Witnesses

1. ARS 13-1407 Defenses (1998 version)
   Evidence of reputation or prior acts to demonstrate the unchastity of the victim and a sexual assault prosecution is inadmissible, except if the defendant can show that the victim has made unsubstantiated charges of rape in the past. See:
   State v. Superior Court, 154 Ariz. 624, 744 P. 2d 725 (Ct. App. 1987)

2. Cummings v. Malone, 995 F.2d 817 (8th Cir. 1993)
   Ability to introduce specific prior crime is not a license to flaunt its details; cross examiners are limited to eliciting the name, date and disposition of felony committed.

3. Francis v. Clark Equipment Co., 993 F.2d 545 (6th Cir. 1993)
   Refusal to permit cross examination of witness concerning matters testified to on direct examination constitutes prejudicial error.

4. G.L.J. Note page 1605, 1606 (1994)
   “Many children have trouble distinguishing fact from fiction and are willing to lie if they are rewarded for telling such stories.”

5. Harris v. White, 745 F.2d 523 (8th Cir. 1984)
   The Sixth Amendment establishes the right of a defendant to require the presence of a witness at trial and implies a reciprocal right for the government.

6. Hubbard v. US, 514 US 131 L.Ed.2d 779, 115 S.Ct. (1995)
   Federal court held to be neither department nor agency within meaning of 18 USCS §1001, proscribing false statements made in matter within jurisdiction of federal department or agency.

7. Kopf v. Skyum, 993 F.2d 374 (4th Cir. 1993)
   Person may qualify to render expert testimony in any one of five ways listed in rules governing admissibility of expert testimony; knowledge, skill, experience, training or education.

8. Mesareosh v. US, 352 US 1, 1 L.Ed.2d 1, 77 S.Ct. 1 (1956)
   Truthfulness of testimony... "The dignity of the United States Government will not permit the conviction of any person on tainted testimony."

9. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639
   Respondent was convicted by a jury in a Virginia state court of rape and abduction. The trial judge denied respondent's counsel's pretrial motion to discover the victim's statements to police describing her assailants, their vehicle, and the location of the alleged rape. Without consulting respondent, counsel filed a petition for appeal that failed to include any claim that the trial judge erred in not permitting counsel to examine the victim's statements, notwithstanding a Virginia Supreme Court Rule providing that only errors assigned in the petition for appeal will be noticed and that no error not so assigned will be admitted as a ground for reversal. The Supreme Court, Justice O'Connor, held that petition for habeas review of procedurally defaulted discovery claim was subject to dismissal for failure to establish cause for default. Reversed and remanded.

10. Starkins v. Bateman, 150 Ariz. 537, 724 P.2d 1206 (Ct. App. 1986)
    Witnesses have a right to testify about their opinions concerning the mental condition of a party.

11. State v. Castro, No. 1 CA-CR 12318, Court of Appeals of Arizona, Division One, Department D, 163 Ariz. 465; 788 P.2d 1216; 1989 Ariz. App. LEXIS 321; 48 Ariz. Adv Rep. 34, November 24, 1989 , Reconsideration Denied January 24, 1990. Review Denied April 17, 1990. Reversed and Remanded.
    The trial court violated defendant's right to confrontation when it precluded defendant from cross-examining victim regarding medical emergency resulting from her self-induced abortion or miscarriage, which prompted her to accuse defendant of rape.

12. State v. Hopkins, 1 CA-CR 91-1576, COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT E, 177 Ariz. 161; 866 P.2d 143; 1993 Ariz. App. LEXIS 194; 147 Ariz. Adv Rep. 59, September 9, 1993, Filed , Petition for Review DENIED on February 1, 1994 by Arizona Supreme Court No. CR-93-0525-PR. REVERSED AND REMANDED
    Defendant could obtain reversal of his conviction for sexual abuse of minor and child molestation; trial court's admittance of evidence of emotional propensity to molest based on acts as remote in time as 10 years required reliable medical testimony.

13. State v. Hummer, 184 Ariz. 603, 911 P.2d 609 (Ct. App. 1995)
    Expert testimony is appropriate when the trier of fact cannot understand the evidence or determine a fact in issue without specialized knowledge.

14. State v. Hummert, 188 Ariz. 119
    This case is unlike Bible and Johnson because it involves a qualitative, not quantitative, description of the significance of a match. The experts in this case testified that they had never seen two samples from unrelated donors that matched over three probes, that the possibility of a random match was "rare," and that DNA can "uniquely identify" a person. These conclusions [***32]  were based upon their own scientific experience. Neither expert relied upon a controversial scientific principle. I agree with the court, therefore, that Frye is not applicable. The experts' opinions concerning the "uniqueness of DNA" and their personal experience are admissible under Rule 702, Ariz. R. Evid. The data supporting their opinions are admissible under Rule 703, Ariz. R. Evid. We are judges, not scientists. It is enough for us to be able to identify the legitimacy of a principle and its proponents so as to exclude junk science. Qualitative descriptions of the significance of a match are admissible.

15. State v. Martin, No. 1 CA-CR 5542, Court of Appeals of Arizona, Division One, Department B, 135 Ariz. 556; 663 P.2d 240; 1982 Ariz. App. LEXIS 685, September 23, 1982 , Review Granted December 7, 1982. Reversed and remanded. Judgment reversed, 663 P.2d 236
    
    Defendant's child molestation conviction was reversed because the trial court improperly admitted prior consistent statements of the 11-year-old victim that were made after defendant married her mother, when she had a motive to falsify her story.

16. State v. Moran, No. 6753-PR, Supreme Court of Arizona, 151 Ariz. 378; 728 P.2d 248; 1986 Ariz. LEXIS 300, November 19, 1986. REVERSED AND REMANDED.
    
    It was improper to allow testimony by experts vouching for the credibility of a victim of sexual abuse, and when there was no evidence of the crime other than the victim's statement, the error was prejudicial to defendant.

17. State v. Ortega, 2008 WL 4571814 (Ariz. App. Div. 2)
    Defendant was convicted in the Superior Court, Pima County, No. CR20071579,Nichols, J., of sexual conduct with minor, molestation of child, and threatening and intimidating. Defendant appealed. The Court of Appeals, Vásquez, J., held that:
    (1) whether victim was less than 15 years of age was element of sexual conduct with minor;
    (2) separate convictions for sexual conduct with minor and child molestation arising from same act violated prohibition against double jeopardy; and
    (3) prosecutor was permitted to use transcript of witness' interview with police about alleged threats defendant made against witness to refresh witness' recollection. Conviction and sentence for molestation of child vacated; otherwise affirmed.
    
18. State v. Rivera, No. 5953-PR, Supreme Court of Arizona, 139 Ariz. 409; 678 P.2d 1373; 1984 Ariz. LEXIS 196, February 16, 1984 , Reconsideration Denied April 3, 1984. Reversed and remanded
    Child molestation conviction was reversed. Child's statement to her mother regarding molestation was not excited utterance exception to hearsay where there was no evidence of stress or excitement, and thus, it should not have been admitted at trial.

19. State v. Roberts, No. 4898, Supreme Court of Arizona, 126 Ariz. 92; 612 P.2d 1055; 1980 Ariz. LEXIS 224, May 19, 1980 , Rehearing Denied June 24, 1980. Reversed and remanded.
    Defendant was improperly convicted of child molestation when a trial court denied his motion to invoke the rule on exclusion of witnesses because exclusion was mandatory upon request and prejudicial if not granted.

20. State v. Salzman, No. 2 CA-CR 2944, Court of Appeals of Arizona, Division Two, 139 Ariz. 521; 679 P.2d 544; 1984 Ariz. App. LEXIS 371, January 12, 1984 , Review Denied April 10, 1984.
    
    The wife's claim of marital privilege did not prevent the state from forcing her to testify against her husband because the privilege did not pertain in a case in which a child's abuse was at issue.  

21. State v. Thompson, 169 Ariz. 471, 820 P.2d 335
    Defendant was convicted in the Superior Court, La Paz County, Cause No. CR-86-140, Michael Irwin, J., of sexual conduct with minor, and defendant appealed. The Court of Appeals, 167 Ariz. 230, 805 P.2d 1051, reversed and remanded. The Supreme Court granted review and remanded. The Court of Appeals, McGregor, J., held that: (1) hearsay statements of victim were not admissible under excited utterance exception; (2) videotaped interview of victim was not admissible as statement made for purpose of medical diagnosis or treatment; and (3) erroneous admission of hearsay statements was not harmless. Reversed and remanded.

22. State v. Tucker, 165 Ariz 340
    Dr. Harrison's testimony went beyond what our supreme court has said is permissible. Essentially, he was allowed to testify as to the believability of the victim in violation of Lindsey and Moran. When Dr. Harrison related each of his credibility factors to the specific facts of this case, he was really testifying that the victim was truthful and not lying. His testimony was "nothing more than advice to [the] jurors on how to decide the case." Moran, 151 Ariz. at 383, 728 P.2d at 253. After reviewing the evidence, we cannot say that the errors which occurred in the trial were harmless. It was the victim's word against the defendant's. The physical evidence was inconclusive. We cannot say that, beyond a reasonable doubt, the errors did not affect the verdict. [***31] See Lindsey, 149 Ariz. at 477, 720 P.2d at 78; State v. Allen, 157 Ariz. 165, 755 P.2d 1153 (1988). For the reasons stated herein, the convictions are reversed and the case is remanded for new trial.

23. State v. Uriarte, 1 CA-CR 97-0351, COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT B, 194 Ariz. 275; 981 P.2d 575; 1998 Ariz. App. LEXIS 149; 276 Ariz. Adv Rep. 20, August 27, 1998, Filed , Petition for Review Denied on March 23, 1999 by Arizona Supreme Court CR-98-0454-PR. AFFIRMED IN PART; REVERSED AND REMANDED IN
    
    Victim of child molestation had a right to her mother's presence at trial even though the mother was to testify and the trial court had ordered that all prospective witnesses be excluded.

24. State v. Williams, No. 2984, Supreme Court of Arizona, 111 Ariz. 511; 533 P.2d 1146; 1975 Ariz. LEXIS 271, April 10, 1975. Reversed.
    
    Testimony concerning defendant's alleged rape of his sister was inadmissible for impeachment purposes during defendant's trial because the evidence was collateral and irrelevant to the charged offense.

25. Trammel v. US, 445 US 40, 63 L.Ed.2d 186, 100 S.Ct. 906 (1980)
    A spouse can testify against the other party if the marriage is irretrievably broken.

26. US v. Acker, 52 F.3d 509 (4th Cir. 1995)
    Adverse spousal privilege is vested in witnesses spouse, who may neither be compelled to testify, nor foreclosed from testifying.

27. US v. Alonso, 48 F.3d 1536 (9th Cir. 1995)
    Expert witness may not state his opinion about defendant's guilt.

28. US v. Butler, 56 F.3d 941 (8th Cir. 1995)
    Although leading questions are generally prohibited during direct examination except as necessary to develop witness's testimony, exception to this rule exists when witness is child.

29. US v. Cooks, 52 F.3d 101 (5th Cir. 1995)
    Giglia v. US, 405 US 150, 31 L.Ed.2d 104, 92 S.Ct. 763 (1972)
    Napue v. Illinois, 360 US 264, 2 LEM 1217, 79 S.Ct. 1173 (1959)
    1) Where the government fails to disclose evidence of any understanding or agreement as to future prosecution of a key government witness, due process may require reversal of the conviction ... also ... the government has a duty to disclose such understandings for they directly affect the credibility of the witness. This duty of disclosure is even more important where the witness provides the key testimony against the accused.
    
    2) Importance of and need to safeguard right to cross examination is enhanced when witness is crucial to prosecution.

30. US v. DeSalvo, 26 F.3d 1216 (2nd Cir. 1994)
    Witness is entitled to claim Fifth Amendment privilege against self incrimination if testimony might reveal perjury in a prior proceeding.

31. US v. Fierro, 38 F.3d 761 (5th Cir. 1994)
    Prosecution may not comment directly or indirectly on defendant's failure to testify.

32. US v. Foster, 986 F.2d 541 (D.C. Cir. 1993)
    In criminal trial, informer's privilege must give way when information sought is relevant and helpful to defense of accused.

33. US v. Gecas, 50 F.3d 1549 (11th Cir. 1995)
    1) Fifth Amendment privilege against self incrimination supports two goals: (1) constraining government from overzealous prosecution of individuals and (2) securing individual liberties.
    
    2) Fifth Amendment privilege against self incrimination is personal right; it is matter of individual dignity.

34. US v. Jones, 766 F.2d 412 (9th Cir. 1985)
    Davis v. Alaska, 415 US 308. 39 LEM 347, 94 S.Ct. 1105 (1974)
    Pointer v. Texas, 380 US 400, 13 LEM 923, 85 S.Ct. 1065 (1965)
    Violation of the confrontation clause require reversal unless they are harmless beyond a reasonable doubt.

35. US v. Kaba, 999 F.2d 47 (2nd Cir. 1993)
    US v. Kelly, 953 F.2d 562 (9th Cir. 1992)
    1) "Voluntary statement" is one that is the product of rational intellect and free will.
    
    2) Voluntariness of confession must be established by preponderance of the evidence.
    
    3) Post - arrest statement may not be admitted if because of mental illness, drugs, or intoxication, statement was not product of rational intellect and free will.
    
    4) Coerced or otherwise involuntary statement may never be used for any purpose.

36. US v. Kelly, 35 F.3d 929 (4th Cir. 1994)
    1) Due process requires government to disclose material evidence affecting credibility of government witnesses.
    
    2) Conviction must be reversed if there is any reasonable likelihood that false testimony could have affected judgment of jury, even if testimony relates only to credibility of government witness and other evidence also has called into question credibility of witness.

37. US v. Kilgroe, 959 F.2d 802 (9th Cir. 1992)
    Witness who has been subpoenaed remains free to refuse to answer questions that would incriminate him.

38. US v. Kunzman, 54 F.3d 1522 (10th Cir. 1995)
    Experience alone can qualify witness to give expert testimony.

39. US v. Kreiser, 15 F.3d 635 (7th Cir. 1994)
    Lee v. Illinois, 476 US 530, 90 L.Ed.2d 514, 106 S.Ct. 2056 (1986)
    Bruton v. US, 391 US 123, 20 L.Ed.2d 476, 88 S.Ct. 1620 (1968)
    When two defendants are tried jointly, pre-trial confession of one cannot be admitted against another unless confessing defendant takes stand.

40. US v. Nanni, 59 F.3d 1425 (2nd Cir. 1995)
    State statute granting use immunity protects witness from use of his testimony by federal, as well as state authorities.

41. US v. Necoechea, 986 F.2d 1273 (9th Cir. 1993)
    US v. Agurs, 427 US 97, 49 L.Ed.2d 342, 96 S.Ct. 2392 (1976)
    White v. Ragen, 324 US 760, 89 L.Ed 1348, 65 S.Ct. 978 (1953)
    When the prosecution is or should be aware that it is presenting perjured testimony, a strict standard of materiality will be applied, and/or conviction will be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. Conviction obtained by knowing use of perjured testimony must be set aside if there is any reasonable likelihood that the false testimony could have affected the outcome of the trial.

42. US v. Newton, 44 F.3d 913 (11th Cir. 1995)
    It is improper for prosecution to place prestige of the government behind a witness by making explicit personal assurances of witness' veracity.

43. US v. Porter, 986 F.2d 1014 (6th Cir. 1993)
    " Adverse spousal testimony privilege" protects one spouse from being compelled to testify against the other.

44. US v. Quintanilla, 2 F.3d 1469 (7th Cir. 1993)
    Authority to immunize witness is explicitly executive branch responsibility; in enacting use immunity statute, Congress expressly left this decision exclusively to Justice Department.

45. US v. Sanchez - Galvez, 33 F.3d 829 (7th Cir. 1994)
    US v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993)
    Government may not imply that non - testifying defendant's silence is evidence of guilt.

46. US v. Taylor, 17 F.3d 333 (11th Cir. 1994)
    US v. Baptista - Rodriguez, 17 F.3d 1354 (11th Cir. 1994)
    Importance of full cross examination into possible bias increases where witness is the star government witness or participated in crimes for which the defendant is being prosecuted.

47. US v. Waterman, 732 F.2d 1527 (8th Cir. 1984)
    Government cannot, consistent with due process, offer favorable treatment to prosecution witness contingent upon success of prosecution. Since testimony was critical to support of defendants conviction it was vacated.

48. US v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993)
    US v. Dunnigan, 507 US 122 L.Ed.2d 445, 113 S.Ct. 1111 (1993)
    A sentencing increase based on false testimony does not unconstitutionally burden a defendant's right to testify. "A Defendant's right to testify does not include a right to commit perjury" 113 S.Ct. at 1117.

49. US v. Young, 952 F.2d 1252 (10th Cir. 1991)
    US v. Perkins, 926 F.2d 1271 (1st Cir. 1991)
    1) Defendants are entitled to adequate leeway to impeach witness' credibility and motivation during criminal trial.
    
    2) Confrontation clause guarantees right to effective cross examination when attempting to show bias.

50. Webb v. Lewis, 1994 US App LEXIS 34997
    As the use of the videotape alone was such a substantial violation of Webb's Confrontation Clause rights, we need not on this appeal evaluate the further violations alleged by the admission of hearsay reported by Connie Martin and by Leslie Morton. If, however, these statements are to be used again they must be reevaluated in the light of this opinion and of Idaho v. Wright. Their earlier admission under a statute now found by Arizona to be unconstitutional is now irrelevant. Accordingly, the judgment of the district court is reversed. The district court is ordered to issue the writ sixty days from the issuance of the mandate, unless within that time the state of Arizona indicates to the district court its intention to retry Webb. In that event, the district court shall order Webb released to the proper authorities [**21] for the purposes of retrial.

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