Federal Evidence Review

Majority holds the trial court’s denial of access to confidential informant’s mental health records violated the Due Process Clause and restrictions on cross-examination violated the Confrontation Clause, in United States v. Robinson, 583 F.3d 1265 (10th Cir. Oct. 20, 2009) (No. 08-3120)

On the eve of trial, new information is provided about the informant’s mental health history. The trial court reviews the records and declines to provide them to the defense and restricts cross-examination of the information about the mental health issues and use of prescription medication. A divided panel disagreed whether the conviction should be reversed.

In the case, defendant Robinson purchased a firearm from a confidential informant and was charged with being a felon in possession of a firearm. The informant was involuntarily committed to a mental health facility six days prior to trial. The government disclosed that the informant’s mother had him committed involuntarily after believing he was suicidal. The mental health records were provided to the trial court in camera. The court also held an ex parte, in camera hearing with the informant’s psychiatrist, who opined that the informant would testify “truthfully.”

The defense objected, relying on United States v. Lidstrom, 698 F.2d 1154, 1159-64 (11th Cir. 1983) (Confrontation Clause was violated by limiting cross-examination concerning a witness’s psychiatric history). The records contained information about: “(1) illegal drug use by the CI; (2) the CI’s mental health condition; and (3) the CI’s use of prescription medications at the time of trial.” The court denied defense access to the records and granted the government’s motion to deny cross-examination about the informant’s mental condition and use of prescription drugs, which the court viewed as not material. The jury convicted the defendant and he was sentenced to 33 months’ imprisonment. On appeal, the defendant challenged the denial of access to the records and limitations on cross-examination.

A majority panel of the Tenth Circuit reversed the conviction. As the majority explained:

“Because of the restrictions imposed by the district court, the jury saw an incomplete and inaccurate picture of the CI’s [confidential informant’s] credibility. From the jury’s perspective, the CI had only ‘a little bit’ of a drug problem and was not ‘regularly’ violating his agreement with the ATF by using drugs. By that version of events, the CI had largely reformed himself after becoming an ATF informant. Further, although the CI had trouble remembering various details about the events in question, he testified that the only reason for his memory loss was that two years had elapsed by the time of trial. Nothing in the testimony the jury heard suggested that the CI had a reduced capacity to observe or narrate. Had defense counsel been permitted to view the medical records and conduct a proper cross-examination, the jury would have seen a different picture. It would have learned that the CI had been a heavy drug user since 2000 and had recently been abusing alcohol, cannibis, opioids, benzodiazepine, Valium, Klonopin, Darvocet, and Hydrocodone. The medical records contain admissions by the CI that he had smoked a half-pound of marijuana in a single day shortly before trial and that he had been smoking up to a pound of marijuana per week. The jury would also have heard that the CI had a ‘long history of mental illness’ starting in 2000, which included auditory hallucinations, seeing ‘things out through the window that are not really there,’ and ‘hearing voices telling him to do thing[s].’ If the jury had been aware of this information, it may well have rejected the CI’s testimony, without which Robinson could not have been convicted.”

Robinson, 583 F.3d at 1267.

The majority disagreed with the dissent that the Due Process issue was subject to plain error review since the court was aware of the argument based on the cases cited by the defense. The majority noted the central role of the informant’s testimony: “Because the CI was the only witness who testified about Robinson’s possession and because his testimony was essentially uncorroborated, the CI’s credibility was of paramount concern.” Consequently, the error was not harmless beyond a reasonable doubt.

The majority held that the Confrontation Clause was violated by the restrictions on cross-examination about the informant’s mental health and use of prescription medication. The jury was deprived of evidence concerning his ability to perceive and recall what transpired and the informant’s credibility. On this point, the majority noted:

“Had the jury learned that the CI had recently admitted to ‘hearing voices,’ ‘seeing things out the window that [were] not really there,’ and experiencing suicidal ideation, it could have reasonably concluded that the CI had a reduced capacity to observe, remember, and recount. Absent the district court’s restrictions on cross-examining the CI about his hospitalization, Robinson would have likely revealed these problems with perception and narration, along with the CI’s ‘long history of mental illness.’”

Robinson, 583 F.3d at 1276.

Circuit Judge Tymkovich dissented. He concluded the defendant failed to raise the Due Process issue before the trial court and had not shown plain error. He agreed with the trial court that disclosing the mental health records was not material. Second, cross-examination concerning the informant’s mental health was unfairly prejudicial under FRE 403. While the limitation on cross-examination concerning the use of prescription medication was error, it was harmless beyond a reasonable doubt. While no one else was present when the informant sold the firearm to the defendant, other key aspects of the controlled buy were corroborated by the agent. There was no evidence controverting the central details of the transaction. The defense was allowed to cross-examine the informant on other matters and the jury could properly assess his credibility.

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