In capital kidnapping trial, excluding defense evidence suggesting an alternative perpetrator (based on two witnesses who were prepared to testify that they saw another individual possess “a firearm that looked similar to the murder weapon”) since a sufficient nexus between the charged kidnapping and murder and other individual was not established under FRE 401, so that its admission would encourage the jury to "rankly speculate" that this firearm was the one used the alleged kidnapping in violation of FRE 403, in United States v. Lighty, _ F.3d _ (4th Cir. Aug. 11, 2010) (Nos. 06-4069, 06-6, 09-6)
In a criminal case, evidence that someone other than the defendant was the perpetrator of the charged crime can be powerful evidence for the defense. While this type of evidence has a legitimate role in the creation of reasonable doubt, the Federal Rules of Evidence restrict such evidence when it tends to be too speculative. In a recent case the Fourth Circuit affirmed the conviction of a defendant after the trial judge excluded evidence suggesting someone other than the defendant did the charged crime. In affirming, the court noted the special role that relevance and concern about possible jury confusion (or speculation) play in applying FRE 401 and FRE 403 to assess the admissibility of the evidence.
In the case, defendant Lightly was charged with kidnapping and then killing the victim Hayes. He was convicted despite his defense that "centered on a denial of participation in the Hayes kidnapping and murder." As part of this argument, the defense claimed that other participants in the crime "could just as easily" shot the victim. In appealing the verdict of guilt, the defendant contended that the trial court had erred by excluding evidence the defense proffered that another participant, Mathis, could have perpetrated the kidnapping and killing. The evidence consisted of:
"testimony from two witnesses, Tamika Hampton (the mother of Tony Mathis' child) and Latasha Massey (Mathis' girlfriend), concerning Mathis' alleged December 2001/January 2002 possession of a firearm. According to the proffer, Hampton (in December 2001) and Massey (either in December 2001 or in January 2002) each saw Mathis with a firearm that looked similar to the murder weapon. The district court refused to permit the testimony, noting that the proposed testimony was 'just too tenuous.'"Lighty, __ F.3d at __.
The circuit acknowledged the defendant's constitutional right to present a defense. However, it also cautioned that this was not an open door to present just any evidence. Specifically, the defendant had no "right to present evidence that the district court, in its discretion, deems irrelevant or immaterial.” Lighty, __ F.3d at __ (quoting United States v. Prince-Oyibo, 320 F.3d 494, 501 (4th Cir.2003)). The circuit set out the criteria for making such a determination on admitting other perpetrator evidence:
"When determining whether evidence of an alternative perpetrator should be admitted at trial, courts have found that such evidence 'is relevant, but there must be evidence' of a 'connection between the other perpetrators and the crime, not mere speculation on the part of the defendant.' Alternative perpetrator cases thus balance two evidentiary values: the admission of relevant evidence probative of defendant's guilt or innocence under Rule 401 with the exclusion of prejudicial, misleading, and confusing evidence under Rule 403."Lighty, __ F.3d at __ (quoting DiBenedetto v. Hall, 272 F.3d 1, 8 (1st Cir. 2001); United States v. Jordan, 485 F.3d 1214, 1218-19 (10th Cir.2007) (there must be a nexus between the crime charged and the alleged alternative perpetrator))
The trial court excluded the other perpetrator evidence because there was no showing of a nexus between the criminal act charged and the alleged alternate perpetrator. The reason for requiring a nexus is that unless a nexus was present "the proffered testimony [as to an alternate perpetrator] would have caused the jury to rankly speculate that the gun allegedly possessed by Mathis was the gun used to kill Hayes, and Rule 403 is designed to, among other things, prevent the jury from engaging precisely in this type of speculation." Lighty, __ F.3d at __.
As applied to the evidence adduced in the defendant's case, it was clear that no nexus existed. According to the circuit:
"Neither Hampton nor Massey are experts in firearms, and the proffer did not contain an inkling why these witnesses felt there was a similarity between the firearm possessed by Mathis and the murder weapon. Moreover, Mathis' alleged possession did not occur in close temporal proximity to Hayes' kidnapping and murder, and there is no evidence that Mathis possessed a firearm on the day of the crimes. Finally, the proffered testimony would have shed no light on what transpired during Hayes' kidnapping and murder."Lighty, __ F.3d at __ (citing United States v. Jordan, 485 F.3d 1214, 1221 (10th Cir. 2007) (evidence of alternative perpetrator's possession of a weapon (similar to that possessed by the defendant) months before stabbing was 'suggestive' but inadmissible because such evidence did not connect alternative perpetrator to the defendant's crime and there must be a nexus between the crime charged and the alleged alternative perpetrator))
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