Thursday, April 08, 2004

9th Circuit Upholds Exclusion of Testimony re Child Interviews

An El Salvadoran woman living in the United States arranges for two men to smuggle her eight- and ten-year-old sons into the country. When the men show up to deliver the children, they announce a price change, from $500 to $800, and say they'll return with the boys when the parents come up with the cash. The parents call the authorities. Acting on police advice, the parents contact the two men to say they have the money. Police arrest the men when they show up for the exchange.

The FBI interview the eight-year-old boy five times over two years. In his sixth interview, the boy says, for the first time, that the men threatened him with abuse if his parents did not make payment. The boy testifies to the same effect at trial. The defendants want to rebut the boy's testimony with expert evidence about the suggestibility of children. The district court excludes the testimony as irrelevant, because "there is no relevant proffer to establish the necessity for expert testimony" on the subject.

The men are convicted and appeal. What result?

The Ninth Circuit affirms, because defendants' arguments about the late-breaking character of the boy's report are "speculative enough" that the panel cannot hold the district court's ruling to have fallen outside the range of its sound discretion. The panel does not reach the district court's alternative ground that the evidence would confuse the trier of fact under Fed. R. Evid. 403. See United States v. Carreno, No. 02-10464 (9th Cir. Apr. 6, 2004) (Wallace, Noonan, & McKeown, JJ.).
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.