Few federal cases have addressed the case reopening issue notes the Second Circuit in United States v. Crawford, 533 F.3d 133 (2d Cir. July 17, 2008) (No. 06-5059-cr)
After three weeks of trial, your case is finally in the jury’s hands. You have been waiting for their verdict. The judge’s chambers calls and tells you to come to court as the jury has a note. The jury raises a specific question about the evidence. Suddenly, it is clear that evidence was not introduced to answer the jury’s question. However, evidence can readily be provided to resolve the issue by calling one witness. Can the case be reopened at this late juncture? A recent Second Circuit case highlights the perils of reopening a case that has been submitted to the jury. Case reopening, the circuit suggested, should be allowed only with "extreme reluctance."
In United States v. Crawford, the defendant was prosecuted for possessing a firearm after being convicted as a felon. At trial, the government called an expert to establish the firearm (a .45 caliber semi-automatic pistol and ammunition) had moved in interstate commerce since it was manufactured in Spain. On cross-examination, the expert answered that he had not completed a trace on the firearm but perhaps the case agent had. The defendant testified and denied possessing the firearm. During closing argument, defense counsel noted that no testimony was admitted concerning a trace report.
During deliberations, the jury sent a note asking: “why wasn’t the gun traced to the original owner?” In discussing the issue with counsel, the court learned that a trace report had been provided to the defense. The trial court sua sponte decided to reopen the case. The agent testified about the trace report and the history of legal change in ownership which indicated a “Calvin Smith” was the last listed owner of the firearm. The prosecutor then asked whether the trace report had been provided to the defense, and the agent responded in the affirmative. The jury convicted the defendant.
The Second Circuit resolved an open issue concerning the proper standard to apply when deciding whether to reopen a case. It adopted the Fourth Circuit approach:
“The court must consider the timeliness of the motion, the character of the testimony, and the effect of granting the motion. The party moving to reopen should provide a reasonable explanation for failure to present the evidence in its case-in-chief. The evidence proffered should be relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused. The belated receipt of such testimony should not imbue the evidence with distorted importance, prejudice the opposing party’s case, or preclude an adversary from having an adequate opportunity to meet the additional evidence offered."United States v. Nunez, 432 F.3d 573, 579 (4th Cir. 2005) (alterations omitted; other citation omitted).
The Second Circuit reversed the conviction and remanded the case for a new trial after concluding that the “government provided no reasonable explanation for its failure to introduce the evidence during its case-in-chief, and [extraneous questions and] … evidence that Crawford’s counsel knew about the trace report prior to trial was not relevant and was highly prejudicial.” Crawford, 533 F.3d at 143. The Second Circuit noted that case reopening should be allowed only with “extreme reluctance.”
The lesson is that the failure to introduce relevant evidence at trial, at least in the Second and Fourth Circuits, comes at a high price. Only rarely will a reopening be permitted or withstand appellate review.
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