USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2141
UNITED STATES,
Appellee,
v.
THOMAS A. SHAY,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Boudin, Circuit Judge,
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and Barbadoro,* District Judge.
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Kathy B. Weinman, by Appointment of the Court, with whom Amy
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Baron-Evans, and Dwyer & Collora were on brief for appellant.
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Frank A. Libby, Jr., Assistant United States Attorney, with
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whom Donald K. Stern, United States Attorney, and Paul V. Kelly,
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Assistant United States Attorney, were on brief for appellee.
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June 22, 1995
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* Of the District of New Hampshire, sitting by designation.
BARBADORO, District Judge. Thomas Shay Jr. was found
BARBADORO, District Judge
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guilty of conspiracy and aiding and abetting an attempt to blow
up his father's car. In proving its case, the government relied
in part on incriminating statements that Shay Jr. made to the
police, the media, and fellow inmates. The defendant responded
by arguing that his statements were unreliable and should be
disregarded. In this opinion, we determine whether the court
properly prevented the defendant from supporting his argument by
calling a psychiatrist to testify that he suffered from a mental
disorder that causes its victims to make false and grandiose
statements without regard to the consequences. We also address
various other issues that the defendant raises on appeal.
I. BACKGROUND
I. BACKGROUND
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A. The Explosion
A. The Explosion
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Two officers from the Boston Police Department Bomb
Squad were sent to the home of Shay Jr.'s father, Thomas Shay
Sr., after Shay Sr. informed the police that he had discovered a
suspicious black box in his driveway that had become dislodged
from the undercarriage of his car. While the officers were
examining the box, it exploded, killing Officer Jeremiah Hurley
and seriously wounding Officer Frances Foley. Agents from the
Bureau of Alcohol, Tobacco and Firearms, working with the Boston
Police Department, later determined that the box contained two to
three sticks of repackaged dynamite, a remote control device and
other components necessary to detonate the bomb from a remote
location.
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B. The Government's Case
B. The Government's Case
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The government's trial theory was that Shay Jr.
conspired with a friend, Alfred Trenkler, to kill Shay Jr.'s
father by blowing up his car. In proving its case, the
government relied primarily on several incriminating statements
that Shay Jr. made after the bombing. We describe his most
damaging statements to illustrate their importance to the
government's case.
1. Shortly after the bombing, Shay Jr. told a police
officer, "he was sorry about it and wished he could turn back the
hands of time and make it not have happened." The government
argued at trial that this statement was evidence of Shay Jr.'s
guilty conscience.
2. Shay Jr. told reporters covering the bombing that
he had been questioned about whether his father was capable of
constructing a remote control device. Because the police claimed
that they did not question Shay Jr. about the bomb's remote
control detonator until after Shay Jr. made this statement, the
government argued that the statement demonstrated that Shay Jr.
had special knowledge about the bomb that only a co-conspirator
would possess.
3. Shay Jr. gave an interview to a television reporter
in which he made several statements concerning the bombing.
Although he claimed in the interview that he was only guilty of
knowing who had built the bomb after-the-fact, he admitted that
Trenkler had told him before the bombing that he was planning a
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"surprise" for Shay Jr., which turned out to be the bomb. Shay
Jr. also acknowledged during the interview that he had purchased
a toggle switch and an "AA" battery holder that Trenkler had used
in building the bomb.
4. Shay Jr. allegedly told a fellow cellmate, "I'm
boom, boom. Don't you know me? You have to know me. I'm the
one who killed the Boston cop." According to the cellmate, Shay
Jr. also told him that he and Trenkler had built the bomb
together and attached it to the undercarriage of his father's
car.
The government supported Shay Jr.'s incriminating
statements about the bombing with other evidence that: (a)
Trenkler and Shay Jr. were friends who were in sporadic contact
from 1988 through the fall of 1991; (b) Trenkler had the skill to
construct the bomb; (c) gray duct tape consistent with that in
the bomb was discovered in a search of Trenkler's parents'
residence; (d) ten days prior to the explosion, someone purchased
a toggle switch and "AA" battery holder of the same type used in
the bomb from a Radio Shack store located directly across the
street from where Trenkler was working; (e) Radio Shack's records
listed the purchaser's name as "SAHY," and his identification
number corresponding to the last four digits of his telephone
number as "3780," which was similar to the last four digits of
Shay Sr.'s home telephone number, "7380"; (f) Shay Jr. was
strongly motivated to kill his father because they had a
difficult "love-hate" relationship, and Shay Jr. believed that he
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would collect a substantial inheritance if his father were
killed; and (g) Shay Jr. demonstrated consciousness of guilt by
fleeing the jurisdiction after he was released on bail following
his arrest on an unrelated matter.
C. The Defendant's Case
C. The Defendant's Case
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Shay Jr. responded to the government's case by arguing
that his statements about the bombing were unreliable, that the
rest of the evidence failed to establish his guilt, and that
other evidence suggested that Shay Sr. may have built the bomb.
His attack on the statements comprised three parts. First, in an
effort to demonstrate that he made the statements in order to
fulfill a compulsive need for attention even though they were
false, the defense elicited testimony from several witnesses that
Shay Jr. regularly told the same grandiose stories, often
changing significant details each time he told them; repeatedly
sought out the media to talk about the bombing even though it was
not in his interest to do so; made comments concerning the police
investigation which were not confirmed by the police; and
expressed abnormal interest in the media attention he received as
a result of his statements.
Second, the defense attempted to show that Shay Jr.'s
many statements about the bombing were conflicting and
demonstrably wrong about important details that would have been
known by a co-conspirator. In other words, as defense counsel
stated in her summation, "[Shay Jr.] may be trying to talk about
this crime, but he doesn't make it. He can't pull it off. He
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doesn't have the facts right." To illustrate this point, the
defense pointed to Shay Jr.'s repeated and incorrect statements
that the bomb contained C-4 explosive (or plastique) and
batteries purchased from Radio Shack.
Finally, the defense attempted to call Dr. Robert
Phillips, a psychiatrist, who was prepared to testify that Shay
Jr. suffered from a recognized mental disorder known as
"pseudologia fantastica."1 According to Dr. Phillips, this
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1 Pseudologia fantastica is categorized as a factitious disorder
in the Diagnostic and Statistical Manual of Mental Disorders (3d
ed. 1987) ["DSMIII-R"] and is sometimes referred to as
Munchausen's Disease named after Baron von Munchausen who was a
German storyteller who wandered the countryside spinning tall
tales.
Pseudologia fantastica is a variant of lying, often
characterized as an extreme form of pathological lying. R.
Sharrock and M. Cresswell, Pseudologia Fantastica: A Case Study
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of a Man Charged with Murder, 29 Med. Sci. Law. 323, 323 (1989).
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Unlike "con-men" whose lying is for the purpose of some material
gain, victims of this condition present falsifications that are
"'disproportionate to any discernable end.'" Id. Pseudologues
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represent fantasies as real occurrences. "These fantasies often
involve dramatic, grandiose, and exaggerated events consciously
acknowledged as false by the patient, yet presented as truth."
Charles W. Dithrich, Pseudologia Fantastica, Dissociation, and
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Potential Space, in Child Treatment, 72 Int. J. Psycho. Anal.
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657, 657 (1991). "External reality is negated by an enthralling,
seductive and exciting inner world in which anything is
possible." Id. at 658. The gain for the pseudologue could be ego
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enhancement or the attention received as a result of the story.
Sharrock and Cresswell, supra at 323. Many lie for no apparent
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reason, in circumstances where they have nothing to gain from not
telling the truth. Anne Vaughan, "Believe me - I cannot tell the
truth," The Independent, July 9, 1991, at 13.
Pseudologues are also often highly compliant and suggestible
to misleading information. Sharrock and Cresswell, supra at 323.
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"'They are often histrionic or suggestible types who thrive on
attention and lie for a quick high...and don't worry about the
consequences.'" Vaughan, supra. Furthermore, even when they are
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confronted with their lies, many pseudologues are unable to
control their lies. Id.
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condition caused Shay Jr. to
spin out webs of lies which are
ordinarily self-aggrandizing and serve to
place him in the center of attention.
Put otherwise, coping for Mr. Shay, given
his personality structure, entails
seeking attention, tailoring his words to
the audience, creating fantasies in which
he is the central figure, and through
which he attempts to enlist his audience
. . . . Mr. Shay's stories are an
attempt to draw others into his fantasy
world in order to meet the interpersonal
needs which were not met during his
childhood.
The district court prevented the defense from offering
this testimony, concluding that the evidence should be excluded
pursuant to Fed. R. Evid. 702 primarily because the jury was
capable of determining the reliability of Shay Jr.'s statements
without the testimony.2
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As noted by one doctor, "[i]t is quite common for people
suffering from pseudologia fantastica to turn up at a police
station confessing to a crime they did not commit. Usually these
have been high-profile, well-publicized cases such as bank
robberies. 'This group of pseudologues loves the excitement and
power that helping the police brings. It makes them feel
important and they relish all the attention and fame that they
receive from the case...'." Id.
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2 The court offered the following explanation:
With respect to the psychiatric expert
offered by the defendant, as I understand
that, it is offered to show that the
defendant has an uncontrollable need to
draw attention to himself and will say
anything to satisfy his need, and in
particular, it is offered to explain away
his inculpatory statement. Under 702
expert evidence is admissible to assist
the jury to understand evidence or to
determine a fact in issue. The record in
this case is replete with the defendant's
contradictory statements, indeed, his
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II. DISCUSSION
II. DISCUSSION
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A. Exclusion of Expert Testimony Concerning the
A. Exclusion of Expert Testimony Concerning the
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Reliability of Shay Jr.'s Statements
Reliability of Shay Jr.'s Statements
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In preventing Dr. Phillips from testifying, the
district court relied on its discretionary authority pursuant to
Fed. R. Evid. 702 to exclude expert testimony that will not
"assist the trier of fact to understand the evidence or to
determine a fact in issue." Shay Jr. contends that the decision
was based upon an erroneous interpretation of Rule 702.3 The
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fantastic ones about tanks and bombers,
and other things.
Under these circumstances, the jury
does not need expert evidence on the
issue of the defendant's credibility.
And there is, with respect to this
evidence, the additional danger that the
expert will go beyond the brief
references to -- I think it's called --
pseudologiafantastica [sic] in the areas
that are in fact inadmissible such as
diminished capacity, personality,
deficit, and so on.
The quintessential question is whether
the jury will believe what the defendant
says, and on that question, given this
record, the jury does not need any
additional expert evidence or any expert
evidence. Accordingly, I will rule out
the defendant's proffer on that issue,
and your objection is noted as is the
Government's.
3 Shay Jr. also argues that the exclusion of Dr. Phillips's
testimony violated his Sixth Amendment right to present a
complete defense. The Sixth Amendment's Compulsory Process
Clause has been interpreted to entitle a defendant to both "'the
right to the government's assistance in compelling the attendance
of favorable witnesses at trial and the right to put before a
jury evidence that might influence the determination of guilt.'"
Taylor v. Illinois, 484 U.S. 400, 408 (1988) (quoting
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Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987)). Nevertheless,
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government argues that the district court did not abuse its
discretion in excluding the evidence and alternatively asserts
that the court was obligated to exclude the evidence as a matter
of law because it concerned a credibility question that was the
jury's exclusive province to resolve. We first consider the
government's argument for categorical exclusion.
1. Must expert testimony concerning credibility
1. Must expert testimony concerning credibility
questions be excluded as a matter of law?
questions be excluded as a matter of law?
In arguing that expert testimony bearing directly on
credibility questions is never admissible, the government relies
on selected quotations from decisions in other circuits. See,
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e.g., Bachman v. Leapley, 953 F.2d 440, 441 (8th Cir. 1992) ("It
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is the exclusive province of the jury to determine the
believability of the witness . . . [a]n expert is not permitted
to offer an opinion as to the believability or truthfulness of a
victim's story."); United States v. Benson, 941 F.2d 598, 604
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(7th Cir. 1991) ("[c]redibility is not a proper subject for
expert testimony"), modified, 957 F.2d 301 (7th Cir. 1992);
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United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973)
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("[c]redibility, however, is for the jury - the jury is the lie
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the right to present evidence is not unlimited. Chambers v.
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Mississippi, 410 U.S. 284, 302 (1973). "The accused does not
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have an unfettered right to offer testimony that is incompetent,
privileged, or otherwise inadmissible under standard rules of
evidence." Taylor, 484 U.S. at 410. We need not define the
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outer limits of Shay Jr.'s Sixth Amendment rights in order to
decide the present case because, at least in this instance, the
Sixth Amendment offers Shay Jr. no greater protection than the
rules of evidence. See United States v. Fosher, 590 F.2d 381,
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384 n.2 (1st Cir. 1979) (right to compulsory process does not
include the right to adduce properly excluded evidence).
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detector in the courtroom"), cert. denied, 416 U.S. 959 (1974).
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We think the government makes too much of these decisions.
Rather than requiring the wholesale exclusion of expert testimony
concerning credibility issues, these cases stand for the more
limited proposition that an expert's opinion that another witness
is lying or telling the truth is ordinarily inadmissible pursuant
to Rule 702 because the opinion exceeds the scope of the expert's
specialized knowledge and therefore merely informs the jury that
it should reach a particular conclusion. See, e.g., Bachman,
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953 F.2d at 441; Benson, 941 F.2d at 604-05; cf. Fed. R. Evid.
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704 advisory committee's note (evidence can be excluded pursuant
to Rule 702 if it "would merely tell a jury what result to reach,
somewhat in the manner of oath-helpers of an earlier day"). In
the present case, the district court precluded Dr. Phillips from
testifying rather than merely limiting his testimony to matters
that were within the scope of his expertise. Thus, the decisions
the government cites do not justify the court's ruling.
The government's position is further undermined by the
rules themselves which recognize that expert testimony may be
admitted to establish a witness's character for truthfulness.
Fed. R. Evid. 402 provides that all relevant evidence is
admissible unless its exclusion is required by the Constitution,
an act of Congress, or another rule, and no constitutional
provision, law, or rule requires the automatic exclusion of
expert testimony simply because it concerns a credibility
question. See Margaret Berger, United States v. Scop: The
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Common-Law Approach to an Expert's Opinion About a Witness's
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Credibility Still Does Not Work, 55 Brook. L. Rev. 558, 582-87
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(1989). Moreover, Fed. R. Evid. 608(a), governing the
admissibility of opinion testimony concerning a witness's
character, contemplates that truthful or untruthful character may
be proved by expert testimony. The advisory committee's note to
Rule 608(a) references Fed. R. Evid. 405(a), which describes the
acceptable methods for proving relevant character traits. Fed.
R. Evid. 608 advisory committee's note. Rule 405's advisory
committee's note, in turn, acknowledges that expert opinion
testimony is to be included within Rule 405's scope. Fed. R.
Evid. 405(a) advisory committee's note ("If character is defined
as the kind of person one is, then account must be taken of the
varying ways of arriving at the estimate. These may range from
the opinion of the employer who has found the man honest to the
opinion of the psychiatrist based upon examination and
testing."). Thus, the Federal Rules of Evidence permit expert
testimony to be offered in appropriate circumstances to establish
a witness's truthful or untruthful character.4
The government's fall-back position is that even if
expert testimony can be used to prove a testifying witness's
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4 Our decision in United States v. Kepreos, 759 F.2d 961 (1st
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Cir.), cert. denied, 474 U.S. 901 (1985), is not to the contrary.
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Although we noted in Kepreos that "there is no indication
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whatsoever that either the draftmen or Congress had in mind
admitting evidence of broad psychological traits or clinical
states such as 'repression' or 'dependency' or the other similar
characteristics . . . ," our observation was expressly limited
to broad and undefined psychological traits that were at issue in
that case. Id. at 965.
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untruthful character, it cannot be used to attack the reliability
of a defendant's out-of-court statements because the defendant is
a declarant, not a testifying witness. This argument, too, is
unavailing. Fed. R. Evid. 806 provides that:
When a hearsay statement, or a statement
defined in Rule 801(d)(2)(C), (D) or (E),
has been admitted in evidence, the
credibility of the declarant may be
attacked, and if attacked, may be
supported, by any evidence which would
be admissible for those purposes if
declarant had testified as a witness.
Although the rule does not expressly include attempts to attack a
defendant's out-of-court statements admitted pursuant to Fed. R.
Evid. 801(d)(2)(A), the Senate Judiciary Committee's report
concerning the proposed rules states:
The committee considered it unnecessary
to include statements contained in Rule
801(d)(2)(A) and (B) - the statement by
the party-opponent himself or the
statement of which he has manifested his
adoption - because the credibility of the
party-opponent is always subject to an
attack on his credibility.
S. Rep. No. 1277, 93d Cong., 2d Sess. (1974). We agree with the
Seventh Circuit Court of Appeals that the Senate Judiciary
Committee's report correctly states the law. United States v.
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Dent, 984 F.2d 1453, 1460 (7th Cir.), cert. denied, 114 S. Ct.
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(1993). Thus, we reject the government's argument for
categorical exclusion and turn to the district court's reasons
for excluding the evidence.
2. Did the district court properly exclude the
2. Did the district court properly exclude the
psychiatrist's testimony pursuant to Rule 702?
psychiatrist's testimony pursuant to Rule 702?
A district court's decision to admit or exclude expert
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testimony is entitled to great deference. United States v.
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Echeverri, 982 F.2d 675, 680 (1st Cir. 1993); United States v.
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Hoffman, 832 F.2d 1299, 1310 (1st Cir. 1987). Thus, we will
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reverse a decision on this, or any other evidentiary question,
only if: (1) the district court based the decision on an
incorrect legal standard, see United States v. Rahm, 993 F.2d
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1405, 1410 (9th Cir. 1993); United States v. Pelullo, 964 F.2d
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193, 198 (3d Cir. 1992), or (2) we have a "definite and firm
conviction that the court made a clear error of judgment in the
conclusion it reached based upon a weighing of the relevant
factors." United States v. Benavente G mez, 921 F.2d 378, 384
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(1st Cir. 1990) (internal quotations and citations omitted).
Applying this standard, we conclude that the district court erred
in excluding Dr. Phillips's testimony pursuant to Rule 702.
a. Rule 702's Requirements
a. Rule 702's Requirements
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Rule 702 consists of three distinct but related
requirements. First, a proposed expert witness must be qualified
to testify as an expert by "knowledge, skill, experience,
training, or education." Fed. R. Evid. 702; accord United States
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v. Paiva, 892 F.2d 148, 160 (1st Cir. 1989) ("a witness may
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qualify as an expert on any one of [Rule 702's] five listed
grounds"). Second, the expert's testimony must concern
"scientific, technical or other specialized knowledge." Fed. R.
Evid. 702; accord Daubert v. Merrell Dow Pharmaceuticals, Inc.,
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113 S. Ct. 2786, 2795 (describing criteria to be considered in
determining reliability of scientific testimony). Finally, the
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testimony must "assist the trier of fact to understand the
evidence or to determine a fact in issue." Fed. R. Evid. 702;
accord Daubert, 113 S. Ct. at 2795. Since the district court did
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not question Dr. Phillips's qualifications or the specialized
nature of his opinions, we focus our analysis on Rule 702's
assistance requirement.
The fundamental question that a court must answer in
determining whether a proposed expert's testimony will assist the
trier of fact is "'[w]hether the untrained layman would be
qualified to determine intelligently and to the best degree, the
particular issue without enlightenment from those having a
specialized understanding of the subject matter involved.'"
United States v. Montas, 41 F.3d 775, 783 (1st Cir. 1994)
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(quoting Fed. R. Evid. 702 advisory committee's note), cert.
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denied, 63 U.S.L.W. 3818 (U.S. 1995); accord United States v.
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Lamattina, 889 F.2d 1191, 1194 (1st Cir. 1989); United States v.
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Rivera Rodr guez, 808 F.2d 886, 888 (1st Cir. 1986). In
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answering this question, the court must first determine whether
the proposed testimony is relevant and fits the facts of the
case.5 Daubert, 113 S. Ct. at 2795-96; In Re Paoli R.R. Yard
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5 The concept of "fit" requires that a valid connection exist
between the expert's testimony and a disputed issue. Daubert,
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113 S. Ct. at 2796. Judge Becker, who coined the term,
illustrates the concept with the following example. If a
plaintiff contends that he or she developed cancer after being
exposed to chemical X and seeks to support that contention with
expert testimony that chemical X causes cancer in animals, the
testimony will not fit the facts of the case and should be
excluded unless the plaintiff also offers reliable expert
testimony that results observed in the animal studies are
transferable to humans. In Re Paoli R.R. Yard PCB Litig., 35
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PCB Litig., 35 F.3d at 742-43. The inquiry then shifts to
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whether the witness's opinions are based upon specialized skill,
training, or experience. Benson, 941 F.2d at 604; cf. Daubert,
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113 S. Ct. at 2796 (relaxation of Fed. R. Evid. 602's first-hand
knowledge requirement is justified for expert testimony because
an "expert's opinion will have a reliable basis in the knowledge
and experience of his discipline"). Unless the witness's
opinions are informed by expertise, they are no more helpful than
the opinions of a lay witness. Thus, such opinions cannot be
admitted pursuant to Rule 702 and instead must comply with the
requirements of Fed. R. Evid. 701 governing the admissibility of
opinion testimony by lay witnesses. See generally United States
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v. Jackman, 48 F.3d 1, 4-5 (1st Cir. 1995) (describing standard
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for admissibility of opinion testimony by lay witness). This
circuit has not decided whether, after Daubert, reliable
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testimony from a qualified expert may be deemed unhelpful under
Rule 702 even if these aspects of the rule's assistance
requirement are satisfied. But cf. In Re Paoli R.R. Yard PCB
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Litig., 35 F.3d at 747 (noting that challenges to expert
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testimony as prejudicial must be analyzed pursuant to Rule 403
rather than Rule 702). We need not resolve this question here
because, as we describe in detail below, the district court's
reasons for excluding the evidence are insufficient under any
plausible reading of Rule 702.
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F.3d 717, 743 (3d Cir. 1994), cert. denied, 115 S. Ct. 1253
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(1995).
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b. The District Court's Analysis
b. The District Court's Analysis
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Dr. Phillips was prepared to testify that Shay Jr.
suffered from a mental disorder that caused him to make grandiose
statements similar in nature to the statements that the
government was seeking to use against him. The district court
excluded the testimony because it concluded that the testimony
would not assist the jury in light of other evidence in the
record concerning the reliability of Shay Jr.'s statements.
However, whether or not the jury had the capacity to generally
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assess the reliability of these statements in light of the other
evidence in the case, it plainly was unqualified to determine
without assistance the particular issue of whether Shay Jr. may
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have made false statements against his own interests because he
suffered from a mental disorder. Common understanding conforms
to the notion that a person ordinarily does not make untruthful
inculpatory statements. See Fed. R. Evid. 804(b)(3) advisory
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committee's note (statements against interest are especially
reliable because "persons do not make statements which are
damaging to themselves unless satisfied for good reasons that
they are true"). Dr. Phillips would have testified that,
contrary to this common sense assumption, Shay Jr. suffered from
a recognized mental disorder that caused him to make false
statements even though they were inconsistent with his apparent
self-interest. Thus, Dr. Phillips was prepared to offer
specialized opinion testimony, grounded in his expertise as a
psychiatrist, that could have "explode[d] common myths" about
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evidence vital to the government's case. United States v. Moore,
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786 F.2d 1308, 1312 (5th Cir. 1986) (citations omitted). While
the record contains other evidence that Shay Jr. told lies and
boasted to an unusual degree, this evidence, standing alone, is
much less powerful than the psychiatric testimony that Dr.
Phillips was prepared to offer. Moreover, the court did not
express any concern that Dr. Phillips was unqualified or that his
testimony was unreliable because it concerned some novel or ad
hoc syndrome. Under all of the circumstances, it was a clear
error in judgment for the district court to exclude the testimony
under any plausible interpretation of Rule 702.6
3. Is a new trial required?
3. Is a new trial required?
Although a court may not exclude expert testimony
simply because it concerns a credibility question or because non-
expert testimony was presented on the same issue, it retains
ample discretion to exclude or limit such testimony for other
reasons. Even if expert testimony is admissible pursuant to Rule
702, it may be disallowed pursuant to Fed. R. Evid. 403 if its
prejudicial, misleading, wasteful, confusing, or cumulative
nature substantially outweighs its probative value. As the
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6 The district court also expressed concern that Dr. Phillips
should not testify because he might stray into the impermissible
subject of Shay Jr.'s mental capacity to commit the crime. This
concern, essentially that the testimony might have a prejudicial
effect, must be addressed pursuant to Rule 403's balancing test
rather than pursuant to Rule 702's helpfulness standard. See
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Daubert, 113 S. Ct. at 2798. Applying Rule 403, we conclude that
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the potential for prejudice cited by the court could have been
prevented by appropriate limitations on the scope of Dr.
Phillips's testimony. Thus, the court's concern cannot serve as
an independent basis for its decision.
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Supreme Court recently observed, "'[e]xpert evidence can be both
powerful and quite misleading because of the difficulty in
evaluating it. Because of this risk, the judge in weighing
possible prejudice against probative force under Rule 403 of the
present rules exercises more control over experts than over lay
witnesses.'" Id. at 2798 (quoting Weinstein, Rule 702 of the
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Federal Rules of Evidence is Sound; It Should Not Be Amended, 138
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F.R.D. 631, 632 (1991)).
The government argues on appeal that the district
court's decision should be affirmed because Dr. Phillips's
testimony does not sufficiently fit the facts of the case and
because the potential prejudice resulting from his testimony
substantially outweighs its probative value. We are unable to
address these arguments on the present record. The district
court did not hold an evidentiary hearing on these issues, nor
did the court make any findings that would support the exclusion
of the evidence for the reasons cited by the government.
Accordingly, the government's arguments must be addressed, in the
first instance, by the district court on remand. See United v.
___ ______
Streifel, 781 F.2d 953, 958 (1st Cir. 1986), appeal after remand
________ ______ _____ ______
sub nom, United States v. Quinn, 815 F.2d 156 (1st Cir. 1987).
___ ___ _____________ _____
Finally, we note that if the district court determines
on remand that Dr. Phillips should have been permitted to
testify, the exclusion of the testimony cannot be considered
"harmless error." Although not all erroneous exclusions of
evidence are harmful, where the exclusion "results in actual
-18-
prejudice because it had a substantial and injurious effect or
influence in determining the jury's verdict," reversal is
required. United States v. Legarda, 17 F.3d 496, 499 (1st Cir.)
_____________ _______
(internal quotations and citations omitted), cert. denied, 115 S.
____________
Ct. 81 (1994). Here, the statements at issue were vital to the
government's case.7 Moreover, although the court allowed Shay
Jr. to indirectly attack the statements through other evidence,
he was deprived of the opportunity to show that his statements
were the unreliable product of a recognized mental disorder.
Given the importance of the statements to the government's case
and the severe restriction placed on Shay Jr.'s ability to
challenge them, we cannot say that the exclusion of
Dr. Phillips's testimony did not substantially influence the
jury's verdict. See id.; United States v. Versaint, 849 F.2d
___ ___ _____________ ________
827, 832 (3d Cir. 1988) (error not harmless where improperly
excluded evidence went to heart of the defense); United States v.
_____________
Ouimette, 753 F.2d 188, 193 (1st Cir. 1985) (error not harmless
________
because excluded testimony was "the core of the defendant's
case").
B. Other Issues
B. Other Issues
____________
Shay Jr. argues that he is entitled to a new trial for
several additional reasons. We examine these claims to determine
whether a new trial is warranted irrespective of whether the
____________________
7 The district court acknowledged the importance of the
statements to the government's case at a side bar conference on
the fourteenth day of trial when it observed that without Shay
Jr.'s statements, "the government would be sunk."
-19-
court erred in preventing Shay Jr. from offering expert testimony
to attack his statements.
1. Shay Jr.'s communications with his former
1. Shay Jr.'s communications with his former
attorney
attorney
Shay Jr.'s former attorney, William McPhee, testified
as a defense witness that he received a copy of the Radio Shack
receipt from the government and gave it to Shay Jr. in May of
1992, prior to Shay Jr. making any statements about having
purchased the items from Radio Shack. He was also permitted to
testify that he and Shay Jr. had several discussions concerning
the receipt. However, Shay Jr. claims that the district court
improperly prevented McPhee from also testifying that Shay Jr.
told him that he had never seen the Radio Shack receipt before
May 1992. We conclude that Shay Jr. has forfeited his right to
raise this contention on appeal because the record does not
demonstrate that he adequately informed the court of the
substance of the excluded evidence. See Fed. R. Evid. 103(a)(2).
___
McPhee's proposed testimony raised several evidentiary
questions that the district court attempted to resolve in advance
of his actual testimony. Of particular concern to defense
counsel was the extent to which the court would deem McPhee's
testimony to result in a waiver of the attorney-client privilege
and open the door to cross-examination as to the substance of the
communications. In arguing that the testimony would not waive
the privilege, defense counsel repeatedly informed the court that
she did not propose to ask McPhee to describe the substance of
his conversations with Shay Jr. Further, in her voir dire
-20-
examination, defense counsel, true to her word, limited her
inquiry by not questioning McPhee concerning the substance of the
communications.
McPhee's testimony before the jury followed the path
traveled on voir dire. After handing McPhee the redacted copy of
the Radio Shack receipt, defense counsel asked McPhee the
following questions:
COUNSEL: And did you have one conversation
with Mr. Shay on [the subject of the Radio
Shack Receipt] or more than one conversation?
WITNESS: I had more than one conversation.
COUNSEL: Can you tell us 1,2,3,4?
WITNESS: As many as I could focus Tom in on -
-
GOVT: Your honor, I object.
COURT: You can or can't recall, tell us.
WITNESS: I can't recall the exact number of
conversations on the subject I had with Mr.
Shay.
COUNSEL: But the subject of the conversation
was --
GOVT: Objection to the subject of the
conversation.
COURT: I think he already answered your
question, Ms. Gertner. You may be going
further than you really want to.
COUNSEL: I want to make sure that the subject
of the repeated conversations was the Radio
Shack --
GOVT: Your honor, I object to the substance
of the conversation.
COURT: But you've already done it.
COUNSEL: I want to clarify that it was on the
subject of this document.
GOVT: Objection.
COURT: The objection is sustained.
At no point did defense counsel inform the court that she planned
to have McPhee testify that Shay Jr. had told him that he had
never seen the Radio Shack receipt before receiving it from
McPhee. To the contrary, counsel's representations, both before
-21-
and during the testimony, led the district court to reasonably
conclude that the additional testimony defense counsel sought to
elicit would only concern matters that had already been
adequately covered. Accordingly, Shay Jr. forfeited his right to
challenge the excluded evidence on appeal by failing to inform
the court in a timely manner of the substance of the excluded
evidence. Fed. R. Evid. 103(a)(2); United States v. Bonneau, 970
_____________ _______
F.2d 929, 933 (1st Cir. 1992); Earle v. Benoit, 850 F.2d 836,
_____ ______
847-48 n.13 (1st Cir. 1988).
2. The adequacy of the jury instructions
2. The adequacy of the jury instructions
Shay Jr. argues that the district court committed
reversible error in failing to instruct the jury in accordance
with his proposed instruction concerning the reliability of his
statements. Because Shay Jr. did not object to the court's
failure to give the proposed instruction,8 we review the issue
for "plain error." United States v. Nason, 9 F.3d 155, 160-61
_____________ _____
(1st Cir. 1993), cert. denied, 114 S. Ct. 1331 (1994).
____________
Although a defendant has a right to an instruction on
his theory of defense if that theory is valid and is supported by
the record, United States v. Flores, 968 F.2d 1366, 1367 (1st
______________ ______
Cir. 1992), he "has no right to put words in the judge's mouth.
____________________
8 Fed. R. Crim. P. 30 provides in pertinent part: "No party may
assign as error any portion of the charge or omission therefrom
unless the party objects thereto before the jury retires to
consider its verdict, stating distinctly the matter to which that
party objects and the grounds of the objection." Although the
defendant made several objections to the charge, none of those
objections addressed the court's instructions on witness
credibility or the reliability of Shay Jr.'s statements.
-22-
So long as the charge sufficiently conveys the defendant's
theory, it need not parrot the exact language that the defendant
prefers." United States v. McGill, 953 F.2d 10, 12 (1st Cir.
_____________ ______
1992); accord Nason, 9 F.3d at 161 (reversible error only if
______ _____
instruction was substantially correct, was not covered in charge
given, and failure to give it substantially impaired ability to
present a defense). In the present case, the district court's
instructions adequately covered the general subject of witness
credibility and the specific subject of the reliability of Shay
Jr.'s statements. Further, the instructions sufficiently
conveyed the defendant's theory that based on the defendant's
many contradictory statements, none of his statements should be
found reliable. Under these circumstances, it was not plain
error for the court to refuse to give the requested instructions.
3. Exclusion of expert testimony concerning
3. Exclusion of expert testimony concerning
diminished capacity
diminished capacity
Shay Jr.'s principal trial theory was that he was
uninvolved in the bombing. Nevertheless, prior to trial, he
filed a notice pursuant to Fed. R. Crim. P. 12.2 of his intention
to offer expert testimony on the subjects of insanity and
diminished capacity. In later seeking to obtain a favorable
ruling on a motion in limine, however, Shay Jr. informed the
court that his "lack of intent or knowledge [would not be] an
issue." Moreover, after the court denied his motion for a
bifurcated trial on the issue of insanity, defense counsel
informed the court that "we will withdraw any questions about
insanity because I believe quite clearly that it is not possible
-23-
to defend on the merits and insanity at the same time."
Notwithstanding these representations, Shay Jr. informed the
court on the 16th day of trial that he might seek to offer
evidence on the subject of diminished capacity. In prohibiting
him from raising the issue, the court found that Shay Jr. had
withdrawn his Rule 12.2 notice and that it would be "unfair to
the government at this late date to suddenly change horses
again." Shay Jr. challenges the court's finding that he withdrew
his Rule 12.2 notice and therefore contends that the court erred
in preventing him from offering expert testimony on the issue of
diminished capacity.9
We review for abuse of discretion the trial court's
determination that Shay Jr. withdrew his Rule 12.2 notice. Cf.
___
United States v. Cameron, 907 F.2d 1051, 1057 (11th Cir. 1990)
______________ _______
(applying abuse of discretion standard to district court decision
not to recognize defendant's notice under Rule 12). Since Shay
Jr. informed the court after filing the Rule 12.2 notice that his
knowledge or intent would not be an issue in the case and
expressly withdrew his stated intention to pursue any issue of
insanity, the record contains ample support for the district
court's conclusion that Shay Jr. withdrew his Rule 12.2 notice.
____________________
9 We have previously held that psychiatric evidence of
diminished mental capacity is inadmissible to negate mens rea.
United States v. White, 766 F.2d 22, 24-25 (1st Cir. 1985);
______________ _____
Kepreos, 759 F.2d at 964. Although we have more recently
_______
suggested that we might be willing to reexamine this holding in
light of recent precedents in other circuits, United States v.
_____________
L pez-Pe a, 912 F.2d 1536, 1541 (1st Cir. 1989), cert. denied,
__________ ____________
501 U.S. 1249 (1991), we need not do so here because we agree
with the trial court that Shay Jr. withdrew his Rule 12.2 notice.
-24-
Moreover, since Shay Jr. did not restate his intention to pursue
a diminished capacity defense until the trial was well underway,
we take no issue with the court's conclusion that it would be
unfair to the government to allow Shay Jr. to attempt to offer
evidence on the subject of diminished capacity. Accordingly, we
determine that the district court did not abuse its discretion in
preventing Dr. Phillips from testifying on the subject of
diminished capacity.10
____________________
10 Shay Jr.'s argument is also defective because he failed to
make a timely offer of proof with respect to his diminished
capacity evidence. See Fed. R. Evid. 103(a)(2). Although he
___
produced a report from Dr. Phillips, that report did not discuss
the subject of diminished capacity. Moreover, defense counsel
made no other offer of proof concerning the evidence she proposed
to offer on the subject. Accordingly, Shay Jr. forfeited his
right to challenge the evidence on appeal. Id.; accord Bonneau,
___ ______ _______
970 F.2d at 933 ("A party may not claim that evidence was wrongly
excluded unless the substance of the evidence was made known to
the trial court or the offer was apparent from the context.").
-25-
III. CONCLUSION
III. CONCLUSION
__________
For the reasons described herein, the case is remanded
to the district court for further proceedings consistent with
this opinion.11 We retain jurisdiction to review the district
court's conclusion as to whether it should permit Dr. Phillips to
testify.
____________________
11 In light of this result, we need not, at this point, reach
defendant's sentencing arguments.
-26-
