When The Door Is Not “Opened”

In voter fraud trial, in considering the “Opened Door” Doctrine, circuit concludes that the defense did not “open the door” to evidence concerning procedures to withdraw her voted ballot because it was the government that introduced the testimony on this issue, even though the trial court had previously ruled it was inadmissible, in United States v. Prude, 489 F.3d 873 (7th Cir. June 14, 2007) (No. 06-1425)

The “Opened Door” Doctrine allows a party to admit evidence that may otherwise be irrelevant or inadmissible. See, e.g., Stockman v. Oakcrest Dental Center, 480 F.3d 791, 799 (6th Cir. 2007) (evidence of settlement negotiations admitted in employment discrimination trial to show efforts to mitigate damages under the “another purpose” exception of FRE 408 was erroneous because the evidence demonstrated an element of liability or damages in the trial; defendant’s assertion of a mitigation defense did not open the door to such evidence). In a situation where both contending parties have effectively facilitated the questioning of a witness about otherwise inadmissible evidence, has the door been opened to this evidence, and if so, what way? The Seventh Circuit previously had occasion to explore this issue.

In the case, defendant Prude was charged with voter fraud for casting a ballot when she was ineligible as a convicted felon for forgery. At her bench trial, the court excluded testimony by the Director of the local Election Commission concerning procedures used by officials to withdraw a voted ballot, such as the one the defendant allegedly cast. The court excluded this evidence as irrelevant under FRE 401. Despite this ruling, the Chief Inspector of the polling place testified over government objection that the defendant told him "something about calling the Election Commission to withdraw her vote.” The jury convicted the defendant. The defendant appealed, claiming that the trial court should not have excluded the testimony of the election commissioner himself, but nonetheless admitted the testimony of the inspector. The government's response was that the defense had opened the door to the vote withdrawal procedures when the defendant asked the investigator about the defendant’s statements. Prude, 489 F.3d at 879.

The Seventh Circuit affirmed the trial court and concluded the door had not been opened at trial. The testimony concerning procedures for withdrawing or challenging a vote was reviewed for plain error since no objection was made at trial by the defendant. The circuit noted that the trial court indicated it would allow the defendant to testify about her subjective belief that she was not precluded from voting without exploring the objective procedures to withdraw a vote. As the circuit summarized:

We think it clear that [Election Commission] Director Edman’s proffered testimony, as sought to be introduced by the defense, and [investigating] Officer Saxton’s testimony, as elicited by the Government, covered identical topics. Yet, the district court excluded the Director’s testimony as irrelevant and inadmissible, but admitted the Officer’s without objection. In short, the Government introduced testimony on a topic that the court already had ruled inadmissible. The Government’s contention that Ms. Prude opened the door in her direct examination of Officer Saxton is plainly contrary to the court’s earlier ruling on Director Edman’s testimony.
Prude, 489 F.3d at 880.

While the door had not been opened, the defendant's failure to object at the time to the witness's testimony subjected her subsequent claim of error to plain error review. This standard required as one of its elements that the outcome of the trial would have been different had the error not occurred. The circuit found little reason to believe that a different result would have occurred had the testimony been excluded. Other witnesses "had placed statements" to which the defendant now objected before the jury. While the evidence the investigator's testimony that the court had admitted was "perhaps more detailed, [but] added little to the record. It was cumulative of prior testimony, all of which was uncontroverted." The circuit then applied a FRE 403-type of balancing of probative value with possible unfair prejudice. It found that the statements "is of only marginal, if any, relevance to the issue of Ms. Prude’s guilt. Under these circumstances, we cannot conclude that the admission of this testimony constitutes error reversible by this court." Prude, 489 F.3d at 880.

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