Federal Evidence Review

In conspiracy and arson prosecution, after the trial court erred by admitting a folder allegedly belonging to the defendant which contained "anarchist articles," it compounded the error by excluding the defendant's rebuttal evidence of a film that the defendant had produced that she claimed showed she did not share the anarchist goals and strategies the prosecution attributed to her, in United States v. Waters, __ F.3d __ (9th Cir. Sept. 15, 2010) (No. 08-30222)

Occasionally one evidence error easily leads to others. A recent example of this confluence was discussed by the Ninth Circuit. The case, United States v. Waters, __ F.3d __ (9th Cir. Sept. 15, 2010) (No. 08-30222), was reviewed by theFederal Evidence Blog on September 24 (Ninth Circuit On Evaluating "Defendant's Choice Of Reading Material" Under FRE 403). The case involved a defendant charged with conspiring with "several radical environmentalists" in torching the office of a professor of horticulture. In her federal arson trial, the prosecution presented through the testimony of a cooperating co-conspirator (Kolar) a file that contained “anarchist literature.” The defendant "admitted to giving Kolar a folder of articles, but claimed that the articles she gave Kolar were about 'women and activism and vegetarianism,' not anarchist political theory." The Ninth Circuit reversed and remanded, finding that a "defendant's choice of reading material will rarely have a particularly significant probative value," and that the trial judge had failed to make the required findings to admit the evidence on that basis.

In addition to noting this error, the circuit discussed the defense response to the trial court admitting the anarchist literature. The defendant offered rebuttal evidence which consisted of:

"a documentary film that Waters produced before and during the time period of the UW arson. The film, entitled Watch, documented a peaceful protest against a clear-cutting project in Randle, Washington. Waters produced and filmed the video herself, beginning in 1999 and continuing for a number of years. She offered it into evidence to establish that she was devoted to peaceful means of protest, and to rebut the prosecution's evidence suggesting that she identified with ELF's tactics."

The circuit acknowledged that whether the film should be admitted was "a close question." It was close not because it was questionable evidence. Rather, it risked being duplicative since "[m]any of the video's facts came out during the course of trial, and a number of Waters' character witnesses testified about her role in the documentary. Thus, although she was unable to show the jury the video, she was able to present the substance of her defense." Waters, __ F.3d at __.

But having made an error in admitting the file of anarchist literature, the circuit seemed to imply that had the court admitted the defendant's film, it might have neutralized its prejudicial impact:

"In light of the district court's decision to allow the anarchist literature into evidence, however, excluding the video was certainly an abuse of discretion. The district court's rulings allowed the government to rely on 'other acts' evidence to establish that Waters identified with ELF's goals and tactics, while prohibiting Waters from rebutting that evidence with evidence that demonstrated her commitment to the values she claimed to hold. These rulings, in combination, assured that the jury would be provided with a one-sided picture of Waters. The jury saw her connected to violent anarchist propaganda that it may have had a visceral reaction to, while it was prevented from viewing evidence that would paint a contrasting picture of Waters as a person. Given the imbalance in the evidence that resulted from the district court's rulings, we hold that the district court abused its discretion when it excluded the video in these circumstances."

Read one way, the case suggests that two evidence wrongs sometimes can make a right. The undue prejudice of admitting the defendant's reading material in violation of FRE 403 could have been balanced by allowing the defendant to show her film (even though the film was possibly duplicative of other evidence admitted at trial).