In U.S. v. Henderson, No. 04-11545 (Barkett, Farris, b.d.) (Hill dissenting), the Court affirmed a conviction of a police officer for pistol whipping a suspect, rejecting a number of challenges to evidentiary rulings.
The Court rejected the argument that the trial court should not have excluded proffered evidence concerning a witness’ bias. The Court noted that the evidence might not have been properly proffered, but ruled in any event that that the danger of unfair prejudice outweighed the evidence’s probative value.
The Court also rejected the argument that the trial court should have excluded a witness’ testimony about his belief in the credibility of the victim’s account of events. The Court recognized that ordinarily such evidence is inadmissible. However, in this case the government was attempting to respond to questions on cross-examination that attempted to discredit the witness for changing his mind about which person he believed. The evidence was admitted not to bolster the credibility of another witness, but to explain why this witness changed his mind as to who he believed.
The Court agreed with the defendant that the victim’s treating physician should not have been permitted to testify regarding his opinion regarding the cause of the jaw injury. Such questions are in the nature of "hypotheticals" reserved for expert witnesses. However, the Court found the error to be harmless in light of the other evidence of guilt.
The Court upheld the exclusion of evidence of two polygraph exams of the defendant which supported his defense. The Court found the exclusion of this evidence proper under Daubert. The Court noted that the theories of polygraphy could not adequately be tested. Further, the error rate for polygraphs "is not much more reliable than random chance." The exclusion therefore was not an abuse of discretion.
The Court further rejected a challenge to the policy of the Middle District of Florida of excluding police officers from jury venires. The Court noted that enforcement officers compose less than 0.55% of eligible jurors, and noted the significant state interest in having enforcement officers at work, not sitting on juries.
Turning to Henderson’s sentence, the Court found Booker "plain error." The district judge imposed the lowest possible sentence and staetd that she thought the sentence was too high but was bound by the guidelines in any case. In these circumstances, the defendant has met his burden of proving prejudice. The Court remanded the case for resentencing.
