its determination of educational neglect. In particular, we focus on appellant's claim that the court committed reversible error by admitting expert testimony and written reports regarding appellant's mental health without previously making an individualized determination that appellant's doctor-patient privilege should be waived. With respect to this claim of legal error, we hold that the Council of the District of Columbia (“Council”) did not intend its passage of the Improved Child Abuse Investigations Amendment Act of 2002 1 to bar or restrict Superior Court judges from admitting the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 In re M.L., 28 A.3d 520 (2011) results of court-ordered mental evaluations in neglect hearings. Moreover, court-ordered mental examinations made pursuant to D.C.Code § 16–2315(e)(4) (2006 Supp.) are governed by the long-held rule in this jurisdiction that a doctor who examines an individual only for testimonial purposes has “no confidential relation” with the individual and the information gleaned from those examinations is not privileged. Taylor v. United States, 222 F.2d 398, 402 (D.C.Cir.1955); see also Kendall v. Gore Props., Inc., 236 F.2d 673, 683 (D.C.Cir.1956). Therefore, such examinations are not subject to the specific waiver requirement present in D.C.Code § 4–1321.05 (2009 Supp.), which governs the admissibility of privileged mental examinations *523 conducted for purposes other than testimony.

Additionally, we are unpersuaded by appellant's remaining claims that: (1) the trial court abused its discretion and violated appellant's due process rights by denying appellant's request to call M.L. as a witness in appellant's defense; (2) the court abused its discretion in admitting the written reports of the doctors who conducted the court-ordered mental evaluations of appellant, as those reports constituted inadmissible hearsay; and (3) the evidence was insufficient to support the trial court's finding of educational neglect. Accordingly, we affirm the trial court's finding of neglect.

I. Factual Background

The facts in this case are largely undisputed. In summary, M.L. was born to her mother, A.L., and father, appellant R.Y., 2 on October 8, 1992. On February 2, 2009, appellee District of Columbia filed a petition in Superior Court alleging that M.L. was a neglected child within the meaning of both D.C.Code §§ 16–2301(9)(A)(ii) and (iii) (2009 Supp.). Specifically, the government's petition alleged that M.L. was educationally neglected due to the fact that she had not been enrolled in school for over a year, and that her father suffered from “a mental incapacity that is impacting his ability to parent” M.L. The government alleged neglect pursuant to § 16–2301(9)(A)(iii) based on evidence that, during a three-year period from 2005 through 2008, appellant had reported to authorities a series of false allegations that M.L. had been sexually abused on more than five different occasions. In regard to M.L.'s educational neglect, the government proffered that appellant withdrew M.L. from school for an eighteen-month period, even though appellant acknowledged that M.L. was a special-needs student with cognitive limitations and a learning disability, and appellant was not trained to provide special education instruction.

Beginning on March 20, 2009, Magistrate Judge William W. Nooter presided over a five-day fact-finding hearing to determine whether M.L. was a neglected child. 3 Pursuant to Magistrate Judge Nooter's court order, 4 Dr. Craig King and Dr. Todd Christiansen, both employed by the District of Columbia's Department of Mental Health, conducted evaluations of appellant. 5 After performing numerous psychological tests, both doctors independently concluded that appellant suffered from “Delusional Disorder, Persecutory Type.” Dr. King testified that appellant's delusions, that M.L. was being sexually assaulted by various individuals, were a substantial detriment to M.L.'s well-being because they forced her to live “within [appellant's] delusional world, literally changing the way [M.L.] thinks and acts.” Ultimately, Magistrate Judge Nooter found that the government had established, *524 by a preponderance of the evidence, that M.L. was a neglected child within the meaning of both D.C.Code §§ 16–2301(9)(A)(ii) and (iii). In a written order dated March 25, 2010, Associate Judge Maurice A. Ross found that Magistrate Judge Nooter did not err or abuse his discretion, and upheld the finding of neglect. Appellant now brings this appeal.

II. Analysis

A. Appellant's Court–Ordered Mental Health Evaluations Were Admissible in the Fact–Finding Neglect Hearing [1] Appellant contends that the trial court committed reversible error when it admitted expert testimony and written reports about appellant's mental health, over objection, without making an individualized determination that appellant's doctor-patient privilege should be waived in regard to statements made during the course of court-ordered mental evaluations.

[2] Generally, “[e]xcept where otherwise provided by statute, the physician-or psychotherapist-patient privilege does not apply to communications ... during a mental examination or psychological test required by a court, or to a communication made after a court-ordered examination with respect to that examination.” 81 AM.JUR.2D Witnesses § 444 (2004) (citations omitted). This exception to the general rules governing privilege is logical—a court-ordered examination is not for the purpose of treatment, but is rather geared towards determining the existence of a fact or condition for the court's benefit. Id.

In the D.C.Code, the provisions governing “[p]hysical and mental examinations” provide that the results of a court-ordered mental examination “shall not be admissible evidence in the fact-finding hearing unless the allegations contained in the petition set forth facts which support a petition pursuant to D.C. Official Code, section 16–2301(9)(C).” 6 The government interprets this subsection to mean that the results of a court-ordered mental examination are admissible where “the District's petition includes allegations that the parent's mental health status leaves them unable to properly care for the child.” Therefore, the government contends that the expert reports and testimony were properly admitted because the petition in the present case alleges neglect based upon the parent's mental health status.

[3] Ultimately, we agree with the government's interpretation of the statute and affirm the trial court's order. However, the government, in support of its argument, relied on the outdated version of § 16–2301(9)(C). 7 While § 16–2301(9)(C) formerly read: “[The term ‘neglected child’ means a child:] whose parent, guardian, or other custodian is unable to discharge his or her responsibilities to and for the child because of incarceration, hospitalization, or other physical or mental incapacity,” it no longer contains such language. 8 The current version of § 16–2301(9)(C) reads: “Subparagraph (A)(viii), (ix), and (x) of this paragraph shall apply as of October 1, 2003.” 9 The new language is the result of the Council's passage of the Improved Child Abuse Investigations Amendment Act of 2002 (the “2002 Act”). Taken together and read literally, *525 §§ 16–2315(e)(4) and –2301(9)(C) would now read: “The results of the mental or physical examination shall not be admissible evidence in the fact- finding hearing unless the allegations contained in the petition set forth facts which support a petition pursuant to Subparagraph (A)(viii), (ix), and (x) of this paragraph shall apply as of October 1, 2003.” (Emphasis added). In other words, the 2002 Act has now rendered § 16–2315(e)(4) unintelligible. When the literal meaning of a statute “produces absurd results,” we do not follow it, but instead attempt to ascertain the legislative intention behind the statute by looking to the legislative history. Varela v. Hi–Lo Powered Stirrups, Inc., 424 A.2d 61, 65 (D.C.1980) (en banc) (citing District of Columbia Nat'l Bank v. District of Columbia, 348 F.2d 808, 810 (D.C.Cir.1965)); see also Blodgett v. Univ. Club, 930 A.2d 210, 220 n. 8 (D.C.2007).

[4] General canons of statutory construction dictate that, where the words of a later statute differ from those of a previous one on the same or related subject, the legislature must have intended them to have a different meaning. However, we are not bound to apply this canon where such an interpretation is unsupported by the statute's purpose and legislative history. Gause v. United States, 6 A.3d 1247, 1253–54 (D.C.2010) (en banc) (citing United States v. Wilson, 290 F.3d 347, 360 (D.C.Cir.2002)); see also Grayson v. AT & T Corp., 15 A.3d 219, 254–55 (D.C.2011) (en banc) (Ruiz, J., concurring in part and dissenting in part); In re A.O.T., 10 A.3d 160, 165 n. 15 (D.C.2010). Such is the case here. The stated purpose of the 2002 Act is: “to broaden and clarify the definitions of child abuse, and to amend the circumstances under which child abuse reports can be expunged from the Child Protection Register; and to amend Title 16 of the District of Columbia Official Code to broaden and clarify the definitions of child abuse and neglect.” 10 Prior to 2002, what constituted child neglect in this jurisdiction was defined more generally in only seven subsections. See D.C.Code § 16–2301(9)(A)–(G) (2001). With the passage of the 2002 Act, the Council restructured the definition of child neglect in the District of Columbia from seven lettered subsections to the current ten numbered subsections. Compare D.C.Code § 16–2301(9)(A)–(G) (2001), with D.C.Code § 16–2301(9)(A)(i)–(x) (2009 Supp.) However, in drafting and passing the 2002 Act, the Council did not update the cross-reference to § 16–2301(9)(C) in § 16–2315(e)(4).

Although the 2002 Act's stated purpose is silent on the issue of the admissibility of the results of a court-ordered mental examination, 11 reading the changed language in the subsection as signifying the intention of the Council to change the law to bar the admissibility of court-ordered examination results would contradict both the Council's earlier legislative history as well as our own case law. A 1977 Council Report explains that the Council earlier amended § 16–2315 “to permit the court to order [mental or physical] examinations before the fact-finding and to admit the results in such a hearing when the mental or

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 In re M.L., 28 A.3d 520 (2011) physical incapacity of the parent or guardian has been alleged in the petition as a cause of the neglect....” D.C. Council, Report on Bill 2–48 at 18 (Mar. 29, 1977) (emphasis added). If the Council sought to change the law regarding this *526 issue with the 2002 Act, then surely it would have so stated in the act or in the legislative history. 12 However, it did not.

Significantly, we recently stated that the 2002 Act “has no effect” on our analysis of § 16–2315 regarding the admissibility of court-ordered examination results. See In re N.P., 882 A.2d 241, 243 n. 2 (D.C.2005). In N.P., we found error in the trial court's admission of the results of a court-ordered mental examination where the underlying neglect petition did not provide any “factual allegations of mental illness or other incapacity....” Id. at 249. Prior to reaching our determination, we noted that: “The statute under which the neglect petitions were filed, D.C.Code § 16–2301(9) (2001), has since been amended by the [Improved Child Abuse Investigations Amendment Act], D.C. Law 14–206, 49 D.C. Register 7815 (2002). Subsections (9)(A), (9)(B), and (9)(C) of the 2001 version are now codified as D.C.Code § 16–2301(9)(A)(i), (ii), and (iii) (2005 Supp.), respectively. The amendment, however, has no effect on this case.” N.P., supra, 882 A.2d at 243 n. 2. Moreover, we proceeded to conduct our § 16–2315(e)(4) analysis as though § 16–2301(9)(C) still pertained to a finding of neglect due to mental incapacity. 13 Similar to our analysis in N.P., here we should construe § 16–2315(e)(4) as if § 16–2301(9)(C) still contained the pre–2002 language.

There are also persuasive policy arguments in support of construing § 16–2315(e)(4) in this manner. The Council enacted these provisions that confer upon family court judges the power to order psychological examinations and to use the results of the examinations to assist the court in making determinations of child neglect or abuse. Any concern about the privacy of this evidence would appear sufficiently addressed by § 16–2315(e)(4)'s requirement that the neglect petition sufficiently allege that the parent's mental or physical incapacity is a cause of the alleged neglect. See D.C.Code § 16–2315(e)(4). It seems unlikely that the Council intended to place another obstacle in the way of a family court judge's admission of evidence that may prove exceedingly beneficial to the court in making a determination of neglect.

[5] [6] In addition to these policy considerations, we find further support for our interpretations of §§ 16–2301(9)(A) and –2315(e)(4) in case law that, interestingly, was not cited by either party here. The long-held rule in this jurisdiction is that a doctor who examines an individual only for testimonial purposes—i.e., in preparation for testifying about the individual's physical or mental condition—has “no confidential relation” with the individual and, therefore, the information gleaned from such an examination is not privileged. Taylor v. United States, 222 F.2d 398, 402 (D.C.Cir.1955); see also Kendall v. Gore Props., Inc., 236 F.2d 673, 683 (D.C.Cir.1956). 14 In Taylor, the United States *527 Court of Appeals for the District of Columbia Circuit crafted the following rule: statements made to a psychiatrist “in a professional capacity” are protected by doctor-patient privilege, but statements made during an examination for solely testimonial purposes are not protected by privilege and are admissible. 15 222 F.2d at 402. Here, the expert testimony of Drs. King and Christiansen was governed by the Taylor rule and therefore was not protected by doctor-patient privilege. 16

Appellant does not assert that the 2002 Act signified an intention by the Council to change the meaning of § 16–2315(e)(4). Instead, he directs our attention to D.C.Code § 4–1321.05, which provides that “the physician-patient privilege shall [not] be grounds for excluding evidence in any proceeding ... concerning the welfare of a neglected child; provided, that a judge of the Family Division ... determines such privilege should be waived in the interest of justice.” Appellant interprets this section as requiring a specific finding of waiver by the court before any statement from a court-ordered examination may be admitted. For support, appellant cites In re O.L., 584 A.2d 1230, 1233–34 (D.C.1990), and N.P, supra, 882 A.2d at 249–50. In O.L., we held that a specific finding that doctor-patient privilege should be waived was necessary before the neglect court could admit evidence of prior psychological treatment. 584 A.2d at 1233–34. In N.P., we discussed O.L.'s specific-finding requirement in the context of a neglect hearing where the parent had been subjected to a court-ordered psychological examination but did not contend that it was privileged. 17 882 A.2d at 249–50. Moreover, appellant contends that “Section 16–2315(e)(4) does not expressly deprive the trial court of discretion to either maintain or waive doctor-patient privilege, and it would be improper to read the provision as implicitly doing so.” Appellant's argument is unpersuasive, because it cites our law outside of appropriate context. Had Drs. King and Christiansen examined appellant prior to Magistrate Judge Nooter's court-ordered examination, for a purpose other than subsequent testimony, the examination results would have been privileged and would have required

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 In re M.L., 28 A.3d 520 (2011) a specific finding that “such privilege should be waived” prior to their admission pursuant to § 4–1321.05. 18 However, those are not the circumstances *528 here. In this case, Drs. King and Christiansen only evaluated appellant pursuant to Magistrate Judge Nooter's court-ordered examinations. Therefore, pursuant to the Taylor rule, the results of those examinations were not privileged and were admissible in a neglect fact-finding hearing, according to § 16–2315(e)(4), as long as the underlying neglect petition alleged mental incapacity. As the neglect petition in the present case did allege mental incapacity, Magistrate Judge Nooter did not err in admitting the results of the court-ordered mental examinations because no privilege applied, and such evidence remains admissible pursuant to § 16–2315(e)(4).

B. The Trial Court Did Not Abuse its Discretion in Precluding M.L. From Giving Live Testimony [7] [8] Appellant also seeks reversal on the ground that the trial court erred when it precluded appellant from calling M.L. to give live testimony. Appellant contends that the trial court's decision violated his due process right to a fair trial. Because appellant appeals the trial court's evidentiary ruling—a discretionary ruling that depends on the particular facts of each case— we review for an abuse of discretion. See In re L.L., 974 A.2d 859, 862 (D.C.2009) (citing Brisbon v. United States, 894 A.2d 1121, 1128 (D.C.2006)). Abuse of discretion requires a two-part inquiry. See L.L., supra, 974 A.2d at 862–63 (citing Johnson v. United States, 398 A.2d 354, 367 (D.C.1979)). First, the court must determine “whether the exercise of discretion was in error and, if so, whether the impact of that error requires reversal.” L.L., supra, 974 A.2d at 862–63 (quoting Johnson, supra, 398 A.2d at 367) (internal quotation marks omitted).

[9] [10] [11] [12] We dealt with this precise issue in In re Jam. J., 825 A.2d 902 (D.C.2003). Neglect proceedings require the trial court to engage in balancing parents' fundamental custodial rights over their children with the court's legal responsibility to act as parens patriae to protect children from harm. Jam. J., supra, 825 A.2d at 913. We held in Jam. J. that the trial court has the power to protect a child from the harmful effects of forced testimony “where a demonstrated risk of serious psychological or emotional harm to the child is not adequately mitigable by other means and substantially outweighs the parent's need for the child's testimony....” Id. at 917. We adopted a three-part balancing test that requires three case-specific factual determinations that must be made in order to justify excluding the child's testimony. Id. at 917–18. The Jam. J. test requires:

First, the trial court must make a finding on the record that testifying would create a risk of serious harm to the child....

Second, if the trial court finds that the child is at risk of serious harm from having to testify, the court must consider whether the risk can be alleviated by means short of prohibiting the testimony altogether....

Third, after taking into consideration the risk of harm to the child and the possibility of ameliorative measures, the court must evaluate the prohibitive value of the child's testimony and the parent's concomitant need for it.

Id. at 917–18. The record indicates that the trial court was aware of the Jam. J. test and applied it correctly in the present case. Magistrate Judge Nooter expressly relied on expert testimony in his Jam. J. analysis: “So I think the [Jam. J.] analysis is appropriate to use, but I would find, *529 based upon the testimony I heard, that there would be substantial harm, both based upon Dr. King's opinion and Dr. Alfano's opinion, regarding that.” In considering the first prong of the Jam. J. test, Magistrate Judge Nooter based his conclusion on specific expert testimony. 19

In explaining his finding with respect to the second prong of the Jam. J. test, Magistrate Judge Nooter explored many different ways to accommodate appellant's desire to have M.L.'s account on the record. Magistrate Judge Nooter discussed the option of live testimony in open court, an examination of M.L. in camera, an under-oath video interview, and the admission of out-of- court statements made during the course of court-ordered interviews. 20 After Dr. King testified that M.L.'s testimony in open court would subject her to the risk of mental and emotional harm, Magistrate Judge Nooter probed the expert further: “Well, what I want to ask the doctor [is] if there were some other method of doing it, either without the father present or even without the attorneys in the same room or possibly without them even asking questions.... Would that make any difference to the harm that you've testified to?” Dr. King responded that any type of questioning by a lawyer or judge would further traumatize M.L. This record overwhelmingly supports a determination that the trial court complied with the second prong of the Jam. J. test.

In applying the last prong of the Jam. J. test, Magistrate Judge Nooter pressed appellant for a proffer of the probative value of M.L.'s prospective testimony. The court reasoned that, whereas the excluded testimony in Jam. J. was the parent's attempt to cross-examine the children concerning their accusations against the parent, “M. has never accused Mr. Y of anything. She's never said anything negative about him. She has made statements regarding being sexually abused by other people. The statements that [appellant is] seeking, from what I gather, are not different from what these out of court statements are.” Therefore, the record provides strong support for our determination that the trial court properly applied all three Jam. J. prongs.

We are unpersuaded by appellant's contentions that his interest in calling M.L. as a witness was “at a premium” due to what appellant alleges was the government's heavy reliance on M.L.'s out-of-court statements. The “at a premium” language derives from Jam. J., supra, 825 A.2d at 919, dicta where we suggested that the trial court on remand consider the government's heavy reliance on the child's out-of-court statements in determining the importance of the parent's ability to confront the children's testimony in court. However, there is ample support in this record, based on the trial court's findings and analysis of the Jam. J. factors, for our determination that the trial court here did not err, let alone abuse its discretion.

C. Appellant's Other Contentions on Appeal [13] [14] Appellant's final two grounds for appeal are also unpersuasive. Appellant *530 contends that the trial court abused its discretion when it admitted the written reports of Dr. King's and Dr. Christiansen's court-mandated evaluations. Appellant argues that these reports were inadmissible hearsay because they were out-of-court statements and did not fall “within any recognized hearsay exception.” We disagree. In admitting the reports, Magistrate Judge Nooter clearly explained his reasoning:

All right, pursuant to 16–2315(e)(4) and over the father's objection, I will admit Government's Exhibit No. 2 with the clarification that information that was provided to Dr. King through what's been referred to as collateral sources or reports, are admissible not for the truth of the matters contained in those reports but solely for the basis of explaining Dr. King's opinions that he reached, although, of course, statements made by the father would be admissible for the truth of the matter because he is a party.

Magistrate Judge Nooter's ruling was entirely consistent with our case law recognizing that a court may admit expert reports containing hearsay, not for the underlying truth of the matter asserted, but rather as the basis for the experts' conclusions. 21 See In re Ca. S., 828 A.2d 184, 191 (D.C.2003) (citing In re Melton, 597 A.2d 892, 901–02 (D.C.1991) (en banc)). Magistrate Judge Nooter admitted the reports for precisely that purpose. On this record we cannot say that the trial court abused its discretion in admitting this evidence.

[15] [16] [17] Lastly, appellant contends that the trial court's finding of educational neglect was not supported by sufficient evidence. On review of a neglect determination, we view the evidence in the light most favorable to the government and draw every reasonable inference in its favor. Jam. J., supra, 825 A.2d at 910 (quoting In re E.H., 718 A.2d 162, 168–69 (D.C.1998)). Our review respects the prerogative of the trial court, as the finder of fact, to determine credibility and weigh the evidence. Jam. J, supra, 825 A.2d at 910 (quoting In re S.G., 581 A.2d 771, 775 (D.C.1990)).

Appellant contends that he initially received permission from the District of Columbia government to home-school his daughter and, therefore, any finding that he educationally neglected M.L. is negated. This argument mischaracterizes the record. Magistrate Judge Nooter based his neglect determination upon findings that appellant:

[E]ducationally neglected [M.L.] by removing her from public school and “home-schooled” her for a year and a half. [Appellant] admitted that [M.L.] is cognitively delayed and entitled to special education services. He also admitted that he has not been trained to teach special education students. Therefore, it is clear by a preponderance of the evidence that [appellant] was not qualified to provide home-schooling to [M.L.] and that she was deprived of education services that she needed for a year and a half.

The court's finding of educational neglect was not based upon appellant merely withdrawing *531 M.L. from school—which appellant had permission from the District of Columbia government to do—but rather upon appellant's failure to provide M.L. with appropriate educational instruction. As such, the court's finding of neglect rests upon sufficient evidence. 22

III. Conclusion

The trial court did not err in admitting the results of appellant's court-ordered mental examinations. The Council did not intend to bar the admissibility of court-ordered mental evaluations with its passage of the Improved Child Abuse Investigations Amendment Act of 2002, and we recognize that we are bound by the longstanding law of the District of Columbia—as stated by the D.C. Circuit's opinions in Taylor and Kendall—that psychological evaluations conducted solely for the purpose of subsequent testimony are not protected by doctor-patient privilege. Further, we discern no error in the trial court's decision to preclude appellant from calling M.L. to testify in his defense. Lastly, we hold that the trial court's neglect adjudication was supported by sufficient evidence, and that the evaluation reports of Dr. King and Dr. Christiansen were properly admitted. For the foregoing reasons, we affirm the order of the trial court finding M.L. in neglect.

So ordered.

Footnotes * At the time of argument, Associate Judge Noël Anketell Kramer was a member of the panel. Judge Kramer retired on May 1, 2011, and Judge Oberly replaced her on this panel. 1 D.C. L. No. 14–206, 49 D.C.Reg. 7815 (2002). 2 The government notes in its brief that although “there was some question at the beginning of the case as to whether R.Y. was M.L.'s biological father or if he was only acting in loco parentis, paternity testing concluded after the trial showed that he is her biological father.” 3 The day before the trial began, A.L. stipulated that M.L. was subjected to educational neglect by appellant, whom she contended she entrusted with making decisions concerning M.L.'s education, mental health, and medical care. Furthermore, A.L. agreed to cooperate with the government during and after the neglect hearing. A.L. did not file a brief on appeal. 4 Appellee District of Columbia requested, and appellee M.L. supported, the court order; appellant did not object. 5 Dr. King also conducted a psychological evaluation of M.L. 6 D.C.Code § 16–2315(e)(4). 7 We undertake the following statutory analysis in order to clarify the meaning of the current statute, and to avoid future litigation regarding this issue. 8 Compare D.C.Code § 16–2301(9)(C) (2001), with D.C.Code § 16–2301(9)(C) (2009 Supp.). 9 D.C.Code § 16–2301(9)(C) (2009 Supp.). 10 Improved Child Abuse Investigations Amendment Act of 2002, D.C. L. No. 14–206, 49 D.C.Reg. 7815 (2002). 11 The issue is also not discussed in the committee report recommending adoption of the amendment, nor is it discussed in any of the prior drafts of the legislation. See D.C. Council, Report on Bill 14–372 (May 29, 2002). 12 See Gause, supra, 6 A.3d at 1254; see also Grayson, supra, 15 A.3d at 254–55 (Ruiz, J., concurring in part and dissenting in part) (noting that we have previously declined to presume that the legislature intended a departure from past practice when “the legislative history was absolutely silent on the issue and the statute's purpose did not support it”). 13 See N.P., supra, 882 A.2d at 249 (“The petitions in this case did not meet this statutory standard. Dr. Gilliard testified about B.P.'s mental condition at the hearing, but the government's neglect petitions contained very little in the way of actual facts to support a subsection (9)(C) claim of neglect.”). 14 As both Taylor and Kendall were issued prior to February 1, 1971, when the D.C. Circuit remained the court of last resort for District of Columbia law, we recognize those decisions as binding precedent. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971). 15 In Kendall, the D.C. Circuit applied the Taylor rule in a civil context. Specifically, the D.C. Circuit determined that there was “no showing on this record as to whether or not [the psychiatrist]'s duties as admitting physician at St. Elizabeth's Hospital place him

in the category of an examining physician.” Kendall, supra, 236 F.2d at 683. Unlike the record in Kendall, the record here clearly demonstrates that Dr. King and Dr. Christiansen examined appellant solely for the purpose of subsequent testimony regarding the court-ordered examination. 16 The case law of our neighboring state of Maryland, as well as other states, provides a rule similar to the Taylor rule. See In re Alethea W., 130 Md.App. 635, 747 A.2d 736, 739 (2000) (determining that during a court-ordered mental evaluation “the professional's services are performed for the benefit of the court rather than the individual; any benefit to the individual is incidental. The purpose of the privilege—to aid in effective treatment—is not served”); see also People v. Lines, 13 Cal.3d 500, 119 Cal.Rptr. 225, 531 P.2d 793, 803 (1975) (en banc); Wiles v. Wiles, 264 Ga. 594, 448 S.E.2d 681, 682 (1994); State v. Mayhew, 170 N.W.2d 608, 615–16 (Iowa 1969). 17 Instead, the N.P. parent successfully challenged the admissibility of the examination on the ground that the neglect petition did not sufficiently allege that the child was neglected due to the parent's mental condition. N.P., supra, 882 A.2d at 248–49. 18 Even if this were a case where specific waiver was required, the government also convincingly argues that the trial court satisfied such a requirement by finding that appellant was told at the beginning of the mental evaluations that the information he provided would not be confidential and that he could refuse to answer any questions asked of him. 19 “Although expert testimony may not always be required, it will often be the best evidence” that testifying would create a risk of serious harm to the child. Jam. J., supra, 825 A.2d at 917. 20 Ultimately the parties agreed to offer the portion of Dr. King's report that detailed M.L.'s responses regarding the alleged sexual abuse, and the parties stipulated to its admissibility. We previously deemed this method to be an acceptable alternative in Jam. J., supra, 825 A.2d at 918 (“The court may also explore alternatives to taking testimony from the child that would meet the parent's needs, such as admitting evidence of out-of-court statements made by the child or stipulations.”). 21 This common-law evidentiary rule shares its principles with Rule 703 of the Federal Rules of Evidence, which provides: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. (Emphasis added). 22 Magistrate Judge Nooter's finding of neglect was based upon appellant's mental incapacity as well. The government contends that, because appellant does not challenge the sufficiency of the mental incapacity finding, appellant lacks standing to challenge the sufficiency of the second, independent ground of educational neglect. We held in In re Z.C., 813 A.2d 199, 202 (D.C.2002), that “without the potential for any remedial benefit from a decision by this court, [a parent] has no standing to bring this appeal.” However, even assuming that appellant retains standing to challenge the sufficiency of the evidence, we determine that the evidence of neglect was sufficient on this record. Therefore, we need not determine whether appellant lacks standing.

55 A.3d 389 District of Columbia Court of Appeals.

Douglas NELSON, Appellant, v. UNITED STATES, Appellee.

Nos. 10–CF–1227, 10–CF–1228. | Submitted Sept. 27, 2012. | Decided Nov. 1, 2012.

Synopsis Background: Defendant was convicted in the Superior Court, Anthony Epstein, J., of unlawful distribution of cocaine, possession of drug paraphernalia, possession of marijuana, carrying a pistol without a license, possession of an unregistered firearm, possession of unregistered ammunition, and commission of offenses during release, and he appealed.

Holdings: The Court of Appeals held that:

[1] trial court did not abuse its discretion by admitting the lay witness testimony of officer, and

[2] it was plain error for trial judge to instruct jury that operability of the weapon was not element of the offense of carrying a pistol without a license.

Affirmed in part, reversed in part, and remanded.

Attorneys and Law Firms

*391 Matthew C. Leefer, Boonsboro, for appellant.

Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the case was submitted, and Elizabeth Trosman, Lara W. Worm, Kenya K. Davis, and Sharon A. Sprague, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and PRYOR, Senior Judge.

Opinion

PER CURIAM:

In this consolidated appeal, appellant Douglas Nelson appeals his convictions stemming from two separate trials. In the first trial, appellant was convicted of unlawful distribution of cocaine, in violation of D.C.Code § 48–904.01(a)(1) (2001); and possession of drug paraphernalia (“PDP”), in violation of D.C.Code § 48–1103(a) (2007). On appeal, appellant argues that he was prejudiced by the trial court's admission of “effectively expert testimony” from an arresting officer, who was called as a lay witness, regarding the use of scales for weighing narcotics. Appellant also claims that his counsel was unduly restricted from examining another arresting officer as to his possible bias. In the second trial, appellant was convicted of possession of marijuana, in violation of D.C.Code § 48–904.01(d)(1) (2001); carrying a pistol without a license (“CPWL”), in violation of D.C.Code § 22–4504(a) (2001); possession of an unregistered firearm, in violation of D.C.Code § 7–2502.01 (2001); possession of unregistered ammunition, in violation of D.C.Code § 7–2506.01(3) (2001); and commission of offenses during release, in violation of D.C.Code § 23–1328(a)(1) (2001). On appeal, appellant argues that his CPWL conviction should be reversed

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Nelson v. U.S., 55 A.3d 389 (2012) because there was insufficient evidence to show that the pistol was operable, and even if the evidence was sufficient, the trial judge committed plain error by failing to instruct the jury that operability was an essential element of that offense. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

An undercover Metropolitan Police Department (“MPD”) officer purchased crack cocaine from appellant, who was subsequently arrested and positively identified by undercover officers. At trial, Officer James Craig, one of the arresting officers, testified that a small scale was seized from appellant. The record also reflects that Officer Craig's experience as a police officer includes over twelve years of service in the MPD. During that time, he completed approximately sixteen week-long training courses in narcotics, and took part in “several thousand” narcotics-related arrests. Over appellant's objections, Officer Craig was allowed to testify that, in his experience, scales like the one seized from appellant are often used for “weighing narcotics.” Given his experience, the trial judge permitted this testimony on the basis that “it naturally fits in with why [the scale] was ... seized.”

During cross-examination of Officer David Smith, another arresting officer, appellant's counsel attempted to elicit testimony showing potential bias; appellant's theory was that Officer Smith's desire for a transfer or promotion motivated his decision *392 to make this arrest. However, Officer Smith testified that he did not rely on this arrest in his application for a transfer. After further questioning in this regard, the trial judge precluded further questions on the subject. However, other cross examination was permitted.

Prior to appellant's second trial, officers observed appellant driving a Buick sedan with Maryland tags, which the officers recognized were generally issued to larger vehicles. The officers directed appellant to stop, then approached his vehicle. Appellant produced “a type of identification the officers had never seen before” and orally claimed diplomatic immunity. Noticing that appellant's identification did not appear to be authentic, the officers returned to their vehicle and confirmed that the name on the identification did not match any known diplomat. When the officers again approached appellant's vehicle, appellant rolled up the windows, began playing music loudly, and ignored the orders of the officers. When additional officers arrived on the scene, appellant continued to ignore the orders of the officers. When appellant rolled down his window to speak to an officer, one of the officers was able to reach through the window and grab appellant's arm. Appellant then stated that he had a gun; a second officer reached through the passenger side of the vehicle and confirmed that appellant had a revolver; a third officer broke through the driver's side rear window to help restrain appellant; and a fourth officer was able to take the revolver from the waist band of appellant's pants. The revolver was loaded with six rounds of ammunition.

At appellant's second trial, appellant did not contest the issue of operability. Neither party objected to the trial judge's instruction to the jury regarding the offense of CPWL, in which the term “firearm” was defined as “a weapon regardless of operability, which will expel a bullet by the action of an explosive.” Although at the time of trial the operability requirement had been removed from the offense of CPWL, at the time appellant was arrested the offense required proof that the weapon was operable.

II. The First Trial

[1] [2] [3] We review the trial court's admission of lay witness opinion testimony for abuse of discretion. Bedney v. United States, 684 A.2d 759, 766 (D.C.1996). Non-expert witnesses usually provide testimony that is not in the form of an opinion at all, but rather, is “simply part of [a] narrative of [their] own role in the events” leading up to an arrest. Id. at 767. However, non-expert witnesses may also express opinions “as long as those opinions are based on the witness' own observation of events and are helpful to the jury.” Carter v. United States, 614 A.2d 913, 919 (D.C.1992) (citation omitted). “Whether an opinion is ‘helpful to the jury’ and hence admissible is a question entrusted to the sound discretion of the trial court.” Id.

[4] Officer Craig's testimony that “[b]ased on [his] experience these scales are used for—in these scenarios, weighing narcotics” does not amount to the expression of an expert opinion, as appellant alleges, but rather was simply part of the officer's narrative of his own role in the arrest and, as the trial judge recognized, “naturally fits in with why [the scale] was ... seized.” This testimony was based on Officer Craig's own observations and experience as a police officer. That the judge found that the officer's statement would be helpful to the jury in understanding why the scale was seized was not an abuse of discretion. We conclude that appellant *393 has failed to show that the trial court abused its discretion by admitting the lay witness testimony of Officer Craig.

[5] [6] [7] [8] “We review the trial court's rulings placing limitations on cross-examination for an abuse of discretion.” Bennett v. United States, 876 A.2d 623, 632 (D.C.2005) (citing Roundtree v. United States, 581 A.2d 315, 323 (D.C.1990)). “Although the opportunity to cross-examine witnesses regarding potential bias is inherent in the Sixth Amendment right to confrontation,” it is not without limits, “[as] the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Van Ness v. United States, 568 A.2d 1079, 1084 (D.C.1990) (internal quotation marks and citations omitted). “So long as some ‘meaningful degree of cross-examination [has been] allowed in the first instance,’ ... the requirements of the Sixth Amendment are deemed to have been satisfied.” Id. Thereafter, “it is within the discretion of the trial court to limit cross-examination to prevent inquiry into matters having little relevance or probative value.” Id. (citations omitted).

[9] We conclude that appellant has failed to show that the trial court abused its discretion by curtailing appellant's questioning of Officer Smith for potential bias. In particular, appellant has not shown that he was denied the opportunity to cross-examine Officer Smith on this theory. Nor has appellant demonstrated how, without a factual foundation for this line of questioning, the preclusion of further examination of Officer Smith's potential bias prejudiced him at trial.

III. The Second Trial

[10] [11] [12] We turn now to the issue of operability. Operability of a weapon can be established either “by direct evidence or [by] circumstantial evidence.” Price v. United States, 813 A.2d 169, 173 (D.C.2002) (citation omitted). A gun need not be test fired by police to prove operability. Morrison v. United States, 417 A.2d 409, 412–13 (D.C.1980). Operability can be inferred where appellant “affirmatively display[s] a belief that his weapon [i]s operable.” Price, supra, 813 A.2d at 173; see also Peterson v. United States, 657 A.2d 756, 763 (D.C.1995). We concluded in Key v. United States, 587 A.2d 1072, 1074 (D.C.1991), that operability was established where, in addition to testimony that the weapon was test fired, the evidence included “the testimony of the police officers that the gun was fully loaded with live ammunition when recovered.”

[13] The evidence presented at trial shows that appellant failed in his bizarre attempts to dismiss the police officers, first by claiming diplomatic immunity, and then by choosing to ignore the police officers' orders while he blared music from inside of his vehicle. Once appellant opened his window and the police officers were able to reach him, appellant announced that he was carrying a gun. The revolver that the police officers seized from the waist band of appellant's pants was fully loaded. We conclude, based on the totality of these circumstances, that there was legally sufficient evidence to submit this case to the jury.

Where, as here, appellant fails to object to the trial judge's instruction to the jury, our review of the instruction is for plain error. See, e.g., Peterson, supra, 657 A.2d at 762; Green v. United States, 948 A.2d 554, 558–59 (D.C.2008) (citing United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). To *394 prevail under plain error review, an appellant must show that the trial court's instruction was “(1) error, (2) that is plain or obvious, (3) that affected the appellant's substantial rights, and (4) that seriously affected the fairness, integrity or public reputation of judicial proceedings.” Green, supra, 948 A.2d at 559 (citations omitted). In this case, both parties agree that the instruction given was improper, and as such, that the trial court committed an error that was plain, satisfying the first two prongs of the plain error standard.

[14] It is also not disputed that at the time this case was tried operability of the weapon was an element of the offense to be proven by the government. The trial judge instructed that it was not. Critically, this erroneous instruction took away the government's burden of proof on an essential element of the offense. Cf. Myers v. United States, 56 A.3d 1148, 2012 WL 4892846 (D.C.2012). Consistent with the third prong of the plain error standard, we conclude that, in the circumstances of this case, there is a reasonable probability of a different outcome if the jury had been properly instructed, and as to the fourth prong, our conclusion supports our responsibility to protect the fairness of judicial proceedings. See generally Perry v. United States, 36 A.3d 799 (D.C.2011).

This case is somewhat unusual because, although we find the evidence sufficient, we conclude the instruction to the jury was significantly erroneous so as to satisfy the plain error standard. Accordingly, we vacate only appellant's CPWL conviction and conclude that appellant is entitled to a new trial. See Greene v. Massey, 437 U.S. 19, 25–26, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

Accordingly, the judgments of the trial court are hereby

Affirmed in part, reversed in part, and remanded for further proceedings.

75 A.3d 157 District of Columbia Court of Appeals.

Lindo Omar CASTILLO, Appellant, v. UNITED STATES, Appellee.

No. 12–CM–161. | Submitted June 26, 2013. | Decided Aug. 29, 2013.

Synopsis Background: Defendant was convicted after a bench trial in the Superior Court, District of Columbia, Truman A. Morrison III, J., of misdemeanor sexual abuse of a minor. He appealed.

Holdings: The Court of Appeals, Oberly, Associate Judge, held that:

[1] alleged sexual assault and witnessing such assault could be serious enough to cause a state of nervous excitement in 14- year-old victim and eyewitness; but

[2] record could not support a determination that statements victim and eyewitness to police officers about the alleged assault were made spontaneously and without reflection; and

[3] error in admission of the statements under the exception to the hearsay rule for excited utterances was not harmless.

Reversed.

Attorneys and Law Firms

*159 James Klein, Alice Wang, Fleming Terrell, and Jonathan W. Anderson, Public Defender Service, were on the brief for appellant.

Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Eric Zwicker and Kristina L. Ament, Assistant United States Attorneys, were on the brief for appellee.

Before GLICKMAN and OBERLY, Associate Judges, and NEWMAN, Senior Judge.

Opinion

OBERLY, Associate Judge:

Appellant Lindo Omar Castillo was convicted of misdemeanor sexual abuse of a minor when he touched the breast of his fourteen-year-old stepdaughter, E.M. 1 On appeal, appellant contends that the trial court committed reversible error by admitting the statements of E.M. and her brother under the spontaneous utterance exception to the hearsay rule. We agree and reverse.

I. Background

At two o'clock in the morning on December 25, 2010, Francisco Martinez called 911 to report that he had witnessed “something inappropriate” between appellant and Martinez's fourteen-year-old sister, E.M. Sometime after the call, police responded to E.M.'s home at 1021 Lamont Street, Northwest, Washington, D.C., where she resided with her mother and appellant. Crying and appearing “hysterical” and “upset,” E.M. told Officers Diane Durham and Jose Gonzalez that her stepfather had grabbed her breast. Martinez also reported to Officer Gonzalez that he had observed appellant touch his sister's breast. At trial, however, both siblings testified that they recollected little from the December 25th incident, claiming to have been intoxicated.

The evidence against appellant consisted exclusively of three accusations admitted into evidence under the spontaneous utterance exception to the hearsay rule: (1) E.M.'s report to Officer Durham; (2) E.M.'s report to Officer Gonzalez; and (3) Martinez's report to Officer Gonzalez.

*160 A. Officer Durham's Testimony

Officer Durham testified that she had been working a shift that started at 9 p.m. on December 24, 2010, and ended at 6 a.m. the following morning. Although she could not remember what time she arrived at E.M.'s residence, she testified that she responded within two minutes of receiving “a run from the dispatcher.” According to Officer Durham, Martinez was “calm [and] normal” when she arrived at the house. E.M., however, “was very upset. She was crying. She was hysterical.”

At this point, the government sought to introduce E.M.'s hearsay statements by probing, “what did [E.M.] tell you?” In response to appellant's objection, the government argued that “this is clearly an excited utterance.... [because Officer Durham] stated [that E.M.] was hysterical. [Officer Durham] arrived within minutes of the [dispatch].” The trial court sustained appellant's objection because “[t]here has to be some temporal relationship between the state of excitement” and the alleged incident.

Officer Durham could not testify to an “exact time that [the incident] happened because [E.M.] didn't give me the exact time.” To narrow down a time frame, the government asked Officer Durham whether she “learn[ed] from the complainant what day the alleged incident took place.” Officer Durham responded that it had happened on the night she “received ... the assignment, the 25th.” The government again sought to introduce E.M.'s statements, but appellant objected and argued that the temporal connection remained unsatisfied: “[A]ll we know now is ... [that] according to the witness [,] there was an incident. And at the time the police officer arrived, sometime thereafter, the witness was upset and hysterical.” Appellant added, “there is no evidence that ... her hysteria is a result of this incident.” Shifting its focus from whether there was a temporal connection between the event and E.M.'s statement to whether there was a causal connection, the trial court then instructed the government, “[t]hat [is] the link you need to make.”

To establish the causal link, the government elicited from Officer Durham that “[E.M.] was upset because she had a[n] incident that happened with her stepfather[,] the same incident that [Officer Durham] respond[ed] to the call for.” Appellant objected that Officer Durham was speculating, and the trial court decided to “provisionally hear more detail” and allow the government to lay a foundation. As permitted by this ruling, the prosecutor then asked Officer Durham what E.M. said while she was “hysterical,” and Officer Durham replied, “[E.M.] stated to me that she was in the kitchen and her stepfather grabbed her breasts. Her brother saw it. And the stepfather ran out the rear door of the kitchen. And she continued to cry, and speak a little Spanish, and I just continued to try to calm her down [un]til[ ] we could get some translators.” The trial court overruled appellant's objection and received E.M.'s report to Officer Durham as a spontaneous utterance.

B. Officer Gonzalez's testimony

Officer Gonzalez also testified as the government's witness. During his 9 p.m. to 6 a.m. shift, Officer Gonzalez reported to E.M.'s residence because he “was the only Spanish-speaking officer in the 3rd District” and was needed as a translator. Officer

Gonzalez could not specify when he arrived at the house, except to note that it was before the arrival of another officer (not Officer Durham) who had responded to the scene.

1. E.M.'s report to Officer Gonzalez

When Officer Gonzalez arrived at the house, he first spoke with E.M.'s mother *161 and then spoke with E.M. sometime in the “early morning ... hours. I don't remember exactly what time it was.” He remained in the house “for about a good several hours.” On direct examination, Officer Gonzalez testified that “[E.M.] was hysterical at the time inside the house. She was really upset and crying. And she was basically telling me[,] Gonzalez, Gonzalez, I can't believe this is happening to me.” 2 Officer Gonzalez then told her to calm down. When asked if E.M. explained why she was upset, Officer Gonzalez responded, “[S]he was upset because ... her stepfather had touched her breast.”

On cross-examination, defense counsel elicited from Officer Gonzalez that E.M. reported the touching only after she had calmed down. “Before [Officer Gonzalez] had a conversation with [E.M.] about the details” of what happened, he “calmed her down.” Although E.M. continued to cry, “she was actually calmed down” at the time she reported appellant's conduct to Officer Gonzalez. On redirect, however, Officer Gonzalez explained that when E.M. told him “I can [not] believe this is happening to me,” he said, “calm down, what happened?” “Right at that time,” E.M. told Officer Gonzalez that “her stepfather had touched her breast.” According to Officer Gonzalez, these statements were made in one uninterrupted conversation.

2. Martinez's report to Officer Gonzalez

On direct examination, Officer Gonzalez also described his interaction with Martinez. When asked how Martinez had appeared, Officer Gonzalez stated: “[Martinez] was really upset. When I first got on the scene, he was constantly ... moving side by side inside the house.... [Martinez] told [another] officer that he broke the window because he was upset about what he observed in the kitchen.” The government then sought to elicit from Officer Gonzalez statements that Martinez had made about what he had observed. Over objection, the trial court allowed Officer Gonzalez to respond that Martinez had “stated that he observed his stepfather touch his sister's breast in the kitchen and that's why he was upset.”

On cross-examination, Officer Gonzalez testified that “at the time ... I told [Martinez] to calm down and even though he was upset ... he calmed down.” Martinez remained crying, but “he was [not] screaming like he was when [Gonzalez] first came into the house.” Officer Gonzalez further acknowledged that Martinez “was able to calmly tell [Gonzalez] what happened.” On redirect, Officer Gonzalez testified that Martinez made the statement about ten minutes after pacing around and screaming and that Martinez “was screaming ... to everyone that ... he was upset because he observed ... his stepfather touch [ing] his sister's breast.”

C. The Trial Court's Findings and Ruling

The trial court credited both Officer Durham's testimony and Officer Gonzalez's testimony. Addressing the discrepancy between Officer Durham's account of Martinez's demeanor—he was “calm”—and Officer Gonzalez's account—he was “really upset”— the trial court did not doubt its ability to credit Officer Durham because “we don't know when she got there” and whether it was before or after Officer Gonzalez. The trial court reaffirmed its earlier ruling receiving E.M.'s statement to Officer Durham as an excited utterance.

*162 The trial court likewise concluded that Officer Gonzalez was a credible witness, finding his testimony on direct examination, cross-examination, and redirect examination to “coexist with each other.” The trial court reconciled the differences

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Castillo v. U.S., 75 A.3d 157 (2013) in Officer Gonzalez's testimony on cross-examination and on redirect, finding that (1) his testimony “in its entirety” was consistent, and (2) “in the context of those fast-moving events ... references to people being calm on cross-examination were kind of relative statements,” and Officer Gonzalez likely meant “somewhat calmed down.” Finding that his description of the “emotional state” of E.M. and Martinez satisfied the spontaneous utterance criteria, the trial court concluded that “at the time when they fit the hearsay exception of the spontaneous utterance, both the brother and the complainant reported that the stepfather grabbed the child's breast.” The trial court made no findings on the temporal nexus between the alleged event and the various statements.

In total, the trial court admitted three statements as excited utterances: (1) E.M.'s report to Officer Durham, “the essence of the words, ‘He grabbed my breast and he left afterwards,’ ” (2) E.M.'s report to Officer Gonzalez “that the stepfather grabbed the child's breast,” and (3) Martinez's report to Officer Gonzalez “that the stepfather grabbed the child's breast.” Relying on these statements, the trial court found appellant guilty of the charge beyond a reasonable doubt. Appellant timely appealed.

II. Analysis

Appellant contends that the trial court incorrectly admitted E.M.'s and Martinez's out-of-court statements as spontaneous utterances because the government adduced insufficient evidence to show that (1) the siblings were “in the state of nervous excitement necessary for a spontaneous utterance”; and (2) their declarations were made “within a short enough time of the alleged touching to preclude reflection.”

[1] [2] [3] [4] “ ‘Because the decision whether a statement is admissible as a spontaneous utterance depends on the particular facts of each case and is thus a discretionary matter,’ ” we review such a decision for an abuse of discretion. In re L.L., 974 A.2d 859, 862 (D.C.2009) (quoting Brisbon v. United States, 894 A.2d 1121, 1128 (D.C.2006)). The underlying factual findings supporting “the decision whether to admit or exclude the proffered statement” are reviewed under the clearly erroneous standard. Odemns v. United States, 901 A.2d 770, 776 (D.C.2006). A trial court has the legal responsibility “to examine the testimony and determine whether the proper foundation has been laid for the exercise of discretion as to its admission.” Id. at 775–76 (internal quotation marks omitted). Therefore, a trial court abuses its discretion when “it rests its conclusions on incorrect legal standards” or “the stated reasons do not rest upon a sufficient factual predicate.” In re J.D.C., 594 A.2d 70, 75 (D.C.1991) (alteration and internal quotation marks omitted).

A. The Hearsay Exception for Excited Utterances

[5] [6] If a party seeks to admit an out-of-court statement under the excited utterance exception to the hearsay rule, the statement must be “a spontaneous declaration, not only tending to explain the act or occurrence with which it is connected but also indicating a spontaneous utterance of a thought while under the influence of that act or occurrence, with no opportunity for premeditation or deliberation.” Brown v. United States, 27 A.3d 127, 131 (D.C.2011) (internal quotation marks omitted). For a *163 hearsay statement to be admitted as an excited utterance, there must be:

Id. (internal quotation marks omitted).

[7] [8] The rationale underlying the exception is that the “utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Castillo v. U.S., 75 A.3d 157 (2013) reasoned reflection,” and thus the utterance is considered “particularly trustworthy.” Odemns, 901 A.2d at 778 (emphasis and internal quotation marks omitted). Accordingly, in order “to protect litigants from judgments based on unreliable second-hand evidence which is not subject to cross-examination,” it is important “that the declaration was made within a reasonably short period of time after the occurrence so as to assure that the declarant has not reflected upon her statement or premeditated or constructed it.” Id. at 777 (alterations, emphasis, and internal quotation marks omitted). “[S]pontaneity and lack of opportunity for reflection constitute the key elements,” and “rote recitations that the declarant was upset or excited or afraid” as a result of a startling event will not, by themselves, meet the requirements of an excited utterance. Id.

[9] In this case, the alleged sexual assault—and witnessing such an assault—certainly could be serious enough to cause a state of nervous excitement in the siblings. See Williams v. United States, 859 A.2d 130, 140 (D.C.2004) ( “There can be no doubt that a sexual assault qualifies as [a] serious occurrence.”). And we are willing to assume, based on the testimony that the trial court credited, that E.M. was in a state of nervous excitement caused by the alleged groping when she made the statements to Officers Durham and Gonzalez. 3 See Smith v. United States, 666 A.2d 1216, 1222 (D.C.1995) (“If the evidence suggests that the declarant was highly distraught and in shock at the time the statement was uttered, the requisite element that the declarant be in a state of nervous excitement is satisfied.”) (alteration and internal quotation marks omitted). What is missing from the record, however, is evidence that E.M. and Martinez made their statements within a “reasonably short period of time after the occurrence so as to assure that [they] ha[d] not reflected upon [their] statement[s] or premeditated or constructed [them].” Brown, 27 A.3d at 131 (internal quotation marks omitted).

[10] The trial court was aware that a “temporal relationship” between the event and the statement was necessary, initially sustaining appellant's objection because *164 the government had shown only that E.M. was hysterical: “[I]f [it] is [the government's] contention that time does [not] matter, [then] I sustain the objection.” For whatever reason, the court retreated from this position, ultimately satisfied that the government had established a causal connection between E.M.'s hysteria and her statements. The record in this case, however, makes it impossible to discern the temporal relationship between the groping and E.M.'s and Martinez's statements to the police and therefore does not permit the conclusion that the statements were made spontaneously and without reflection.

[11] [12] [13] “While the time element is not controlling, it is of great significance.” Odemns, 901 A.2d at 778 (internal quotation marks omitted). And although there is no “inflexible rule as to the length of interval” between the event and the utterance, Brown, 27 A.3d at 133 (internal quotation marks omitted), there must be some evidence from which a finder of fact can reasonably infer that the statement was made within a reasonably short period of time after the startling event. The evidence may be circumstantial, rather than direct. See id. (inferring reasonable time because the carpet squished with blood and the victim did not bleed out despite his gaping wounds); Lewis v. United States, 938 A.2d 771, 774–75, 782 (D.C.2007) (inferring reasonable period of time because victim was bleeding and police responded to the scene within minutes after receiving a radio run).

Neither Officer Durham nor Officer Gonzalez knew when the alleged groping had occurred. Officer Durham stated that it happened on the night she “received ... the assignment, the 25th,” but she was unable to further specify the timing. Though we do not mean to diminish the seriousness of the alleged incident, it was relatively minor compared with, for example, a gunshot wound, and thus we would be speculating if we inferred that it occurred close to the time Martinez called 911 at 2 a.m. 4 Based on Officer Durham's testimony and the timing of the 911 call, we are left with a reasonable inference that the assault occurred sometime between 12 a.m. and 2 a.m. E.M.'s and Martinez's statements were made sometime after that, when Officers Durham and Gonzalez arrived on the scene. Only Officer Durham gave an estimate of when she arrived—within a few minutes of receiving the radio run—while Officer Gonzalez did not know when he arrived. Both Officers Durham and Gonzalez testified that other officers were already on the scene when they each arrived. Officer Durham did not specify when, after she arrived, she spoke with E.M., stating only that she had had an “opportunity to speak with her.” Officer Gonzalez testified that he first spoke with E.M.'s mother and then spoke with E.M. sometime in the “early morning ... hours.”

Here, we have a two-hour time span, at least, in which the event could have occurred and the statements could have been made, leaving plenty of time for reflection. Although E.M. was apparently “crying” and “hysterical” both when Officer Durham

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Castillo v. U.S., 75 A.3d 157 (2013) spoke with her and when Officer Gonzalez spoke with her, she could just as likely have “become distraught by reliving a traumatic experience,” and that would mean “she ha[d] reflected on the event” and “revived bad memories,” L.L., 974 A.2d at 864 (internal quotation marks omitted), not that she was still “under the *165 spell” of the event. Odemns, 901 A.2d at 779 (internal quotation marks omitted).

Rarely, if ever, have we upheld the admission of statements made more than one hour after the alleged incident, unless the declarant was a young child, see Odemns, 901 A.2d at 778–79 (“Statements made one hour after the incident, on the other hand, are admitted when, and presumably only when, ‘the age and condition of the declarant support spontaneity.’ ”) (quoting Alston v. United States, 462 A.2d 1122, 1127 (D.C.1983)); Williams, 859 A.2d at 140 (upholding admission of five-year-old's statement made “within a few hours” of being sexually abused), or the incident was especially serious, see Harris v. United States, 373 A.2d 590, 593 (D.C.1977) (upholding admission of dying man's statements made two hours after the shooting because he was “suffering from several gun shot wounds ... his blood pressure was zero ... he was in a great deal of pain, and ... it was an effort for him to talk”).

[14] The uncertainty of timing is particularly important to the excited utterance inquiry in this case because the triggering event was a relatively minor assault. The seriousness of the startling event is relevant to the determination of whether the utterance occurred within a reasonably short period of time such that it was made spontaneously and without reflection. See Odemns, 901 A.2d at 781 (distinguishing Harris, 373 A.2d at 593, a case with “extraordinary circumstances” surrounding the admission of statements made two hours after the declarant had suffered multiple serious gunshot wounds); Brown, 27 A.3d at 134 (“[T]he evidence supports an inference that his utterances when his neighbors found him barely conscious would not likely have resulted from deliberation.”). An inappropriate sexual touching, while serious, is less traumatic than rape, gunshot wounds, threats of violence, or some other violent victimization, in which the declarant may be “under the influence of the startling event” for a longer period of time. Lewis, 938 A.2d at 775. Cases in which we have upheld the admission of hearsay statements under the excited utterance exception where no particular time frame had been established involved arguably more serious victimizations than the groping at issue here and, in many cases, included circumstantial evidence of the lapse of a reasonably short period of time. See Brown, 27 A.3d at 133 (declarant was shot and reasonable inference that “attack occurred closer to 5 p.m. (the time when Brown was found) than to noon” because “carpet squished with blood” and “Brown had not bled out despite his gaping wounds”); Simmons v. United States, 945 A.2d 1183, 1189 (D.C.2008) (declarant was shot and reasonable inference that “not many minutes had elapsed, because the shooting evidently occurred while [the witness] was inside the McDonald's restaurant for approximately fifteen minutes, and she met the declarant very soon after she left”); Lewis, 938 A.2d at 773, 782 (declarant was violently assaulted and “was bleeding from the head and face area” when the officer arrived within a few minutes of receiving the radio run).

In Odemns, we held that the admission of hearsay statements under the excited utterance exception was error where declarant “was subjected to a frightening armed robbery” because the statements were made “an hour before she was interviewed” and not “immediately upon the hurt received.” Odemns, 901 A.2d at 775 (internal quotation marks omitted). Moreover, we held, the adjectives used to describe the declarant's state of mind—“upset,” “excited,” “shaken,” “afraid”—“do not establish, or even significantly address, the element of spontaneity on which the theory *166 of this hearsay exception is based.” Id. at 781. If statements by an “upset,” “excited,” “shaken,” and “afraid” declarant made an hour after a frightening armed robbery do not meet the requirements of an excited utterance, we have trouble reaching the opposite conclusion with statements by an “upset” and “hysterical” declarant made as many as two or more hours after her stepfather grabbed her breast.

[15] We are even less convinced that Martinez's statement to Officer Gonzalez constituted an excited utterance. On the 911 call, Martinez sounded calm, explaining the incident coherently and clearly and deliberately answering the operator's questions. 5 When Officer Gonzalez saw him later after responding to the call and he appeared angry and screaming, it is more likely that he “became upset when [he] reflected on what [appellant] had done to [his sister]” and thus was not “under the fresh emotional impact of a startling event.” In re L.L., 974 A.2d at 863 (internal quotation marks omitted). The discrepancy between Officer Durham's and Officer Gonzalez's description of Martinez supports the conclusion that “several peaceful” moments passed between the event and his statements to Officer Gonzalez. Id.

The trial court no doubt thought carefully before admitting each statement as an excited utterance; indeed, a substantial portion of the trial was devoted to bench conferences discussing the admissibility of the statements. Nonetheless, the trial court's “stated reasons” for admitting the statements “do not rest upon a sufficient factual predicate,” and it was error to admit them. In re J.D.C., 594 A.2d at 75.

B. Harmless Error Analysis

[16] [17] Because the government cannot show that it is “highly probable” that the erroneously admitted statements did not contribute to the verdict, the trial court's error was not harmless. Odemns, 901 A.2d at 782. To conclude that an error is harmless, it must be “ ‘so inconsequential that it made no appreciable difference to the outcome.’ ” Id. (quoting In re Ty.B., 878 A.2d 1255, 1267 (D.C.2005)). The government's evidence against appellant consisted entirely of the three statements admitted as excited utterances. This is hardly a case where the error was “so inconsequential that it made no appreciable difference to the outcome.”

For the foregoing reasons, the judgment of the Superior Court is

Reversed.

Footnotes 1 D.C.Code § 22–3010.01 (Supp.2007). 2 Gonzalez had known E.M. and her mother casually because he had a part-time job at a nearby supermarket. 3 The trial court's ability to reconcile Officer Gonzalez's potentially inconsistent testimony by concluding that he likely meant “somewhat calmed down” when referring to E.M.'s and Martinez's emotional states does not strike us as clearly erroneous. As the trial court reasoned, “in the context of those fast-moving events ... references to people being calm on cross-examination were kind of relative statements.” For reasons explained later, we are not convinced that, when he spoke to Officer Gonzalez, Martinez was “under the fresh emotional impact of a startling event” as opposed to reflecting upon what he had seen earlier. In re L.L., 974 A.2d 859, 864 (D.C.2009) (internal quotation marks omitted). 4 In fact, Martinez did not call 911 from E.M.'s house, where the incident occurred, which tells us that the 911 call could not have been made immediately after Martinez observed the incident. 5 Although the 911 recording was admitted for impeachment purposes only, “a trial court may rely on trustworthy hearsay in ruling on questions of admissibility.” Roberson v. United States, 961 A.2d 1092, 1096 & n. 11 (D.C.2008) (applying Federal Rule of Evidence 104(a)); see also United States v. Woodfolk, 656 A.2d 1145, 1151 n. 16 (D.C.1995) (“The trial court was entitled to consider the declarant's tone and tenor of voice on the [911] tape recording in determining the issue of excited utterance.”).

74 A.3d 678 District of Columbia Court of Appeals.

Rahshawn KING & Christopher T. Holmes, Appellants, v. UNITED STATES, Appellee.

Nos. 10–CF–149, 10–CF–318. | Argued Sept. 13, 2012. | Decided Aug. 22, 2013.

Synopsis Background: Two defendants were convicted after a joint trial in the Superior Court, District of Columbia, Lynn Leibovitz, J., of armed carjacking, armed robbery, possession of a firearm during a crime of violence (PFCV), and other offense. One defendant was also convicted obstruction of justice and conspiracy to obstruct justice. Appeals followed.

Holdings: The Court of Appeals, Washington, C.J., held that:

[1] as a matter of first impression, opinions of police officers about the meaning of certain street lingo were admissible as lay testimony at a carjacking trial under a “process of reasoning” approach adopted by the Court of Appeals to distinguish between lay testimony and expert testimony;

[2] one defendant was not entitled to severance of the charges against him and codefendant from the obstruction charges against codefendant; and

[3] one defendant's two convictions for PFCV merged into one.

Affirmed and remanded with instruction.

Attorneys and Law Firms

*679 Sloan S.J. Johnston, for appellant King.

Donald Dworsky, for appellant Holmes.

Leslie Ann Gerardo, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, John P. Mannarino and Todd W. Gee, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, BLACKBURNE–RIGSBY, Associate Judge, and REID, Senior Judge.

Opinion

WASHINGTON, Chief Judge:

Appellants Rahshawn King and Christopher Holmes were convicted after a joint jury trial of carjacking and robbing James Nelson at gunpoint in southeast D.C. on October 24, 2008. In addition, Holmes was independently convicted of obstruction of justice and conspiring to obstruct justice based on phone calls he made from jail to Terrence Connor between January 10, 2009, and February 24, 2009.

On appeal, Holmes argues that the trial court erred in allowing a police officer and a detective to testify as lay witnesses to the meaning of certain “street lingo” used in the phone calls between himself and Connor. King argues that the trial court erred in failing to sever his armed carjacking and robbery charges from Holmes' obstruction of justice charges and also argues that his two convictions for possession of a firearm during a crime of violence (“PFCV”) should be merged. For the reasons stated below, we hold that the trial court did not err in allowing the police officers to offer lay opinion testimony on the meaning of certain street lingo and we reject King's contention that the trial court erred in allowing his carjacking and robbery counts to be joined with Holmes' obstruction count. However, we do agree that King's two PFCV counts merge and therefore, remand the case to the trial court so that one of King's two PFCV convictions can be vacated.

On October 24, 2008, King and Holmes pulled up in a car behind James Nelson as he was steps away from his car. King exited the car driven by Holmes and approached Nelson, demanding at gunpoint that Nelson hand over the car keys and $1,000 in gambling winnings that he held in his hand. Nelson did as demanded and King got into Nelson's car, driving away with Holmes following behind in his car. A police officer who was parked near the incident heard gunshots and saw Nelson and Holmes' cars driving away “bumper to bumper.” The officer began to follow the cars and a chase ensued, first by car, and then by foot once King abandoned the car and began running. King was apprehended, but Holmes, who escaped by car during the police car chase, was not apprehended until November 20, 2008.

Between January 10, 2009, and February 24, 2009, Holmes placed a series of calls to Terrence Connor from the District of Columbia jail where he was incarcerated. These calls were recorded and revealed that Holmes was conspiring with Connor to keep Nelson from “ratting and *680 shit.” Holmes was charged with obstruction of justice and conspiring to obstruct justice.

King and Holmes were charged with armed robbery; 1 armed carjacking; 2 unauthorized use of a vehicle (“UUV”); 3 fleeing from a law enforcement officer; 4 reckless driving; 5 and possession of a firearm during the commission of a crime of violence. 6 In addition, King was charged with two counts of destruction of property 7 and Holmes was charged with conspiracy to obstruct justice 8 and obstruction of justice. 9 King and Holmes were tried together before a jury. Both appellants filed motions to sever defendants and counts pursuant to Super. Ct.Crim. R. 8(b) and 14, but the motions were denied by the trial court on the basis that the obstruction of justice charge “followed logically upon and was the sequel to [the] underlying carjacking,” making the charges part of the “same transaction or occurrence.” During the trial, Detective Francis and United States Park Police Officer William Sepeck, who listened to 30 to 40 hours of Holmes' jail telephone calls, testified, over defense counsel's objection, as lay witnesses to the meaning of certain “street” terms used in the conversations between Holmes and Connor. On October 15, 2009, the jury returned verdicts of guilty as to all counts.

II.

[1] Appellant Holmes claims that the trial court abused its discretion in allowing the two police witnesses to testify as to the meaning of “street lingo” in Holmes' recorded phone calls with Connor. Specifically, Officer Sepeck testified that the term “gleezy” is a “street term for the gun named Glock,” and that in the context of Holmes and Connor's conversations, which were played to the jury, “40” meant a .40 caliber semiautomatic gun. 10 Detective Francis testified about the term “bagged” saying, “I've heard the kids talk about ... bagging somebody, robbing them, getting their stash, bagging their stash. Maybe that's it. Bagging means I got them. You know, it's like bragging about it.” 11 Officers Sepeck and Francis based their street lingo interpretations on their lengthy experience working on criminal investigations in southeast D.C. and speaking regularly about crime with young people in that community. At trial, Holmes' counsel objected to this foundation as insufficient to establish the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 King v. U.S., 74 A.3d 678 (2013) officers' competence to give an opinion. On appeal, Holmes contends that the officers inappropriately testified as lay witnesses because they did not have *681 the requisite personal experience with or knowledge of the street language, and were testifying about a specialized subject, beyond the ken of the average lay person. We review for abuse of discretion the admission or exclusion of evidence alleged to be in violation of Rule 701. 12 Sanders v. United States, 809 A.2d 584, 596 (D.C.2002).

Whether police officer testimony interpreting slang or jargon qualifies as lay or expert testimony is an issue of first impression for this court. Federal Rule of Evidence 701 provides that a lay witness's testimony in the form of opinions or inferences “is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” This court has allowed police officers to offer lay testimony about their observations of the criminal event in question and give lay opinions about the event in question based on their observation of similar events during their professional experience. See, e.g., Carter v. United States, 614 A.2d 913, 919 (D.C.1992) (narcotics officer allowed to testify as a lay witness that what he had seen from an observation post “led [him] to believe that a narcotic transaction had occurred”); Harris v. District of Columbia, 601 A.2d 21, 23 (D.C.1991) (officers properly testified as lay witnesses that “based on their experiences dealing with persons under the influence of drugs, they believed that [the defendant] was under the influence of some substance.”); Hill v. United States, 541 A.2d 1285, 1288 (D.C.1988) (allowing a police officer to testify as a lay witness about the general practice of the police department of which he was a member because it was “based on his personal knowledge”). Beyond these cases, however, we have given trial courts little guidance on when lay testimony becomes expert testimony, especially since Federal Rule of Evidence 701 was amended in 2000 to keep experts from testifying “in lay witness clothing.” 13 We seek here to clarify the line between lay and expert testimony and hold that the trial court properly admitted the officers' testimony as lay witness testimony since the witnesses based their opinions on their personal experiences and observations and used reasoning processes familiar to the average person in everyday life to reach their proffered opinion.

The majority of cases addressing the “fine” 14 line between police officers' expert and lay testimony have arisen in the context of drug transactions and drug code *682 interpretation. Courts have been reluctant to allow police officers to offer lay opinions about the meaning of drug slang or code words based on their past experience investigating drug crimes. These courts have broadly concluded that testifying on the basis of past professional experience is “specialized knowledge” appropriate only for expert testimony. 15 We find more force, however, in the Second Circuit's opinion in United States v. Garcia, 413 F.3d 201 (2nd Cir.2005), holding that “a court must focus on the reasoning process' by which a witness reached his proffered opinion.” Garcia, 413 F.3d at 215 (quoting 4 WEINSTEIN'S FEDERAL EVIDENCE § 701.03[1] ). In Garcia, an officer's opinion about the role of various drug conspirators depended on knowledge gained from his experience reviewing “thousands of intercepted conversations in the course of various narcotics investigations.” Id. at 216–17. The court held that this experience was “certainly outside the ken of the average person” and that the officer's testimony “that drug dealers generally used code words when referring to their illicit transactions” could not be lay testimony as it was not informed “by reasoning processes familiar to the average person in everyday life.” Id. at 216. Instead, the officer's “reasoning process depended ... on specialized training and experience.” Id. Applying Garcia's test, the drug code cases cited above are more appropriately interpreted as being limited to their facts, holding no more than past professional experience in a complex field, inaccessible to the average lay person and requiring specific training, like narcotics investigations, is “specialized knowledge.”

The Advisory Committee Note to the 2000 amendments to the Federal Rules of Evidence supports the Second Circuit's focus on the reasoning process to distinguish lay from expert testimony. The Notes explain that lay testimony is that which “results from a process of reasoning familiar in everyday life,” whereas “an expert's testimony results from a process of reasoning which can be mastered only by specialists in the field.” Fed.R.Evid. 701, advisory committee's note to 2000 amendment (quoting State v. Brown, 836 S.W.2d 530, 549 (Tenn.1992)).

[2] We adopt the Second Circuit's “process of reasoning” approach for distinguishing lay from expert testimony. We find that, per Garcia, the trial court did not abuse its discretion by allowing the two officers to testify as lay witnesses. The officers offered their opinions about the street lingo based on their personal experiences and observations interacting with youth in the

D.C. streets while investigating crimes. We are satisfied that a proper foundation was laid for the officers' opinion testimony because their opinions *683 were sufficiently grounded in perceptions gained through their personal experiences. In addition, the reasoning process the officers employed to interpret the street language was the everyday process of language acquisition. The officers did not use any special training or scientific or other specialized professional knowledge to form their opinions about the meaning of the language used by the individuals in this case.

The present case is analogous to the Fourth Circuit's decision in United States v. Perkins, 470 F.3d 150 (4th Cir.2006), where the court held that a police officer could give a lay opinion about the excessiveness of another officer's use of force based on his personal observations of other officers' use of force during his time as a police officer. The court held that because the observations were “common enough and require[d] such a limited amount of expertise ... they can, indeed, be deemed lay witness opinion[s].” Perkins, 470 F.3d at 156 (quoting United States v. VonWillie, 59 F.3d 922, 929 (9th Cir.1995)). Although the officer's professional experience in Perkins gave him the unique opportunity to regularly observe fellow officers using force, what ultimately made the testimony lay testimony was the fact that the officer's knowledge was formed through his simple, personal observations of human conduct in his every day work. 16 Here, Officer Sepeck and Detective Francis testified not only to knowledge acquired through basic reasoning processes, but knowledge acquired from personal experiences talking to people on the street that are accessible to an average person. Consequently, we affirm the trial court's admission of the officers' testimony and Holmes' conviction.

III.

[3] [4] Appellant King claims that the armed carjacking and other offenses that occurred on October 24, 2008, were improperly joined with Holmes' obstruction of justice offenses under Super. Ct.Crim. Rule 8(b). King contends that these charges shouldn't have been joined because they were not part of the “same act or transaction.” Specifically, King highlights the fact that the obstruction of justice offenses occurred months after the carjacking, that the obstruction of justice was not the inevitable result of the underlying crime, and that King did not know about or participate in the obstruction of justice, which was Holmes' independent action. Whether joinder is proper under Super. Ct. Crim. Rule 8 is a question of law which we review de novo. Ray v. United States, 472 A.2d 854, 857 (D.C.1984).

This court has previously addressed this specific issue and the case at hand presents no distinguishing facts. In Davis v. United States, 367 A.2d 1254 (D.C.1976), we held that joinder of counts in a multi-defendant prosecution is proper under Rule 8(b):

*684 (1) where the offenses are committed as a means to a specific common end, or where they are directed toward some shared goal; (2) where one offense logically leads to another; and (3) where the offenses are part of a common scheme or plan, involving the same place, a short period of time, and a similar modus operandi, so that there is necessarily a substantial overlap in proof of the various crimes and ‘it would be difficult to separate proof of one from the other.’

Davis, 367 A.2d at 1262 (internal citations omitted).

In Bush v. United States, 516 A.2d 186, 191 (D.C.1986), we specifically found joinder of a co-defendant's subsequent obstruction of justice charge to satisfy the second Davis prong because the underlying crime “logically leads” to the obstruction of justice offense, even though there was “no conspiracy ... embracing both the underlying crimes and the cover-up.” Even though the cover-up “was not the inevitable result of the commission of the underlying crimes,” we found the “cover-up surely was a sequel to those crimes.” Bush, 516 A.2d at 192; see also Sams v. United States, 721 A.2d 945 (D.C.1998) (same); Taylor v. United States, 603 A.2d 451 (D.C.1992) (holding the same as to a subsequent perjury charge).

King contends that the present case is not governed by Bush because, unlike the Bush appellant who was involved in the obstruction of justice, but not the underlying crime, King was involved in the armed carjacking and robbery, but not the obstruction of justice. This situation, he argues, makes joinder of claims far more prejudicial to his case. However, in Sams we

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 King v. U.S., 74 A.3d 678 (2013) found joinder to not be prejudicial, and thus appropriate, even though appellant had participated in the underlying assault, but not the obstruction of justice, which was independently effectuated by his co-defendant. Sams, 721 A.2d at 953–55. Consequently, we affirm the trial court's denial of King's Rule 8(b) severance motion.

IV.

[5] [6] Finally, King contends that his two PFCV convictions should be merged pursuant to Nixon v. United States, 730 A.2d 145 (D.C.1999). We agree. “[M]ultiple PFCV convictions will merge, even if the predicate felony offenses do not merge, if they arise out of a defendant's uninterrupted possession of a single weapon during a single act of violence.” Matthews v. United States, 892 A.2d 1100, 1106 (D.C.2006) (citing Nixon, 730 A.2d at 153). Here, King's PFCV convictions were based on his underlying carjacking and armed robbery felony convictions. These two felonies were effectuated by the same violent act at the same moment: King exited the Nissan, pointed a gun at Nelson and said “give that shit up,” at which point he took both Nelson's money and car keys and immediately drove off with both. Thus, we remand this case with an instruction to vacate one of King's two PFCV convictions.

For the foregoing reasons, the judgment of the trial court is hereby affirmed, except that we remand for the trial court to vacate King's conviction on one of the PFCV counts.

So ordered.

Footnotes 1 D.C.Code §§ 22–2801, –4502 (2001). 2 D.C.Code §§ 22–2803, –4502 (2001). 3 D.C.Code § 22–3215 (2001). 4 D.C.Code § 50–2201.05(b)(2) (2001). 5 D.C.Code § 50–2201.04(b) (2001). 6 D.C.Code § 22–4504(b) (2001). 7 D.C.Code § 22–303 (2001). 8 D.C.Code §§ 22–1805a, –2403, –722(a)(6) (2001). 9 D.C.Code § 22–722(a)(6) (2001). 10 Officer Sepeck also testified to the meaning of the term “hot” (“the fourth floor of the jail, which is for cooperators”), “kill” (“I've got you, no problem”), “bag” (“it could mean arrested”), “quap” (“money”), “kirk out” (“freak out”), “get-got” (“it could mean arrested”). 11 Detective Francis also testified to the definition of “UUV.” UUV is used in the recorded calls in the context of a conversation about how Connor needs to keep Nelson from ratting about the carjacking. Holmes says: “[D]ey can charge it as ah juvenile man, UUV....” 12 Although the Federal Rules of Evidence are inapplicable in the D.C. Superior Court and the D.C. Court of Appeals, Federal Rule of Evidence 701, regarding opinion testimony by lay witnesses, “states the law as it has developed in this jurisdiction.” S.W. GRAAE ET AL., THE LAW OF EVIDENCE IN THE DISTRICT OF COLUMBIA 7–1 (5th ed. 2012). 13 701 (c) was added as part of the 2000 amendments to the Federal Rules of Evidence to avoid “the risk that reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing.” Fed.R.Evid. 701 advisory committee's note to 2000 amendment. 14 See United States v. Perkins, 470 F.3d 150, 155 (4th Cir.2006) ( “[T]he line between lay opinion testimony under Rule 701 and expert testimony under Rule 702 ‘is a fine one.’ ” (quoting 3 STEPHEN A. SALTZBURG, MICHAEL M. MARTIN & DANIEL J. CAPRA, FEDERAL RULES OF EVIDENCE MANUAL 701–14 (9th ed. 2006))); United States v. Ayala–Pizarro, 407 F.3d 25, 28 (1st Cir.2005) (“The line between expert testimony under Fed.R.Evid. 702 ... and lay opinion testimony under Fed.R.Evid. 701 ... is not easy to draw.” (quoting United States v. Colon Osorio, 360 F.3d 48, 52–53 (1st Cir.2004))).

15 See, e.g., United States v. Smith, 640 F.3d 358, 365 (D.C.Cir.2011) (agent testifying about drug slang “based on his experience in other investigations and his experience as a narcotics investigator, as opposed to simply his personal perceptions in the case ... would have to satisfy Rule 702.”); United States v. Johnson, 617 F.3d 286, 293 (4th Cir.2010) (an officer's interpretation of wiretapped phone calls based on his “credentials and training, not his observations from the surveillance” did not qualify him to offer lay testimony); United States v. Wilson, 605 F.3d 985, 1026 (D.C.Cir.2010) (former drug dealer's testimony based on his previous dealing experience was “specialized”); United States v. York, 572 F.3d 415, 421–22 (7th Cir.2009) (“A law enforcement officer's understanding of the drug trade [such as the meaning of drug code words], which comes from that officer's prior experience policing illicit narcotics transactions, is ‘specialized knowledge’ within Rule 702.”); United States v. Villarman–Oviedo, 325 F.3d 1, 13 (1st Cir.2003) (officer's years of experience and training in narcotics investigations were “specialized knowledge”). 16 See also United States v. Hamaker, 455 F.3d 1316, 1331–32 (11th Cir.2006) (an FBI financial analyst who reviewed and summarized over seven thousand financial documents was not an expert witness even though “his expertise and the use of computer software may have made him more efficient” because he did not testify based on his financial expertise, but simply added and subtracted numbers and compared them “in a straightforward fashion”); United States v. Ayala–Pizarro, 407 F.3d 25, 29 (1st Cir.2005) (“[I]t require[d] no special expertise for [an officer] to conclude, based on his [past] observations, that places which sell drugs are often protected by people with weapons.”); United States v. Weaver, 281 F.3d 228, 231 (D.C.Cir.2002) (that the witness performed “routine computations and culling through of [cash register logs]” to arrive at his conclusions did not require him to be qualified as an expert).

59 A.3d 978 District of Columbia Court of Appeals.

Kisha BRIDGES, Appellant, v. Winfield W. CLARK, Appellee.

No. 11–CV–0862. | Argued Sept. 6, 2012. | Decided Jan. 24, 2013.

Synopsis Background: Residential landlord brought eviction action against tenant for nonpayment of rent. Tenant brought counterclaims for failing to fix various housing-code violations within a reasonable period of time. The Superior Court, Judith N. Macaluso, J., entered judgment on jury verdict in favor of landlord. Tenant appealed.

Holdings: The Court of Appeals, McLeese, J., held that:

[1] evidence supported tenant's request for jury instruction on the retaliation defense;

[2] tenant did not abandon or forfeit retaliation defense by failing to mention the defense in her opening statement or in her trial testimony;

[3] retaliation defense did not require direct testimony that landlord acted with a retaliatory motive;

[4] statement contained in affidavit that landlord submitted as an attachment to pretrial motion to dismiss was admissible as an adoptive admission of a party opponent;

[5] probative value of statement contained in affidavit was not substantially outweighed by danger of unfair prejudice; and

[6] improper exclusion of statement was not harmless.

Reversed and remanded.

Attorneys and Law Firms

*980 Christopher R. Kelly, with whom Peter C. Thomas, Conor Reidy, and Jonathan Porter, Washington, DC, were on the brief, for appellant.

Olekanma A. Ekekwe, Washington, DC, for appellee.

Before WASHINGTON, Chief Judge, McLEESE, Associate Judge, and BELSON, Senior Judge.

Opinion

*981 McLEESE, Associate Judge:

Appellee Winfield Clark brought an eviction action against appellant Kisha Bridges for nonpayment of rent, and Ms. Bridges brought counterclaims against Mr. Clark for failing to fix various housing-code violations within a reasonable period of time.

A jury rendered a verdict in favor of Mr. Clark. On appeal, Ms. Bridges argues that the trial court erred by refusing to instruct the jury on the defense of retaliation and by excluding as inadmissible hearsay an affidavit that Mr. Clark had submitted to the court as an attachment to his pretrial motion to dismiss. We agree with Ms. Bridges that both rulings were incorrect. We therefore reverse and remand for further proceedings.

In December 2006, Ms. Bridges and her family moved into a house that Ms. Bridges rented from Mr. Clark. Ms. Bridges's monthly rent ranged between $1600 and $1700. Ms. Bridges was responsible for paying a portion of the rent, in amounts ranging from $150 to $250 each month, and the D.C. Housing Authority paid the remainder.

In March 2010, Mr. Clark filed an action against Ms. Bridges seeking eviction and recovery of back rent. Ms. Bridges subsequently filed counterclaims seeking monetary and injunctive relief based on Mr. Clark's alleged failure to address housing- code violations within a reasonable period of time.

The case went to trial in 2011. At trial, Mr. Clark contended the following. Ms. Bridges was consistently late in paying her portion of the rent and was responsible for damage to the house. In addition, Ms. Bridges called housing inspectors about problems, rather than notifying Mr. Clark directly. The housing inspectors would then inform Mr. Clark of the need for repairs. Mr. Clark generally made all necessary repairs within the time required by the housing inspectors notices, even though he was often delayed in making repairs because Ms. Bridges limited his access to the house. Ms. Bridges failed to pay her portion of the rent for three months in 2010, and therefore owed Mr. Clark $453 in back rent.

Ms. Bridges provided a very different version of events. According to her, the condition of the house began to deteriorate in October 2007. Ms. Bridges found plaster damage in several rooms, water damage to the ceiling, and cracks in the kitchen floor. Mr. Clark failed to address these problems in response to her complaints, so Ms. Bridges filed a complaint with the D.C. Housing Authority. After the D.C. Housing Authority inspected the property, Mr. Clark fixed these problems in December 2007.

Numerous additional problems with the house arose in 2008 and 2009, including further water damage, mold, flooding, plumbing leaks, a rodent infestation, lack of heating, missing and loose floor tiles, and a malfunctioning sprinkler system. Ms. Bridges informed Mr. Clark about these problems as they arose and requested that he make the necessary repairs, but he did not respond to her requests. Consequently, Ms. Bridges filed complaints with various D.C. housing agencies, including the D.C. Housing Authority, the Department of Consumer and Regulatory Affairs, and the Department of Health, Bureau of Community Hygiene Rodent Control Division. These housing agencies issued numerous notices to Mr. Clark regarding the violations, and Mr. Clark generally made the necessary repairs in response to the notices.

*982 Finally, in early 2010, the awning of the house collapsed. Ms. Bridges responded by filing a complaint with the D.C. Housing Authority. The D.C. Housing Authority issued an emergency violation notice to Mr. Clark, requiring him to make repairs within twenty-four hours. Mr. Clark fixed the awning within the required time period.

At the close of the trial, the jury found in favor of Mr. Clark both on his claims and on Ms. Bridges's counterclaims. The jury also determined that Ms. Bridges owed Mr. Clark $453 in unpaid rent. The trial court entered a judgment for possession in favor of Mr. Clark, but subsequently permitted Ms. Bridges to redeem her tenancy and maintain possession of the property by paying Mr. Clark $453.

II.

[1] [2] Ms. Bridges first argues that the trial court erred by refusing to instruct the jury on the defense of retaliation. We agree. 1

It is unlawful for a landlord to take retaliatory action against a tenant who exercises certain legal rights, including the right to complain to the government about violations of housing regulations. D.C.Code § 42–3505.02(a), (b)(2) (2010). When a landlord sues a tenant for possession of rental property, the tenant is entitled to judgment if the suit has been brought in retaliation for the exercise of such legal rights. D.C.Code § 42–3505.02(b). If the landlord's suit is initiated within six months after the tenant has exercised such legal rights, the suit is presumed to be retaliatory. Id. The tenant is therefore entitled to judgment unless the landlord presents clear and convincing evidence to rebut the presumption. Id. 2

In the present case, Ms. Bridges first asserted retaliation as a defense in her answer to the complaint. Ms. Bridges reiterated the defense in her amended answer. *983 Mr. Clark responded to the defense in his pretrial motion to dismiss, arguing that he filed for eviction not to retaliate against Ms. Bridges but rather because Ms. Bridges had damaged the property and was not paying her portion of the rent. In the joint pretrial statement, the parties stated that Ms. Bridges was asserting a retaliation defense. The joint pretrial statement also contained requests by Ms. Bridges for both a jury instruction and a special-verdict form to address the retaliation defense.

Counsel for Ms. Bridges did not refer to the retaliation defense in opening statement. Nor did Ms. Bridges refer explicitly to the retaliation defense during her trial testimony. Ms. Bridges did testify, however, that on September 22, 2009, and March 8, 2010, she filed written complaints with the D.C. Housing Authority concerning ongoing housing violations. Both written complaints were admitted into evidence. The trial court subsequently took judicial notice of the fact that the complaint in this case was filed by Mr. Clark on March 19, 2010.

Ms. Bridges requested that the jury be instructed about the retaliation defense. The trial court denied that request, concluding that Ms. Bridges had “waived” or “abandoned” the defense by failing to mention it in her opening statement or her trial testimony.

[3] As a substantive matter, Ms. Bridges introduced sufficient evidence at trial to support her request that the jury be instructed about the retaliation defense. In order to trigger a presumption of retaliatory action, a tenant need only present some evidence that the tenant engaged in protected activity (e.g., reporting housing violations to D.C. authorities) within six months before the allegedly retaliatory action. D.C.Code § 42–3505.02(b). As we have previously noted, Ms. Bridges introduced evidence at trial that she had complained in writing to government officials on September 22, 2009, and March 8, 2010. Both of those complaints were made within six months of March 19, 2010, the date on which Mr. Clark initiated this eviction action. Because Ms. Bridges introduced some evidence from which the jury could find that the presumption of retaliatory action was triggered, she was substantively entitled to have the jury instructed on the retaliation defense. See Gomez v. Independence Mgmt., 967 A.2d 1276, 1291 (D.C.2009) (“[T]he statutory presumption relieves the tenants of the burden of establishing a prima facie case of retaliatory action.”). See generally, e.g., East Capitol View Cmty. Dev. Corp. v. Robinson, 941 A.2d 1036, 1039 (D.C.2008) (party entitled to defense instruction if “there was record evidence that could at least support such a claim”).

[4] We also conclude that Ms. Bridges did not “abandon” or “forfeit” the retaliation defense by failing to mention the defense in opening statement or in her trial testimony. Ms. Bridges raised the retaliation defense in her answer, her amended answer, and the joint pretrial statement. Under those circumstances, Ms. Bridges was not required to discuss the defense in her opening statement. Cf. Hentz v. CBI–Fairmac Corp., 445 A.2d 1004, 1005 (D.C.1982) (reversing trial court's directed verdict in favor of landlord based on tenant's failure to mention cause of action in her opening statement; “equitable considerations require that litigants not be denied their day in court merely because they fail to allege in their opening statements that which is sufficiently alleged in their pleadings”); Lampka v. Wilson Line, Inc., 117 U.S.App.D.C. 55, 55–56, 325 F.2d 628, 628–29 (1963) (per curiam) (reversing trial *984 court's directed verdict based on plaintiff's opening statement; “Since the opening statement may be waived entirely, grave doubt arises whether, if a complaint states a cause of action, an opening statement can so dilute the formal pleading as to afford a basis for summary disposition”).

We similarly conclude that Ms. Bridges was not required to refer explicitly to the retaliation defense in her trial testimony. First, although she did not use the word “retaliation,” Ms. Bridges did provide testimony sufficient to support the retaliation defense, by testifying that she filed complaints with the D.C. Housing Authority regarding housing-code violations on dates that were within six months of the date on which Mr. Clark filed this eviction action. See Gomez, 967 A.2d at 1289 (statutory presumption triggered “if a tenant alleges acts which fall under the retaliatory eviction statute”).

[5] Second, in determining whether there is sufficient evidence to support a requested defense instruction, the inquiry focuses on the record as a whole, not solely on the defendant's testimony. See, e.g., Guillard v. United States, 596 A.2d 60, 62–63 (D.C.1991) (concluding that defendant was entitled to instruction on self-defense, even though defendant himself did not testify in support of that defense, because there was sufficient evidence in record taken as whole).

[6] Third, whether the jury should be instructed on a defense does not depend on whether a witness has explicitly referred to that defense by name. For example, a defendant in a criminal case could surely be entitled to an entrapment instruction even though no witness actually used the term “entrapment.” In fact, where a defense is defined in legal terms, it may be impermissible for the witness to testify directly in those terms. See generally, e.g., Steele v. D.C. Tiger Market, 854 A.2d 175, 181–83 (D.C.2004) (discussing restrictions on witness testimony framed in legal terms).

[7] Finally, a requirement that the tenant explicitly testify to the existence of retaliation would be contrary to the clear purpose of the statutory presumption of retaliatory action. Tenants often will not have direct evidence of a landlord's retaliatory motive. By creating a presumption of retaliatory action, the legislature “relieve[d] the tenants of the burden of establishing a prima facie case of retaliatory action.” Gomez, 967 A.2d at 1291. The presumption is triggered even in the absence of direct evidence, whether from the tenant or anyone else, that the landlord in fact acted with a retaliatory motive. And when the presumption is triggered, the landlord bears the burden of rebutting the presumption by clear and convincing evidence. D.C.Code § 42– 3505.02(b). That statutory scheme is incompatible with a requirement that a retaliation defense is available only if the tenant testifies directly that the landlord acted with a retaliatory motive.

Mr. Clark makes several arguments in support of the trial court's decision not to instruct the jury on the defense of retaliation. We are not persuaded by those arguments. First, Mr. Clark asserts that Ms. Bridges failed to object to the trial court's refusal to give a retaliation instruction. To the contrary, Ms. Bridges not only requested the instruction but also made clear that she objected to the trial court's refusal to give the instruction.

Second, Mr. Clark argues that instructing the jury on the retaliation defense would have resulted in unfair surprise and prejudice. Mr. Clark had ample notice, however, that Ms. Bridges intended to assert *985 a retaliation defense, because Ms. Bridges so stated in her initial answer, her amended answer, and the joint pretrial statement. For the reasons we have already explained, Mr. Clark could not reasonably have thought that the retaliation defense had been forfeited during the trial. Therefore, instructing

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Bridges v. Clark, 59 A.3d 978 (2013) the jury on the retaliation defense would not have unfairly surprised Mr. Clark. Cf., e.g., Han v. Southeast Acad. of Scholastic Excellence Pub. Charter Sch., 32 A.3d 413, 417 (D.C.2011) (concluding that trial court was correct to consider defense that was raised in motion for summary judgment but not pleaded as affirmative defense in initial pleadings, because opposing party had opportunity to respond, did respond, and “cannot now claim unfair surprise”); Word v. Ham, 495 A.2d 748, 751 (D.C.1985) (holding that appellants' failure to plead waiver defense in their answer or counterclaim did not prohibit appellants from raising that defense, because “[a]ppellees were put on notice of the defense by appellants' opposition to their motion for summary judgment and had the opportunity to respond, and thus cannot claim to have been prejudiced”). Moreover, Mr. Clark has at no point identified any specific respect in which his case would have been unfairly prejudiced by submission of the retaliation defense to the jury.

In sum, we conclude that Ms. Bridges presented sufficient evidence at trial to support her request for an instruction on the defense of retaliation, and that Ms. Bridges did not abandon or forfeit that defense at trial. The requested instruction therefore should have been given.

[8] Ms. Bridges also argues that the trial court erred by excluding as inadmissible hearsay an affidavit that Mr. Clark submitted to the court as an attachment to his pretrial motion to dismiss. She contends that the affidavit should have been admitted as an adoptive party admission. We agree. 3

Mr. Clark filed a pretrial motion to dismiss, arguing among other things that he had promptly corrected any defects in the house as soon he became aware of them. One of the attachments to the motion to dismiss was a sworn affidavit from Eric Love. The affidavit was only eight lines long. In the affidavit, Mr. Love swore that he helped Mr. Clark to fix a “pin hole leak on the roof” of the house in September 2008. Mr. Love also swore that Ms. Bridges was present at the time of the repair, and that the “leaks were too small to do any water damage to the furniture.”

At trial, Mr. Clark testified that he had “[n]ever found a leak in the roof.” In response, Ms. Bridges sought to have the Love affidavit admitted into evidence. The trial court ruled, however, that Ms. Bridges could not use the Love affidavit, on the ground that the affidavit was hearsay.

*986 Ms. Bridges raised the issue of the Love affidavit again the next morning, arguing among other things that the affidavit was an admission of a party opponent. Mr. Clark opposed admission of the Love affidavit unless the entire motion to dismiss and all of its accompanying exhibits were also admitted. The trial court rejected that suggestion, but also denied Ms. Bridges's renewed request that the Love affidavit be admitted into evidence. In excluding the Love affidavit, the trial court reasoned that attaching an exhibit to a motion does not constitute a waiver of the hearsay rule, and that admission of the affidavit would be more prejudicial than probative because the affidavit would require clarification through testimony and cross-examination.

This court has adopted the substance of Federal Rule of Evidence 801(d)(2), which provides that out-of-court statements by a party opponent are admissible. Harris v. United States, 834 A.2d 106, 115–16 (D.C.2003). More specifically, Rule 801(d) (2)(B) makes admissible an out-of-court statement that is offered against a party if “the party manifested that it adopted or believed [the statement] to be true.”

The Love affidavit is admissible under the principles of Rule 801(d)(2)(B) as an adoptive admission of a party opponent. 4 Mr. Clark manifested his adoption and his belief in the truth of the pertinent part of the affidavit by submitting the affidavit to the court as part of a motion to dismiss in which he argued that he had made repairs to the house promptly after learning of problems. 5 Mr. Clark further indicated his belief in the truth of the affidavit at trial, by consenting through counsel to the admission of the affidavit into evidence as long as the motion to dismiss was admitted in its entirety. See Harris, 834 A.2d at 117 (Rule 801(d)(2)(B) “does not require an explicit statement of adoption; all that is necessary is some manifestation of a party's intent to adopt another's statements, or evidence of the party's belief in the truth of the statements.”) (internal quotation marks omitted).

We also view it as quite significant that Mr. Clark was personally in a position to assess the veracity of Mr. Love's statement in the affidavit that Mr. Love helped Mr. Clark to fix a “pin hole leak on the roof” of the house in September 2008, because Mr. Clark would presumably know whether he had in fact been present at and involved in such a repair. Finally, we note that the pertinent statement was not buried in a lengthy document, but rather was clearly expressed in an eight-line affidavit.

[9] For these reasons, we conclude that Mr. Clark manifested his adoption and belief in the truth of the pertinent part of the Love affidavit. This conclusion finds substantial support in prior decisions of this court and the United States Court of Appeals for the District of Columbia Circuit. See Harris, 834 A.2d at 115–23 (trial court erred by completely excluding *987 police officer's affidavit, which was signed by prosecutor and submitted as part of search-warrant application, because at a minimum one portion of affidavit should have been admitted as adoptive admission); United States v. Warren, 310 U.S.App.D.C. 1, 9–10, 42 F.3d 647, 655–56 (1994) (trial court erred by excluding sworn statement by police officer, which was attached to criminal complaint submitted to court, because statement should have been admitted as adoptive admission); United States v. Morgan, 189 U.S.App.D.C. 155, 159–61, 581 F.2d 933, 937–39 (1978) (trial court erred by excluding police officer's affidavit, which was used to support search-warrant request, because statement should have been admitted as adoptive admission; “where, as here, the government has indicated in a sworn affidavit to a judicial officer that it believes particular statements are trustworthy, it may not sustain an objection to the subsequent introduction of those statements on grounds that they are hearsay”). 6

[10] To be clear, we do not mean to suggest that any document submitted to a court may later be treated as an adoptive admission. In both civil and criminal cases, whether a party has adopted or manifested a belief in the truth of a document that the party has submitted to a court will depend heavily on context. See Harris, 834 A.2d at 122–23 (remanding for further consideration of “fact-specific” question whether prosecution, by approving warrant application, had “necessarily impl[ied] agreement with the entire contents of the affidavit” submitted in support of application). Our holding thus reflects the specific circumstances of this case: by presenting to the court a sworn affidavit that made factual representations about Mr. Clark's own conduct, and by seeking dismissal of this case based on those factual representations, Mr. Clark clearly manifested his belief in the truth of those factual representations.

[11] Although Mr. Clark advances several arguments in support of the trial court's decision to exclude the Love affidavit, we do not find those arguments persuasive. First, Mr. Clark contends that the Love affidavit was inadmissible because it was a prior inconsistent statement by Mr. Clark and thus would have been admissible only if Ms. Bridges had first confronted Mr. Clark with the affidavit. This argument is flawed for two reasons. Procedurally, Ms. Bridges actually attempted to confront Mr. Clark with the affidavit, but was prevented from doing so by the trial court's ruling that the affidavit was inadmissible hearsay. Substantively, Ms. Bridges was not required to first confront Mr. Clark with the Love affidavit. There is a general rule that extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is first given an opportunity to explain or deny the statement. See Parker v. United States, 757 A.2d 1280, 1288 (D.C.2000); see also Fed.R.Evid. 613(b). That requirement, however, does not apply to prior inconsistent statements that qualify as adoptive admissions. See Chaabi v.

United States, 544 A.2d 1247, 1248 (D.C.1988) (party opponent admissions “do not require foundations, even where, as here, they are also prior inconsistent statements”); see also Fed.R.Evid. 613(b) (general requirement that witness must first be *988 confronted with prior inconsistent statement “does not apply to opposing party's statement under Rule 801(d)(2)”).

Second, Mr. Clark argues that the Love affidavit is inadmissible because Mr. Love was neither a party to the case nor an employee of Mr. Clark. It is of course true that Mr. Love was not a party to this case, and we agree that the record would not support a conclusion that Mr. Love was an employee of Mr. Clark. The Love affidavit thus would not properly have been admissible under Federal Rule of Evidence 801(d)(2)(A) (statements of parties) or 801(d)(2)(D) (statements of agent or employee of party). But the Love affidavit nevertheless was properly admissible as an adoptive admission under the principles of Rule 801(d)(2)(B), because Mr. Clark manifested his belief in the truth of that statement.

[12] [13] Third, Mr. Clark argues that the Love affidavit should not be considered admissible as an adoptive admission because the affidavit required a foundation and clarification through direct testimony and cross-examination. To the contrary, party admissions “do not require foundations to be admissible as substantive evidence.” Harris, 834 A.2d at 116 (quoting In re M.D., 758 A.2d 27, 32 (D.C.2000)); Chaabi, 544 A.2d at 1248. Similarly, an admission of a party opponent may not be excluded simply because the opposing party might wish to clarify the admission through further testimony. See Harris, 834 A.2d at 116 (“[o]ne rationale for this generous treatment of party admissions is a party's ability to rebut the out-of-court statement by putting himself on the stand and explaining his former assertion”) (internal citation and quotation marks omitted); Chaabi, 544 A.2d at 1248–49 (“the party will have ample opportunity for denial or explanation after the inconsistent statement is proved”) (internal quotation marks omitted).

[14] Finally, Mr. Clark contends that the affidavit was properly excluded as more prejudicial than probative. See generally Johnson v. United States, 683 A.2d 1087 (D.C.1996) (en banc) (otherwise admissible evidence may be excluded if its probative value is “substantially outweighed” by “danger of unfair prejudice”). Other than to suggest that he might have wished to respond to the affidavit, however, Mr. Clark does not specify in what way the admission of the Love affidavit would have unfairly prejudiced him. Nor is it apparent what unfair prejudice would have occurred. The Love affidavit therefore was not subject to exclusion on grounds of unfair prejudice. Cf. Harris, 834 A.2d at 122 (concluding that admitting police officer's affidavit, which was signed by prosecutor and submitted as part of search-warrant application, as an adoptive admission of the government would not have “confused the jury so as to justify exclusion of the evidence as substantially more prejudicial than probative”); Warren, 310 U.S.App.D.C. at 9–10, 42 F.3d at 654–55 (concluding that adoptive admission of party opponent should not have been excluded on ground of prejudice, because neither trial court nor objecting party “identified any potential prejudice”).

[15] We now turn to the question whether the errors were harmless. To conclude that a non-constitutional error is harmless, we must find it “highly probable that that error did not contribute to the verdict,” and must have a “fair assurance that the judgment was not substantially swayed by [the error].” In re Ty.B., 878 A.2d 1255, 1267 (D.C.2005) (emphasis and internal quotation marks omitted). We cannot find such assurance in this case.

*989 [16] We focus first on the impact of the exclusion of the Love affidavit. This case turned on the respective credibility of Mr. Clark and Ms. Bridges. Mr. Clark contended that he promptly repaired the house whenever he learned of problems, that Ms. Bridges was often late in paying her portion of the rent, and that Ms. Bridges was responsible for damaging the house. In contrast, Ms. Bridges claimed that the house suffered from many serious defects, that Mr. Clark did not respond until government officials compelled him to do so, and that she was not responsible for damage to the house. The jury apparently believed Mr. Clark's contentions, and therefore found in his favor on his claim for eviction and back rent, and against Ms. Bridges on her contentions that she was entitled to withhold rent and recoup previously paid rent because of the defects to the house. If the jury had believed Ms. Bridges, however, it could properly have found against Mr. Clark on the action for eviction and back rent, and for Ms. Bridges on her counterclaims.

Had Ms. Bridges been able to introduce evidence that there had in fact been a hole in the roof in 2008, she would have been able to argue to the jury that Mr. Clark had testified falsely when he claimed that he had never found a leak in the roof. Such an argument would have held out the prospect of undermining Mr. Clark's credibility more generally. Cf. Rosser v. United States, 381 A.2d 598, 609 n. 12 (D.C.1977) (“impeachment of a defendant by showing that he appeared to lie on the stand is usually devastating”); Napue v. Illinois, 360 U.S. 264, 269–70, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (“The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence.... It is of no consequence that the falsehood bore upon the witness' credibility rather than directly upon defendant's guilt. A lie is a lie, no matter what its subject ....”) (internal citation and quotation marks omitted). Given that this case turned on the comparative credibility of Mr. Clark and Ms. Bridges, we cannot say with the requisite assurance that exclusion of the Love affidavit was harmless. Cf. R & G Orthopedic Appliances & Prosthetics, Inc. v. Curtin, 596 A.2d 530, 540–41 (D.C.1991) (concluding error was not harmless where trial court erroneously restricted impeachment of plaintiff's key witness and plaintiff's case largely rested on testimony of that witness). 7

For the foregoing reasons, the judgment is reversed and the case is remanded for further proceedings.

So ordered.

Footnotes 1 The parties disagree about the standard of review applicable to this issue. Ms. Bridges argues that we should review the trial court's ruling de novo, whereas Mr. Clark argues that our review should be for abuse of discretion. We review de novo the question whether there was adequate evidentiary support in the record for the retaliation instruction. See, e.g., Daniels v. United States, 33 A.3d 324, 327 (D.C.2011). We review for abuse of discretion, however, the question whether Ms. Bridges forfeited that defense by failing to present it in a timely manner. Cf. Jaiyeola v. District of Columbia, 40 A.3d 356, 361 (D.C.2012) (reviewing for abuse of discretion trial court's ruling that party waived defense by failing to assert it properly at trial). 2 In pertinent part, the statute at issue provides that: No housing provider shall take any retaliatory action against any tenant who exercises any right conferred upon the tenant by this chapter, by any rule or order issued pursuant to this chapter, or by any other rule of law. Retaliatory action may include any action ... which seeks to recover possession of a rental unit.... [T]he trier of fact shall presume retaliatory action has been taken, and shall enter judgment in the tenant's favor unless the housing provider comes forward with clear and convincing evidence to rebut this presumption, if within the 6 months preceding the housing provider's action, the tenant: .... [c]ontacted appropriate officials of the District government, either orally in the presence of a witness or in writing, concerning existing violations of the housing regulations in the rental unit the tenant occupies or pertaining to the housing accommodation in which the rental unit is located, or reported to the officials suspected violations which, if confirmed, would render the rental unit or housing accommodation in noncompliance with the housing regulations.... D.C.Code § 42–3505.02(a) and (b). 3 Ms. Bridges argues that this court should review de novo the trial court's ruling excluding the affidavit, whereas Mr. Clark contends that this court's review should be for abuse of discretion. This court's cases do not provide clear guidance on that issue. See, e.g., In re K.J., 11 A.3d 273, 279 (D.C.2011) (“Evidentiary rulings by the trial court are reviewed for abuse of discretion[,] but ... determining whether a statement falls within an exception to the hearsay rule ... presents a question of law which this court considers de novo.”) (internal quotation marks omitted); Obelisk Corp. v. Riggs Nat'l Bank, 668 A.2d 847, 855 n. 7 (D.C.1995) (trial court acted within its “broad discretion” in finding that statement was not admission of party opponent). We need not resolve the issue. For the reasons explained in text, the ruling at issue was erroneous even if reviewed deferentially. 4 At trial, Ms. Bridges was focused on introducing the portion of the Love affidavit that related to the repair of the “pin hole leak.” Ms. Bridges appears to have assumed that if that portion of the affidavit were to be admitted, then the rest of the affidavit would properly be admissible under the rule of completeness. See generally, e.g., Cox v. United States, 898 A.2d 376, 381 (D.C.2006) (discussing rule of completeness). 5 Although Mr. Clark did not specifically refer to the Love affidavit in the body of the motion to dismiss, the pertinent part of the affidavit was clearly submitted to provide factual support for Mr. Clark's contention that he had made repairs to the house promptly after learning of problems.

6 Although our prior cases involving analogous adoptive admissions have arisen in the criminal context, the adoptive-admission rule is applicable in both civil and criminal cases. See Harris, 834 A.2d at 117–18 (citing with approval several cases finding adoptive admission where party submitted documents to court in civil case). 7 Because the exclusion of the Love affidavit by itself requires reversal, we need not decide whether the preclusion of Ms. Bridges's retaliation defense would also require reversal.

92 A.3d 290 District of Columbia Court of Appeals.

In re L.C., Appellant.

No. 10–FS–709. | Argued Nov. 9, 2012. | Decided June 5, 2014.

Synopsis Background: Defendant was convicted following bench trial in the Superior Court, District of Columbia, Hiram Puig–Lugo, J., of carjacking and assault with intent to commit robbery. Defendant appealed.

Holdings: The Court of Appeals, Glickman, J., held that:

[1] expert testimony was required for defendant to demonstrate relevant psychological factors bearing on reliability of eyewitness identifications;

[2] Government could not avoid mandatory vacatur of convictions and remand for hearing to determine admissibility of proffered testimony based on ground that was not considered by trial court;

[3] whether complainant's show-up identification of defendant as perpetrator was corroborated by other evidence was not relevant to question of admissibility of proffered expert testimony; and

[4] error in trial court's exclusion of defendant's proffered expert testimony regarding psychological factors bearing on reliability of eyewitness identification was not harmless.

Vacated and remanded.

Nebeker, Senior Judge, filed dissenting opinion.

Attorneys and Law Firms

*293 Stefanie Schneider, Public Defender Service, with whom James Klein and Alice Wang, Public Defender Service, were on the brief, for appellant.

John J. Woykovsky, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Rosalyn Calbert Groce, Deputy Solicitor General, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and NEBEKER, Senior Judge.

Opinion

GLICKMAN, Associate Judge:

This is an appeal from a delinquency adjudication after a bench trial on charges arising out of an attempted carjacking. The case against L.C. rested on the complainant's identifications of him shortly after the crime occurred and a month later at trial. L.C. claims the trial court erred in precluding him from presenting expert testimony on relevant psychological factors bearing on the reliability of such eyewitness identifications. We agree that the court erred in ruling that the proffered testimony was

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 In re L.C., 92 A.3d 290 (2014) not “beyond the ken” of the average layperson without conducting the particularized inquiry required by our decisions in Dyas v. United States 1 and Benn v. United States (Benn II ). 2 We cannot dismiss the error as harmless. We therefore vacate the judgment and remand the case for further proceedings to determine the admissibility of the expert's testimony.

According to the government's evidence, the complainant, Adrienne Kinney, had just parked her car in the alley behind her home in the 300 block of Division Avenue, N.E., on the evening of November 22, 2009, when she and her mother (who was accompanying her) were accosted by two unknown men. One of the men pushed Ms. Kinney back into her car, yelled at her, and tried to wrest her car keys from her hands. She resisted, and as the women began screaming for help and honking the car horn, the two assailants gave up and fled without taking anything. Ms. Kinney and her mother immediately called the police, who arrived within two or three minutes. Ms. Kinney told police the man who grabbed for her keys was taller than she was, of medium build and complexion, and that he was wearing an open-faced ski mask and a light blue ski jacket with a *294 white stripe or stripes. She said his companion also wore a mask and was dressed in black. 3

Within a few minutes, the police stopped appellant and a second man on the street at a location approximately 200 feet from the scene of the attempted carjacking, in the area toward which the perpetrators had run. Appellant was wearing a light blue jacket with white stripes; in his pocket police later found an open-faced ski mask. The man accompanying him had on a black jacket and blue jeans; the police did not find a mask in his possession. The police arranged for Ms. Kinney to view the two men. Sitting in a police car at a distance of approximately fifty feet, she identified appellant as her attacker and his companion as the second would-be carjacker. Ms. Kinney stated that she recognized appellant's jacket, his complexion, his build, and his face, and she commented, “That's why his hair ... looked puffy in the ski mask—he has dreads.”

Four weeks later, at appellant's trial, Ms. Kinney made an in-court identification of appellant. She testified that she first noticed him and his companion when she drove her car into the alley, and that she paid close attention to them because they made her nervous. The two men were strangers whom she had never seen before that night. As she got out of her car and proceeded to gather her things, she was hoping they would walk on by, which they did—but then they abruptly turned and “started to rush” her. Ms. Kinney claimed she had a good look at appellant's clothing; motion lights on the building behind her enabled her to see the colors of his jacket. She was face to face with appellant as they struggled over her keys. Although he was wearing a ski mask, it had a wide opening, through which Ms. Kinney said she could see the shape of his face and his nose, lips, eyes, teeth and skin. She professed to be certain of her identification. On cross-examination, though, Ms. Kinney agreed that she would describe appellant as having a dark complexion rather than a medium complexion. She also acknowledged that during the assault, she was screaming, her heart was racing, and she was afraid for both herself and her mother.

Appellant's defense at trial was misidentification. He called two witnesses—his older cousin, with whom he and his mother resided, and William Locust, the person whom the police had stopped with L.C. They testified that L.C. was on the front steps of his neighbor's house at the time of the attempted carjacking, and that he had just left there and was walking to a nearby convenience store and a gas station when the police stopped him.

To bolster his misidentification defense, appellant sought to call Dr. Steven Penrod to testify as an expert about research findings regarding psychological factors arguably present in this case that had been shown to reduce the probativity of eyewitness identifications. The pertinent proffered factors included: an effect known as “clothing bias” that can result in a mistaken identification when the eyewitness is shown a suspect who is wearing clothing similar to that the witness had described; 4 *295 the poor correlation between the confidence an eyewitness expresses and the accuracy of the identification; studies showing that stress and emotional arousal negatively affect the accuracy of identifications by impairing the witness's ability to perceive and to remember the perpetrator's face; 5 and the heightened suggestivity and unreliability of show-up identifications as compared to other identification procedures. The government moved in limine to exclude Dr. Penrod's anticipated testimony

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 In re L.C., 92 A.3d 290 (2014) on the grounds that it did not satisfy the first or third prongs of the three-prong test for the admission of expert testimony set forth in Dyas. 6 Specifically, the government argued, the proffered testimony was not “beyond the ken of the average layman,” and the unsettled state of scientific knowledge did not permit a reasonable opinion to be offered by any expert. The motion asserted that this court's case law supported the exclusion of expert testimony on the psychological factors affecting the reliability of eyewitness identification. 7

After hearing argument on the motion at a pretrial hearing, but without either conducting a voir dire examination of Dr. Penrod (who was present and available for that purpose) or, so far as appears, evaluating the proffered psychological research on which Dr. Penrod relied, the trial court ruled his testimony inadmissible on the sole ground that none of it was beyond the ken of the average layperson. Rather, in the court's view, the proposed areas of expert testimony were all matters within the reach of “common sense” that the defense could bring out in cross-examination and address in argument. The court did not rule on whether the other requirements of Dyas were satisfied.

In closing arguments, opposing counsel disputed whether the reliability of Ms. Kinney's identification of appellant was undermined by clothing bias, stress, and the suggestiveness of the show-up procedure, whether there were significant inconsistencies in her previous descriptions of her assailant, and whether her confidence in her identification was entitled to weight. The court's ruling excluding Dr. Penrod's testimony precluded appellant's counsel from supporting his arguments on these *296 matters with scientific studies. 8

After hearing arguments, the trial court credited Ms. Kinney's identification of appellant and found him guilty of carjacking and assault with intent to commit robbery.

II.

[1] As L.C. argues, and as the government does not dispute, our decisions in Benn II and Russell v. United States 9 now make it clear that the trial court erred in summarily concluding that the proffered expert testimony was not beyond the ken of the average layperson. In those cases this court recognized that the insights of modern psychological research into the factors influencing eyewitness identifications are not matters of common knowledge or common sense and are, indeed, often counterintuitive. 10 It makes no difference that the fact-finder in this case was an experienced trial judge whose background and knowledge in the area might exceed that of the average layperson. This court has rejected the argument that when the Dyas issue is presented in a bench trial, the proper standard for admissibility should be the “ken of the presiding trial judge” rather than that of the average layperson. 11 The average layperson standard applies “even though it could be said that the trial [judge is] competent to resolve the issue without the aid of an expert.” 12

Seeking to avoid the remedy required by Russell and Benn II—a remand for a full Dyas inquiry that likely would include a voir dire examination of Dr. Penrod 13 —the government urges us to affirm on an alternative ground: There was no reversible error, the government contends, because the exclusion of Dr. Penrod's testimony “was justified by the corroborative evidence in this case, which demonstrated the reliability of Ms. Kinney's identification of appellant.” 14 We must reject this argument.

[2] [3] First, even if we were to assume arguendo that, in deciding whether to admit Dr. Penrod's testimony, the trial court had discretion to consider the evidence corroborating the complainant's identification *297 of appellant, the court did not exclude the expert testimony on that basis, and the court certainly was not obligated to do so. That suffices to foreclose the government's argument, because this court may not affirm a discretionary ruling on a ground the trial court did not rely on and had discretion to reject. 15

[4] [5] [6] Second, and more fundamentally, the corroborative evidence was irrelevant to the question of the admissibility of appellant's proffered expert testimony, for the answer to that question depended only on whether the expert testimony would satisfy the three Dyas criteria and, if so, whether any danger of unfair prejudice or the like would nonetheless mandate its exclusion. 16 Even in a bench trial, the inquiry as to admissibility does not call for the court to assess the weight of pertinent and admissible expert testimony in light of the anticipated strength of the opposing party's evidence.

[7] [8] [9] In general, if evidence is relevant, it should be admitted unless it is barred by some other legal rule. 17 “There are two components to relevant evidence: materiality and probative value.” 18 “[T]he fact sought to be established by the evidence must be material, which is to say that the party must establish that fact as a condition to prevailing on the merits of his case.” 19 And the evidence must have probative value, meaning “the tendency of evidence to establish the proposition that it is offered to prove.” 20 The probativity threshold for purposes of admissibility is low: An item of evidence, to be relevant, need only “tend[ ] to make the existence or nonexistence of a fact more or less probable than would be the case without that evidence.” 21 As Professor McCormick explains:

*298 An item of evidence, being but a single link in the chain of proof, need not prove conclusively the proposition for which it is offered. It need not even make that proposition appear more probable than not. Whether the entire body of one party's evidence is sufficient to go to the jury is one question. Whether a particular item of evidence is relevant to the case is quite another. It is enough if the item could reasonably show that a fact is slightly more probable than it would appear without that evidence. Even after the probative force of the evidence is spent, the proposition for which it is offered still can seem quite improbable. 22 [10] [11] [12] “Ordinarily,” therefore, “any evidence [that] is logically probative of some fact in issue is admissible[,] and if the evidence offered conduces in any reasonable degree to establish the probability or improbability of a fact in controversy, it should go to the jury” or, in a non-jury trial, to the judge. 23 Thus, evidence may not be rejected as irrelevant merely because it is contradicted by other evidence. 24

[13] [14] The foregoing principles, applicable to evidence in general, apply equally to the admission of relevant expert testimony. The standard of relevance is the same for expert testimony as it is for other evidence; as we have held, “there is only one standard of relevance.” 25 It is true that the trial judge must exercise discretion to decide whether proffered expert testimony is likely to assist the trier of fact in the performance of its duties—“that is to say, in understanding the evidence, determining the facts that must be found and rendering its verdict.” 26 But such helpfulness is determined by the three criteria governing the admissibility of expert opinion testimony set forth in Dyas, and ultimately turns on “the relevance and probative value of the proposed scientific evidence.” 27 In the end, therefore, the criterion of helpfulness is met if the expert testimony is material and if its probative value is not substantially outweighed by the danger of unfair prejudice or other legitimate concerns.

[15] [16] Thus, the criterion of helpfulness is not a grant of authority to the trial *299 judge to exclude relevant and otherwise admissible expert testimony merely because it is against the expected weight of the evidence. 28 Still less does Dyas authorize the trial judge to exclude expert testimony as unhelpful based on the perceived strength of the opponent's evidence alone. 29 The rationality of such a rule cannot be defended, for as the Supreme Court explained in Holmes v. South Carolina, “by evaluating the strength of only one party's evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt.” 30

[17] [18] [19] [20] In taking the opposing view, the government relies on cases in which we have said that where corroboration of a challenged identification exists, the exclusion of proffered expert testimony on eyewitness identification generally does not constitute an abuse of discretion. 31 But that does not mean the existence of corroboration is a legitimate reason for the trial court to exclude the expert testimony; it only means that the exclusion likely will not be so prejudicial as to

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 In re L.C., 92 A.3d 290 (2014) necessitate reversal by the appellate court. Abuse of discretion is a standard of appellate review incorporating an assessment of prejudice. A trial court exercises its discretion erroneously when it relies on an improper factor, but “the reviewing court must weigh the severity of the error against the importance of the determination in the whole proceeding and the possibility for prejudice as a result.” 32 It is only when the impact of the error is so serious we must reverse that we say the trial court “abused” its discretion. 33 In some cases in which a challenged identification was amply corroborated, the appellate court may be able to conclude that the erroneously excluded expert testimony would not have undermined it significantly. When that is so, the court can conclude that the error did not affect the outcome of the trial, and hence that there was no “abuse” of discretion. 34 But to say the trial court did not abuse its discretion is not to say the court exercised its discretion properly.

[21] [22] That brings us to whether the erroneous ruling was harmless in this case. The burden is on the government to persuade us that “the judgment was not substantially swayed by the error” 35 —a standard requiring us to find it “highly probable” that the error did not contribute *300 to the verdict. 36 We are not prepared to make such a finding here. The government's case rested on a single, contested eyewitness identification of a stranger, the reliability of which the excluded expert testimony might have afforded a reasonable basis to doubt. We said in Benn that

[i]n a case grounded on eyewitness identifications of a stranger, without other corroborating evidence, and in which the defense depends entirely upon demonstrating that the identifying witnesses are not as reliable as they believe themselves to be, to preclude the defendant from presenting the scientific testimony of a qualified expert on research that is generally accepted and not known to lay jurors to prove this point is not harmless under Kotteakos v. United States, provided that the facts underlying the identifications establish a sound foundation for applying the principles expounded by the expert. 37 Here, to be sure, the identification was corroborated to an extent: When L.C. was stopped only minutes after the attempted carjacking, a short distance from the scene, he was wearing a blue jacket with a white stripe and he had a ski mask in his pocket—both of which matched the complainant's description of what her assailant was wearing. But without denigrating this evidence, we must acknowledge that we cannot be confident enough that it rendered the identification of appellant free from reasonable doubt that might have been instilled had Dr. Penrod's testimony been permitted. As appellant argues, his presence in the vicinity was not unusual given that he lived in the neighborhood, his jacket was not uncommon, and a ski mask was an appropriate item of cold weather apparel to have in a coat pocket in November when the nights may get chilly. The government presented no independent corroboration of appellant's guilt—no physical or scientific evidence, incriminating admissions or behavior by appellant, or third-party testimony implicating him in the carjacking.

Russell is instructive. In that case we held that the trial court's erroneous preclusion of testimony from the defendant's eyewitness identification expert required a remand for a Dyas hearing notwithstanding the presence of corroborative evidence comparable to, if not indeed stronger than, such evidence here. 38 We deemed it significant that there was no scientific or physical evidence linking Russell to the crime, nor any incriminating admissions. 39 And we recognized that “the excluded expert testimony was central to [Russell's] misidentification defense;” without it, we emphasized, he “had no factual underpinnings for the scientific theories he sought to present that might cast doubt on the eyewitness' testimony.” 40 Much the same is true here. If the erroneous exclusion of the defense expert's testimony was not harmless in Russell, it is difficult to see *301 how we could reach a different conclusion in this case. 41

For the foregoing reasons, we hereby vacate the judgment and remand the case for further proceedings to determine the admissibility of the proffered expert testimony in accordance with Benn II under the criteria set forth in Dyas. 42 “If the trial court determines ... that the expert testimony should have been permitted, it shall order a new trial. If the trial court adheres to its ruling that the testimony is inadmissible, it shall re-enter the judgment subject to appellant's rights to challenge the ruling in a renewed appeal.” 43

So ordered.

NEBEKER, Senior Judge, dissenting: There are two questions presented here: (1) whether, on these facts, the fact-finder with life experiences needs abstract help that effectively throws cold water, i.e. “a reasonable basis to doubt,” on the victim's identification of the culprit—I say no; and (2) if the majority says it does, whether on these facts the exclusion of such testimony visited undue prejudice on the appellant. I say it did not. In trying to see the issue presented here through the eyes of the majority it is apparent that their premise—per se admissibility of the proffered testimony—is where we disagree. However, there is no en banc decision of the court removing our issue from the near universal discretion of the trial court in matters of expert testimony.

The remedy dictated here is a remand for a hearing. At that hearing the trial judge is to apply the Dyas criteria along with a voir dire of the proffered expert and either order a new trial, or reinstate the conviction and have another appeal. Remand by the majority permits adherence to the earlier exclusion of the testimony after the Dyas and Benn inquiry and voir dire of Dr. Penrod during which he may be tested on whether his conclusions and those of studies he relies upon remain valid in light of the corroborating and uncontested facts discussed herein. Should the trial judge remain of the view that the expertise is unhelpful, he is surely free to exclude it. Further, in light of the expanded record, any error, assumed or real, in excluding the testimony would be reviewed for harmlessness and weighed against the same corroborating evidence we have before us now. Super. Ct. Juv. R. 52(a).

Russell and Benn did not articulate a per se rule that any relevant expert testimony on identification must be admitted. Instead, the admission of that evidence is still entrusted to the discretion of the trial judge who applies the circumstances of the case to the factors articulated in Dyas. The majority's opinion is founded on the premise that the trial court summarily concluded that expert testimony was not needed, making it necessary to remand to voir dire the proffered expert. 1 That is, on these *302 facts, the court erred in concluding that it was not beyond the ken of the average layperson to evaluate the victim's identification of the culprit despite the indicia of reliability from closeness of the time and location of the arrest, the ski mask and striped jacket.

Under the circumstances of this case, the trial court's ruling was within its discretion. The court properly considered the defense's proffer of testimony in the in limine hearing before concluding that none of the expert testimony would shed light on any aspect of the identification in this case beyond those that were within common sense knowledge. Rather than a summary conclusion, this shows the trial court's ruling rested on sound and in-depth consideration of what was common sense under the unique circumstances of this case. 2 The danger in what the majority proposes is that a blanket rule requiring the admission of the testimony of experts will interfere with the exercise of common sense. Indeed, as Winston Churchill wrote 113 years ago,

Expert knowledge is limited knowledge: and the unlimited knowledge of the plain man who knows only what hurts is a safer guide than any vigorous direction of a specialized character. Why should we assume that all except doctors, engineers, etc. are drones or worse? ... Is not government itself both an art and a science? To manage men, to explain difficult things to simple people, to reconcile opposite interests, to weigh the evidence of disputing experts, to deal with clamorous emergency of the hour; are not these things themselves the consideration and labour of a lifetime? ... Wherefore I say, from the dominion of all specialists ... good Lord deliver us. Letter from Winston Churchill to H.G. Wells (Nov. 17, 1901), in Graham Farmelo, Churchill's Bomb: How the United States Overtook Britain in the First Nuclear Arms Race 18 (2013). I also respectfully disagree with the majority's assertion—not necessary for its decision—that “the inquiry as to admissibility does not call for the court to assess the weight of the expert testimony in light of contrary evidence.” Majority Opinion at 297. It does when we consider “whether the testimony would assist the [fact-finder], taking into account the relevance and probative value of the proposed scientific evidence,” an examination required under Dyas. Benn v. United States, 978 A.2d 1257, 1278 (D.C.2009). “It is quintessentially the function of the trial judge to determine whether expert testimony is likely to be helpful” and we review only for abuse of discretion. 3 Id. at 1279, 1280. While we do not affirm convictions where *303 expert testimony is excluded and the government has only presented eyewitness testimony, where, as here, corroborative

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 In re L.C., 92 A.3d 290 (2014) evidence exists, “the exclusion of the proffered expert testimony by the trial court generally does not constitute an abuse of discretion.” Id. at 1280.

Moreover, it seems, according to the majority, that if there is “physical or scientific evidence, incriminating admission or behavior by the appellant, or third party testimony implicating him,” that evidence would justify denial of the expert testimony, or at least render the exclusion harmless in all cases. Majority Opinion at 300. Presumably, a clear video showing L.C. committing the attempted carjacking would justify the exclusion of expert testimony. I would hold to a lesser standard than the majority does and acknowledge that in such circumstances expert testimony is unhelpful and need not be presented; it is not, as the majority asserts, merely harmless error to exclude such testimony.

Nevertheless, I would conclude that on the evidence here, any error in excluding the testimony is harmless. The corroborating evidence in this case, as that in Patterson v. United States, 37 A.3d 230 amended by 56 A.3d 1152 (D.C.2012), carries far more logically persuasive weight than given it by my colleagues. As the majority acknowledges, we must affirm so long as “the judgment was not substantially swayed by the error.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). With the evidence here pointing to L.C. it is not prejudicial error to hold that a reasonable fact-finder, unaided by expert testimony, was able from human experience alone to decide beyond a reasonable doubt that L.C. attempted the carjacking. The evidence is well within the harmless error periphery.

We are not dealing with the ubiquitous tan trench coat, but to me a far more persuasive striped jacket and a ski mask, 4 which my colleagues discount because it was November. With official weather records indicating that the low temperature on November 22, 2009, was 36 degrees, 5 I *304 am not prepared to devalue this fact as I might be if the offense had been committed in January or February. In milder weather such masks better perform the role of an attempted disguise than defense against frostbite. The ski mask in November plus the proximity in time and place of arrest—just around the block, no more than eight minutes later—of the two men, each whom the victim recognized, also make this case appropriate for a harmless holding. The majority admits that the ski mask and jacket match the victim's description. What more is needed? The dimensions of the stripes; the size of the jacket; zipper or buttons!

The majority's insistence that corroborating evidence measure up to some exacting standard lacks common sense. I add to Churchill's observation, supra, that while we may sometimes bind ourselves by modern thought, common sense is today as it was in the past. Isn't the ski mask on a cool—not freezing—November day without others around minutes after the flight enough? Or, are these facts to be considered only in isolation from each other? I suggest that the conglomerate of the facts provides enough so that a fact-finder needs no further help in assessing the victim's identification testimony. To be sure, the subject of the proffered expert testimony here would be beyond the ken of the average person, but the question is whether, in these fact-bound circumstances, a fact-finder needs expert opinion to evaluate the accuracy of the victim identification.

To this, I add one other factor: a pretrial motion to suppress was filed and denied. The issues raised (probable cause to arrest and undue suggestivity) are not presented on appeal. Therefore, we may take as conceded that it was more likely than not —i.e., probable cause—that L.C. attempted the carjacking, that the identification was not unduly suggestive, and that it was reliable; there was no probability of an irreparable misidentification. See Turner v. United States, 622 A.2d 667, 672, 672 n. 4 (D.C.1993) (“While a show-up may not be an ideal setting for an identification, it is not sufficient alone to establish a due process violation.... Indeed, identifications conducted soon after the crime enhance the accuracy of witnesses' identifications and allow innocent suspects to be quickly freed.”).

This is important because in determining that the identification was reliable, the trial court considered, inter alia, the stress under which the victim may have been acting, that clothing may affect identification, and that “a person's perception and recollection may be tainted by subsequent events”—the same factors L.C. proffered were relevant for expert testimony. This is not the type of case where we could only speculate about the thought processes of a jury. Instead, in this case the trial judge, acting as fact- finder, made specific findings on the record which we can look to in determining whether the exclusion of expert testimony would have “substantially swayed” the final judgment. 6 Not only did *305 the court consider the same factors proffered

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 In re L.C., 92 A.3d 290 (2014) by L.C., but it found they were outweighed by other corroborating circumstances of the identification: the proximity in space (“basically ... around the block”) and time (the men were stopped between 6 and 8 minutes after the attempted carjacking); that there was “nobody else in the area”; that the clothing of both men matched the descriptions earlier given; that the ski mask found on L.C. matched the victim's description (at 8:30 on a November night with a low of 36 degrees); that the victim saw her assailant with light “shining directly” on him; that she “looked him up and down”; that even with the ski mask on, she could “still see his face, the shape of his face” and that the “puffy” look of the mask was caused by L.C.'s dread locks; and that the victim made her identification independently from that of her mother.

The majority holds that this “corroborative evidence [is] irrelevant to the question of the admissibility of appellant's proffered testimony, [which depends] only on whether that testimony would satisfy the three Dyas criteria....” Majority Opinion at 297 (emphasis added). I submit that life experiences and the facts in the case so coalesce as to justify the conclusion that the fact- finder does not need (or a jury would be confused by) this kind of expert testimony. Nothing more is logically required and the court need not determine whether all three Dyas factors are met. 7 Here, I find the corroborating evidence, when not given the crabbed view of the majority, to be controlling.

The majority says: “The case against L.C. rested on the complainant's identification of him....” Majority Opinion at 293. It did not. Despite their treatment of the other identifying facts as irrelevant to the issue presented, those facts independently vouch for the accuracy of the victim's observations of L.C. during and after the attempted carjacking. If the victim's observations of L.C. stood alone, or uncorroborated, the proffered expertise would assist in evaluating their accuracy. However, when L.C. was found minutes later, on the path pointed out by the victim, with a ski mask on a Fall night, wearing a distinctive white- striped jacket, and no other people were around, a discretionary decision to exclude that expertise as not helpful to the trial judge must be sustained.

I would affirm. See Patterson, supra, 37 A.3d 230, 236–40.

Footnotes 1 376 A.2d 827, 832 (D.C.1977). 2 978 A.2d 1257, 1269–70, 1273–74 (D.C.2009). 3 Although Ms. Kinney's mother also talked to the police and participated in the ensuing show-up identification procedure, she did not testify and neither party relied on her at trial. We therefore omit any further description of her involvement and the information she gave the police. 4 For example, Dr. Penrod apparently was prepared to testify about a recent study in which subjects viewed a target individual wearing distinctive clothing. When, later in the day, the subjects were shown another person wearing similar clothing, half of the subjects incorrectly identified the person as the target. See also State v. Henderson, 208 N.J. 208, 27 A.3d 872, 903 (2011) (en banc) (noting research findings indicating that “showups increase the risk that witnesses will base identifications more on similar distinctive clothing than on similar facial features”) (citing Jennifer E. Dysart et al., Show-ups: The Critical Issue of Clothing Bias, 20 Applied Cognitive Psychol. 1009, 1019 (2006), and A. Daniel Yarmey et al., Accuracy of Eyewitness Identifications in Showups and Lineups, 20 Law & Hum. Behav. 459, 461, 470 (1996)). 5 Among other things, Dr. Penrod was prepared to testify about a “meta analysis” he had performed of some twenty-seven independent tests on the effect of stress on the reliability of eyewitness identifications. He found that the average error rate in the identifications was 34% when the witness was under high stress as compared with 19% under low stress conditions. 6 We held in Dyas that expert testimony must satisfy three criteria to be admissible: (1) the subject matter of the testimony must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layperson; (2) the witness must have sufficient skill, knowledge or experience in the field or calling as to make it appear that his opinion or inference will probably aid the trier of fact in its search for truth; and (3) the state of the pertinent art or scientific knowledge must permit a reasonable opinion to be asserted by an expert. Dyas, 376 A.2d at 832. 7 The government did not mention this court's opinion in Benn II, which had been decided three months earlier. Appellant cited Benn II to the trial court when the motion was argued.

8 The court sustained an objection when defense counsel attempted to cite Dr. Penrod's research, on the ground that the research was “not common knowledge.” [12/31/09 Tr. at 105–06] 9 17 A.3d 581 (D.C.2011). 10 See Benn II, 978 A.2d at 1277 (“Despite the fact that jurors may be familiar from their own experience with factors relevant to the reliability of eyewitness observation and identification, it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror.”) (internal quotation marks, brackets and ellipses omitted); id. at 1268 (noting that “jurors, as a matter of common sense, are not fully aware of the factors that influence eyewitness testimony,” and that research has disproved commonly held beliefs in the accuracy of eyewitness identifications); see also Russell, 17 A.3d at 588 (stating that the court will have to undertake a “more in-depth consideration” of the proffered testimony on remand before rejecting it “based upon previously accepted common sense notions of what matters are within the ken of the average lay person”). 11 Girardot v. United States, 996 A.2d 341, 347 (D.C.2010) (brackets omitted). 12 Id. at 348. 13 See Russell, 17 A.3d at 588; Benn II, 978 A.2d at 1277–80. 14 Brief for Appellee at 29. There was, of course, both evidence corroborating Ms. Kinney's identification of appellant (e.g., the jacket he was wearing and the ski mask in his pocket when he was stopped) and evidence contradicting that identification (e.g., the testimony of appellant's witnesses). The government's argument discounts the worth of the latter evidence. 15 See Randolph v. United States, 882 A.2d 210, 219 (D.C.2005). 16 See Ibn–Tamas v. United States, 407 A.2d 626, 632 (D.C.1979); accord Robinson v. United States, 50 A.3d 508, 523 (D.C.2012) (“In general, expert testimony should be admitted if it is relevant and is likely to help the trier of fact in its search for the truth, that is to say, in understanding the evidence, determining the facts that must be found and rendering its verdict.”) (internal citations and quotation marks omitted). 17 See, e.g., Reavis v. United States, 395 A.2d 75, 78 (D.C.1978) ( “Relevance, and the concepts it embodies, determines initially whether a proffered item of evidence will be admissible.”); 2 Clifford S. Fishman, JONES ON EVIDENCE § 11:1 at 258 (7th ed. 2000) (“Evidence that is relevant should be admitted, unless barred by some other rule.”); 1 Kenneth S. Broun et al., MCCORMICK ON EVIDENCE § 184 at 728 (6th ed. 2006) (“[U]nless there is some such distinct ground for refusing to hear the evidence, it should be received.”) (footnote omitted); Fed.R.Evid. 402 (“Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court. Evidence which is not relevant is not admissible.”). 18 MCCORMICK ON EVIDENCE § 185 at 729 (footnote omitted). 19 Reavis, 395 A.2d at 78; see also MCCORMICK ON EVIDENCE § 185 at 729 (“[Materiality] looks to the relation between the propositions that the evidence is offered to prove and the issues in the case.”). 20 Id. § 185 at 730. 21 Punch v. United States, 377 A.2d 1353, 1358 (D.C.1977); accord Plummer v. United States, 813 A.2d 182, 188 (D.C.2002) (“Evidence is relevant if it has ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ”) (quoting Street v. United States, 602 A.2d 141, 143 (D.C.1992)); Fed.R.Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”). To put it differently, evidence is irrelevant in the sense that it lacks probative value only if “the evidence does not justify any reasonable inference as to the fact in question. Cases involving such evidence are few and far between.” MCCORMICK ON EVIDENCE § 185 at 735 (emphasis in original; footnote omitted). 22 MCCORMICK ON EVIDENCE § 185 at 733 (footnotes omitted). See, e.g., Winfield v. United States, 676 A.2d 1, 4 (D.C.1996) (en banc) (holding that when the defendant seeks to introduce evidence of a third-party perpetrator, “there is no requirement that the proffered evidence must prove or even raise a strong probability that someone other than the defendant committed the offense”) (internal quotation marks and alterations omitted). 23 Plummer, 813 A.2d at 188–89 (internal quotation marks and brackets omitted). 24 Evidence that is relevant and not barred by some other legal rule may be excluded, in the trial court's discretion, if the court finds that its probative value is substantially outweighed by a danger of unfair prejudice, confusion of the issues, or other legitimate concerns. See (William A.) Johnson v. United States, 683 A.2d 1087, 1100 (D.C.1996) (en banc) (adopting Federal Rule of Evidence 403). The trial court in this case did not make such a finding, nor does the government suggest that it should or could have done so. 25 Winfield, 676 A.2d at 3. 26 Hager v. United States, 856 A.2d 1143, 1147 (D.C.2004) (quoting Steele v. D.C. Tiger Market, 854 A.2d 175, 181 (D.C.2004)) (internal quotation marks omitted), amended by 861 A.2d 601 (D.C.2004).

27 Benn II, 978 A.2d at 1278. Perhaps it would be more precise to say that helpfulness turns on the materiality and probative value of the proposed scientific evidence. 28 See, e.g., Western Indus., Inc. v. Newcor Can., Ltd., 739 F.2d 1198, 1202 (7th Cir.1984) (Posner, J.) (holding that trial judge erred in excluding expert opinion testimony, because “a judge in our system does not have the right to prevent evidence from getting to the jury merely because he does not think it deserves to be given much weight,” and thus “he may not screen witnesses simply to decide whether their testimony is persuasive”). 29 As noted previously, while there was evidence corroborating Ms. Kinney's identification of appellant, there also was evidence contradicting it. 30 547 U.S. 319, 331, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006). Indeed, Holmes makes clear that a rule of evidence allowing a trial judge to exclude a defendant's relevant and otherwise admissible expert testimony when the prosecution's evidence of the defendant's guilt is strong would contravene the constitutional guarantee of “a meaningful opportunity to present a complete defense.” Id. 31 See Benn II, 978 A.2d at 1280, and Hager, 856 A.2d at 1149. 32 (James W.) Johnson v. United States, 398 A.2d 354, 365, 367 (D.C.1979). 33 Id. 34 See, e.g., Heath v. United States, 26 A.3d 266, 282–85 (D.C.2011), cert. denied, ––– U.S. ––––, 134 S.Ct. 898, 187 L.Ed.2d 774 (2014). 35 Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). 36 Heath, 26 A.3d at 275 n. 18 (D.C.2011), (internal quotation marks omitted). 37 Benn, 978 A.2d at 1283 (footnotes omitted). 38 In Russell the defendant's clothing and appearance when he was apprehended shortly after the carjacking matched the victim's description of the carjacker as a man with his hair in dreadlocks wearing a black North Face jacket with a hood, blue jeans, and black boots. Moreover, his jeans were wet and muddy, which was consistent with the fact that a police officer had seen the perpetrator flee into the woods. And unlike in this case, in Russell there were two eyewitness identifications, each corroborating the other. 17 A.3d at 584, 589–90. 39 Id. at 589. 40 Id. 41 The government argues that appellant was able to test the reliability of Ms. Kinney's identification of him through cross-examination. But “[a]ppellant's proffered scientific theories could not be developed on the cross examination of lay witnesses.” Id. As in Russell, “[w]e are not persuaded that the fact that appellant cross-examined vigorously the eyewitness[ ] and argued the shortcomings of the identification[ ] to the [court] to the extent that he could means that he had a meaningful opportunity to present his misidentification defense.” Id. 42 See Benn II, 978 A.2d at 1278, 1280. 43 Russell, 17 A.3d at 589–90. 1 Quite surprisingly, the majority also concludes that the excluded testimony “might have afforded a reasonable basis to doubt” the victim's identification. Majority Opinion at 300. Does that mean that if the fact-finder hears the expert's testimony (we don't assume he would lie) an acquittal must follow because a reasonable doubt exists as a matter of law? I would hope not, but the majority opinion surely befogs the situation and invites us to consider whether a judgment of acquittal is in order—as a matter of law—if the testimony is to be accepted at a new trial. 2 The majority's reliance on Russell and Benn reads too much into the decisions for precedential purposes. In Russell, the time between the incident and identification was much longer (at least an hour and twenty minutes) and the location of arrest more distant (a number of blocks), and the witness had been drinking. 17 A.3d 581, 583–84 (D.C.2011). In Benn, the government's sole evidence was identification, there was no physical evidence—and the appellant was apparently not arrested near the scene shortly thereafter because the challenged photo array was held a full week after the incident. 978 A.2d 1257, 1263–64, 1264 n. 12 (D.C.2009). In these fact-bound situations there is, in my view, little room for controlling precedent, at least in this case. Remember, precedent is to guide, not to conquer. 3 My colleagues find automatic abuse of discretion from their disagreement with the reasoning of the trial judge. Doing so treats the trial judge as an administrator who must give reasons and bases for an administrative decision, and if one reason is erroneous the reviewing court may not substitute its judgment for that of the administrator, but must remand for reconsideration. See, e.g., Securities & Exch. Comm'n v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943) (“The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.”). Judicial review of discretionary trial court decisions shows no such limitation. We must uphold a discretionary trial court decision if there is a basis to do so whether no reason or an erroneous one were given. Id. at 88, 63 S.Ct. 454 (“In confining our review to a judgment upon the validity of

the grounds upon which the Commission itself based its action, we do not disturb the settled rule that, in reviewing the decision of a lower court, it must be affirmed if the result is correct although the lower court relied upon a wrong ground or gave a wrong reason.” (internal quotation marks omitted)); see also Johnson v. United States, 398 A.2d 354, 365–66 (D.C.1979) (“Determinations committed to the trial court's discretion do not submit themselves to a highly structured review for abuse of discretion as easily as do most administrative determinations.... [W]e are prepared to countenance imperfections in the trial court's exercise of discretion to enjoy more fully the advantages of making the determination discretionary. Thus, at times we may find that the fact of error in the trial court's determination caused no significant prejudice and hold, therefore, that reversal is not required.”). 4 Much different than the generic clothing in Russell. See 17 A.3d at 584 (relating description of assailants as “two black males, both wearing black North Face jackets with hoods, blue or dark-colored jeans, and black boots”). 5 National Oceanic & Atmospheric Administration records indicate that the high for November 22, 2009 was 58 degrees and the low was 36 degrees at the National Arboretum, the closest weather station to where the events occurred. 6 The majority's insistence on treating harmlessness equally between jury and bench trials defies logic. There are unchallengeable differences between a jury that deliberates and votes in secret and a judge who makes his findings known on the record. The evaluation of the harmlessness of error in a bench trial, unlike a jury trial, benefits from those specific findings. Where, as here, findings were made on the record, we must acknowledge and incorporate them in determining whether any alleged error substantially swayed those findings and the judge's ultimate conclusions. 7 The authorities purportedly backing up a conjunctive application of the tests make no sense. Examples such as DNA evidence or a video picture of the defendant committing the offense make any Dyas criteria other than “ken of the average person” irrelevant to the question of admissibility. If a conjunctive reading leads to absurd results the disjunctive becomes necessary.