Federal Evidence Review

Despite an "absence of blood, tissue, or fingerprints" on a metal pipe that the prosecution proffered as the weapon used in defendant's assault on his victim with a deadly weapon, it was admissible in defendant's trial upon foundation testimony that the defendant had assaulted his victim with a "pipe," "pole," or "bar" and that the car where the pipe was found was the defendant's car, so that the pipe's lack of blood, tissue or fingerprints went to the pipe's weight, not admissibility under FRE 401, in United States v. Nadeau, 598 F.3d 966 (8th Cir. March 19, 2010) (No. 09-1599)

The dividing line between when evidence should be admitted in trial and when evidence is entitled to considerable weight by the finder of fact at trial is often difficult to discern. In a recent case, the Eighth Circuit described the difficulty that arose when an item allegedly used in a bloody, violent attack on the victim was found to be free of traces of blood, tissue or fingerprints. In noting this difficulty, the circuit dealt with distinguishing when evidence can be admitted at trial from when the evidence should be entitled to a particular weight at trial.

In the case, defendant Nadeau was charged with assaulting and seriously injuring victim James Bruce, an associate of the Short family, who had a "history of conflict" with the defendant's family. An incident occurred when Bruce was driving a car that belonged to Short and pulled over when he saw Nadeau following the car. "As James Bruce walked towards the vehicle that flashed its lights at him, one witness testified that Nadeau struck James in the face" with a pipe that Nadeau had placed in the car he was driving. As a result of the incident, Bruce was taken to the hospital with a fracture of the cheek bone, which required surgery. Nadeau, 598 F.3d at 967.

Police were summoned regarding the incident. They "came to the Nadeau home and observed a maroon Oldsmobile, identified as the vehicle Nadeau had ridden in on the night of the attack, parked in Nadeau's yard. Inside the car was the pipe later identified at the trial as Government Exhibit 3," the weapon the defendant used in the attack on Bruce. Over the defendant's objection, the trial court admitted the club as evidence. The defendant opposed this and:

"argued that the pipe should not be admitted into evidence because the officers who seized the pipe did not see anything on the pipe indicating the presence of blood or human tissue and police did not find fingerprints on the pipe that could be used for comparison purposes. Nadeau argued the pipe was not relevant because nothing connected it to the criminal conduct with which he was charged. The district court denied the motion ... finding the pipe to be relevant evidence. At the trial, Nadeau objected when the Government offered the pipe as Government Exhibit 3. The district court overruled Nadeau's objection and admitted the pipe into evidence."

The jury convicted the defendant and he appealed, citing the admission of Government Exhibit 3 as reversible error. The circuit affirmed the admission of Exhibit 3 and discounted the defendant's argument that exhibit was not relevant under FRE 401. As summarized by the circuit:

"Nadeau was charged with assault with a dangerous weapon. There was much testimony throughout the trial that Nadeau assaulted James Bruce with a pipe-like object. Bradley Bruce testified that he saw Nadeau hit James Bruce with an object in his hand and later hit him with what he described as a silver object. Leon Peltier testified that he observed James Bruce being struck by two men and they were hitting him with a pole and what looked like a red tire iron. He further testified that Nadeau came at Peltier with the pole. He identified the pipe admitted into evidence as Government Exhibit 3 as one of the objects that could have been used to strike James Bruce. Donald Decoteau testified that Nadeau hit James Bruce in the head with a pipe, which he described as a round bar. Brian Poitra, Jr., testified that two men were hitting James Bruce with bar-type weapons. He testified that although he was not able to get a good look at the object used to strike James Bruce, the pipe admitted as Government Exhibit 3 looked pretty close to what had been used. Nadeau's minor nephew, R.N., testified that he was present when Nadeau struck James Bruce with the pipe. He testified that Nadeau brought a bar or bar-like tool along in the car when they followed James Bruce's vehicle and the pipe admitted as Government Exhibit 3 was the pipe Nadeau used to strike James Bruce on the head and back. The pipe was removed from a car identified as the vehicle Nadeau was riding in on the night of the attack, and Kristy Nadeau and Nadeau's minor niece, J.V., testified that the pipe was in the vehicle on the night of the attack. The evidence was relevant because it had the tendency to make the existence of Nadeau's attack on James Bruce more probable and it had a tendency to prove that the attack was carried out by employing a dangerous weapon."

The circuit dismissed the defendant's challenge to the foundation for admitting Exhibit 3. It noted the defendant's argument that "the Government failed to present evidence connecting it to Nadeau or the assault because there was no hair, blood, or fingerprints on the pipe." Surely had the pipe been used in the attack there would be some reminant of the attack still evident when the police arrived. However, this "was a matter for the jury to consider when it determined what weight, if any, to give to the pipe. It also was a factor for the court to consider in determining the pipe's admissibility, but it certainly did not make the pipe irrelevant to the issues before the jury." Nadeau, 598 F.3d at 969. Acording to the circuit, “‘[t]he trial court has broad discretion in determining the relevancy and admissibility of evidence.’” Nadeau, 598 F.3d at 968 (citing United States v. Jiminez, 487 F.3d 1140, 1145 (8th Cir. 2007) (quoting United States v. Wallace, 722 F.2d 415, 416 (8th Cir. 1983)). The hurdle to admitting the evidence was modest: "Relevant evidence is defined as 'evidence having 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.'" As a result, the “threshold for relevance is ‘quite minimal.’” Nadeau, 598 F.3d at 968 (citing United States v. Holmes, 413 F.3d 770, 773 (8th Cir. 2005) (“All relevant evidence is admissible, except as otherwise provided by the Constitution, legislation, or applicable evidentiary rules, and conversely, all irrelevant evidence is inadmissible.”)

The apparently prestine condition of the pipe could, under some circumstances, mean that the pipe was not used in the alleged attack. This possibility did not trouble the circuit since it "was a matter for the jury to consider when it determined what weight, if any, to give to the pipe. It also was a factor for the court to consider in determining the pipe's admissibility, but it certainly did not make the pipe irrelevant to the issues before the jury. There was sufficient evidence presented which tied the pipe both to Nadeau and to the charged crimes to warrant its admission for the jury's consideration," concluded the circuit. Nadeau, 598 F.3d at 969.

The Nadeau case provides another example of the efforts of the courts to consider the dividing line between admitting evidence and weighing it. For other recent examples in other circuits, consult: Williams v. Wynne, 533 F.3d 360, 369-70 (5th Cir. 2008) (In review of administrative proceeding, "appellant argue[ment] that a gap in the chain of custody of the urine sample used for his drug test rendered that evidence inadmissible" was properly rejected by administrative hearing because "a break in the chain of custody would not necessarily render that evidence inadmissible; instead the nature of the break in the chain of custody would impact the weight of the evidence, not its admissibility."); United States v. Squillacote, 221 F.3d 542, 564 (4th Cir. 2000) (the fact that the prosecution bought the documents documenting defendant's crimes from unidentified sources, went only to the weight of the evidence when considered by the jury, and not to its admissibility).