Circuit Consensus On Evidence Of An Experiment?

Court In felon in possession of firearm prosecution, admission of law enforcement experiment timing a drive from location of the shooting to where defendant’ alibi implied he picked up his girlfriend after time of the alleged shooting, was not unfairly prejudicial in attempting to rebut the defendant's alibi since jury was free to give the evidence little weight if it thought conditions of experiment too dissimilar to defendant's actual drive at time in question, in United States v. Jackson, 479 F.3d 485 (7th Cir. Mar. 12, 2007) (No. 05-4309)

Several years ago, the Seventh Circuit noted what seemed to be a growing consensus among the circuits on the appropriate test for dissimilarities in experiments to disprove the likelihood of a sweeping theory, rather than to recreate an event. The circuit noted this consensus envisioned the appropriate test to involve cross-examination and would not bar admission of such experimental evidence. It described how it would work in its decision in United States v. Jackson

In the case, defendant Jackson was tried as a felon in possession of a firearm. The defense tried to cast doubt on the only witness’ account of the defendant being at the scene of the shooting by introducing testimony from the defendant’s girlfriend who stated that on the day of the shooting she had “called him at his house at 1:40 or 1:45 p.m. and asked him to pick her up at 2:30 p.m. Her timecard shows that she punched out at 2:43 p.m., and she testified remembering that Jackson was there waiting for her at that time. She also testified that in her own experience, the drive from Jackson's house to her work took between 20 and 30 minutes. The defense's theory was that Jackson could not have shot at Watkins shortly after 2:00 p.m., because he would have been on his way” to pick her up. Jackson, 479 F.3d at 487.

The government was able to meet the challenge posed by this alibi testimony. On the evening of the day of her testimony, the prosecution had a U.S. Marshal drive from the shooting scene to the girlfriend’s work. The officer then testified “that the drive, which was 7.4 miles long, took twelve minutes. He testified that he selected what he knew from familiarity with the area to be the shortest route, that he was stopped by red lights at over half of the stoplights, that he conducted the experiment shortly after 7:00 p.m., and that for one portion of the drive he exceeded the speed limit in order to keep up with the flow of traffic.

The defense, which objected to the introduction of the evidence, cross-examined the marshal, attacking his experiment because it was not based on the specific route that Jackson used that day, because traffic patterns would vary between night and day, and because his speeding would have affected the overall drive time.” Jackson, 479 F.3d at 487. The defendant was convicted and appealed, based in large part on the admission of the Marshal’s experiment.

The circuit affirmed the admission of the experiment evidence. The circuit noted that evidence of an experiment “can be quite persuasive” and that courts focus on whether the experiment created a risk of unfair prejudice. The standard employed in making this determination is whether the experiment is performed under “substantially similar” conditions to those surrounding the event being stimulated. Jackson, 479 F.3d at 489 (citing Mihailovich v. Laatsch, 359 F.3d 892, 908 (7th Cir. 2004) (“In applying this standard, we have emphasized that ‘substantially similar’ does not mean ‘identical,’ and that the range between similar and identical is a matter to be addressed on cross-examination.”) (quoting Buscaglia v. United States, 25 F.3d 530, 533 (7th Cir. 1994), citing Estate of Carey by Carey v. Hy-Temp Mfg., Inc., 929 F.2d 1229, 1235 n.2 (7th Cir. 1991)). The Circuit emphasized that this established “a flexible requirement: ‘substantially similar’ does not mean ‘identical,’ and dissimilarities can be explored on cross-examination. In other words, as a general matter, ‘dissimilarities between experimental and actual conditions affect the weight, not the admissibility of the evidence.of the evidence.’” Jackson, 479 F.3d at 489 (citations omitted)).

In applying this standard of substantial similarity “in a criminal case or a civil” case, the circuit cautioned that “the requirement's application always depends on the purpose for which the experiment is introduced.” Jackson, 479 F.3d at 489 (citing Jones v. Ralls, 187 F.3d 848, 853 (8th Cir.1999) (no error in admitting experiment demonstrating kneeling wristlock that police officers used on victim whose civil rights complaint alleged the officer used excessive force resulted in positional asphyxia, although the demonstration did not accurately reflect actual incident, the purpose of the presentation was to demonstrate how an officer would apply the technique, the jury was notified of experiment's limited purpose, and plaintiff was allowed to cross-examine officer and draw out other differences between demonstration and actual events)). The circuit noted various resitrictions, including:

  • Event Recreation: If the purpose of the experiment “is to recreate an event, the timing and physics of which are critical, courts will only admit evidence of experiments that are conducted under nearly identical conditions as the actual event.” Jackson, 479 F.3d at 489 (citing Jackson v. Fletcher, 647 F.2d 1020, 1026-28 (10th Cir. 1981) (it was error to admit evidence of experiment to recreate an accident between a car and a truck in order to determine the precise speed of the truck at the time of collision since the simulation truck was empty whereas the actual truck carried a full load and the two trucks were different model years, so that the experimental conditions were not substantially similar to the actual ones)
  • Rebut Or Falsify “Opposing Party’s Sweeping Hypothesis”: Where the purpose of the experiment is to rebut the opposition’s “sweeping hypothesis,” the substantial similarity requirement is “relaxed.” Jackson, 479 F.3d at 489 (citing Osborne v. United States, 542 F.2d 1015, 1019-20 (8th Cir. 1976) (in robbery trial, allowing experiment of officer driving same distance as defendant alleged in his alibi evidence, even though under different conditions because “the experiment did not purport to recreate events as they actually occurred on the day of the robbery but rather established whether it was physically possible for [the defendant] to have traversed the distance” defendant contended he was traveling at the time of the crime)).

The circuit also noted that other circuits treat dissimilarities in experiments to disprove the likelihood of a sweeping theory as a matter for cross-examination and not as something that would “bar its admission in the first place.” The circuit noted several examples, including:

  • Tenth Circuit: United States v. Birch, 39 F.3d 1089, 1092-93 (10th Cir. 1994) (no abuse of discretion to admit, in order to “illustrate and clarify testimony already given by defendant on direct examination” about the shooting at issue a courtroom demonstration in which chairs were placed side-by-side simulating front seat of car and defendant was asked to show how shooting by alleged passenger occurred, which was followed by testimony that bullet fired from gun in position demonstrated by defendant could not have had trajectory of bullet that wounded federal agent)
  • Fourth Circuit: United States v. Russell, 971 F.2d 1088, 1105-06 (4th Cir. 1992) (admitting experiment of test firings of gun similar to that used in alleged murder because the significance of the differences between conditions at time of alleged murder and conditions prevailing at time of test firings went to the weight of the evidence and not a question of admissibility for the trial judge), cert. denied, 506 U.S. 1066 (1993)
  • Sixth Circuit: United States v. Baldwin, 418 F.3d 575, 581 (6th Cir. 2005) (although no error in excluding defendant’s videotaped reenactment offered to show defendant was physically capable of unzipping his pants and urinating while allegedly bound in his car was excluded because the video was not shot in defendant's car, it differed from the circumstances of the alleged kidnapping, such as in depicting a rope as not knotted although the rope had been knotted when defendant was found and the front seat in the video was bent forward, directly affecting the amount of space defendant had to move around, circuit noted that trial court would not have abused discretion had it admitted the evidence)

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