In United States v. Preston, --- F.3d ---, No. 15-10521 (9th Cir. 2017), the Court vacated the defendant's convictions for aggravated sexual abuse of a child, and remanded for a new
trial.
Given the number of errors identified by the Court, this case is a must read.
Here are some highlights:
1. The Court's discussion of when and how to employ cumulative error analysis is very helpful.
Where, however, as here, there are multiple trial errors, “‘a balkanized, issue-by-issue . . . review’ is far less effective than analyzing the overall effect of the errors in the context of the evidence introduced at trial against the defendant.” United States v. Frederick, 78 F.3d 1370, 181 (9th Cir. 1996) (quoting United States v. Wallace, 848 F.3d 1464, 1476 (9th Cir. 1988)). This is because the cumulative effect of multiple trial errors “‘can violate due process even where no single error . . . would independently warrant reversal.’” Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citation omitted); see also, e.g., Thomas v. Hubbard, 273 F.3d 1164, 1181 (9th Cir. 2011). In deciding whether the combined effect of multiple errors prejudiced a defendant we ask whether the errors stand in “‘unique symmetry . . . , such that [they] amplify each other in relation to a key contested issue in the case.’” Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011) (quoting Parle, F.3d 505 at 933).
2. There is also a very helpful discussion of a witness commenting on the alleged victim's truthfulness. As part of this discussion, the Court rejected the government's argument about invited error.
3. There is a good discussion explaining that a lay witness may not provide general opinion testimony based on his or her experience.
4. The Court found error in allowing the alleged victim's brother to testify that, when he heard about the allegation, “there wasn’t any questioning my
brother about what he was saying.” The Court explained, "one reasonable way of interpreting it is that Barry found 'what
[his brother] was saying' to be beyond question." Thus, "[b]ecause a reasonable juror would have understood this
testimony as Barry professing his belief in the veracity of his
brother’s allegations, permitting this testimony was plain
error."
5. The Court found plain error in allowing an agent to testify that, during the interrogation, he told the defendant he "did not believe him." The Court held: "It was [] plainly erroneous
for the district court to allow [the agent] to testify that he did
not believe [the defendant's] denial of Rosenberg’s allegations."
6. The Court found error in allowing the defendant's ex-wife to testify about his alleged post-conduct sexual fantasy:
[T]he district court abused its discretion in two ways. First . . . the district court must find that the “other act” sought to be introduced under 404(b) to prove intent is similar to the crime charged. Here, the district court found only that the age of Preston’s stepson in the photograph to which Preston masturbated (8 years old) was similar to Rosenberg’s age when Preston allegedly molested him (10 years old). This finding does not adequately explain or discuss how the act of masturbating to a picture of a boy in underwear—a non-criminal act—is similar to the crime of real-life sexual abuse of a child.
Second, the district court abused its discretion by finding the evidence admissible under Rule 403.
[A]s this Court has recognized, in many cases, the “link between fantasy and intent is too tenuous to be probative,” as “[p]eople commonly fantasize about doing things they have no intention of actually doing.” And fantasy is even less probative of intent in cases where, as here, intent is not actually disputed—that is, where the defense is a general denial of committing the offense, rather than an admission to an act coupled with a specific denial of the requisite intent.
7. The Court also found numerous instances of prosecutorial conduct in commenting on the defendant's failure to testify, vouching for the victim, and misstating evidence. One is particularly worth noting.
The government
stated in summation: “[Rosenberg] was sexually abused. He
told you under oath on the stand. There’s no evidence,
there’s no testimony in this case that contradicts Tim
Rosenberg’s testimony.”
The Court found this improper, explaining: "where a defendant is the only possible
witness who could rebut the testimony of the government
witnesses, it is inappropriate for a prosecutor to point out the
lack of witnesses or testimony on the other side, because this can only cause the jury to naturally look to the only
other evidence there is—the defendant—and, hence, this
could be a prohibited comment on the defendant’s failure to testify."
