838 F.3d 845
7th Cir.2016Background
- On Sept. 18, 1998, Beth Kubsch, Rick Milewski, and Aaron Milewski were murdered in Mishawaka, IN; Wayne Kubsch was convicted (death sentence) based on circumstantial evidence and inconsistencies in his account.
- Defense theory: Kubsch was in Michigan picking up his son and a friend (Brad Hardy) was the killer; no direct eyewitness or forensic evidence linked Kubsch to the killings.
- Four days after the murders a nine‑year‑old neighbor, Amanda ("Mandy") Buck, gave a videotaped police interview saying she saw Aaron (and Rick) at their house after 3:30–3:45 p.m.—a timeframe that undercuts the State’s window for Kubsch’s opportunity.
- At trial Mandy testified she did not remember the interview; the trial court and Indiana Supreme Court excluded the videotaped statement as a recorded recollection under Ind. R. Evid. 803(5) because Mandy could not vouch for its accuracy; impeachment use was also limited.
- Habeas proceedings: district court and a Seventh Circuit panel denied relief under AEDPA; en banc Seventh Circuit reversed, holding the exclusion violated due process under Chambers v. Mississippi and ordering relief (new trial unless state acts).
Issues
| Issue | Plaintiff's Argument (Kubsch) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether exclusion of Mandy Buck’s videotaped interview violated Due Process under Chambers v. Mississippi | The videotape was critical, reliable, and central to Kubsch’s only defense (actual innocence); excluding it deprived him of a meaningful opportunity to present a defense | Indiana rule (803(5)) properly required the witness to vouch for accuracy; the tape was unsworn, not subject to cross‑examination on the statements, and could be mistaken | Majority: Exclusion was contrary to/an unreasonable application of Chambers; due process required admission; reversed and remanded for writ/new trial unless state retries within 120 days |
| Whether the videotape qualified as a recorded recollection under Indiana Rule of Evidence 803(5) | The transcript/video was made when the memory was fresh and reflected Mandy’s knowledge; only missing was Mandy’s present ability to vouch—should not bar admission | Indiana Supreme Court: final element (witness vouching for accuracy) not met; admission would violate state hearsay rule | Majority: State court’s application of Rule 803(5) was inconsistent with Chambers and Supreme Court precedent; exclusion unreasonable; state law ruling defers to state courts but cannot trump due process in these circumstances |
| Whether exclusion was harmless error | Impeachment exclusion was harmless per Indiana Supreme Court | State: other evidence (e.g., circumstantial evidence, inconsistencies in Kubsch’s statements, physical items) made any error harmless | Majority: Exclusion was not harmless because the videotape was the strongest evidence for the only defense (actual innocence); jurors were denied evaluation of critical evidence |
Key Cases Cited
- Chambers v. Mississippi, 410 U.S. 284 (1973) (due process may require admission of hearsay that is reliable and critical to defense)
- Green v. Georgia, 442 U.S. 95 (1979) (admission/exclusion of hearsay against co‑defendant may violate due process where State treated statement as reliable for its own purposes)
- Crane v. Kentucky, 476 U.S. 683 (1986) (exclusion of competent, reliable defense evidence about confession circumstances can violate right to present a defense)
- Rock v. Arkansas, 483 U.S. 44 (1987) (arbitrary evidentiary rules excluding testimony can abridge the right to present a complete defense)
- Holmes v. South Carolina, 547 U.S. 319 (2006) (state rule arbitrarily excluding third‑party guilt evidence violated defendant’s right to present a defense)
- Montana v. Egelhoff, 518 U.S. 37 (1996) (Chambers is case‑specific; states retain broad latitude to adopt rules excluding evidence)