*2
area. She related that
the defendant
stopped
lighted
his car
aat
intersection
in a residential area and asked her for
Bates,
City,
ap-
Mo.,
H.W.
Kansas
directions to a restaurant. While she
pellant.
pointing
Street,
toward Main
got
said the defendant
out of the car
Kitchen,
Atty.,
William
Asst. U. S.
and forced her into the car on the driv-
Mo.,
City,
appellee.
Kansas
er’s side. On cross-examination
BRIGHT,
Before LAY and
Circuit
gotten
nied that she had
into the car
Judge.
EISELE,*
Judges, and
District
voluntarily.
originally
She
said that the
elapsed
time interval which
Judge.
when
LAY, Circuit
he first asked her
directions when he
guilty
Defendant was found
of kid-
forced her into the car was three min-
napping under 18 U.S.C.
1201. The
On
utes.
redirect
examination she
alleged kidnapping
victim of the
testi-
changed
six seconds. She admit-
16, 1972,
fied that on November
while
visiting
ted
walking
with the
dormitory
near
City, Missouri,
approximately
Kansas
family,
car about her
the fact
p. m.,
9:30
the defendant forced
father,
had lived with
an Air
Force
*
EISELE,
Judge,
G. THOMAS
District
East-
renew his motion
remand
before the sec
Arkansas,
ern
sitting
District
simply
prejudice
des-
ond trial. We
note
no
ignation.
government
allowing
can flow from
opportunity
to at least at
alleges
1. Defendant
additional
error
in the
tempt
lay
a foundation for the admissibil
district
court’s refusal
to allow him to sub
ity
polygraph
Although
of a
test at
voluntarily
polygraph
mit
to a
examination
past
this court
in the
held such tests in
expense.
at his own
Defendant’s
counsel
admissible, we note recent
court decisions
urges
opportunity
that he was denied the
have found under
certain
circumstances
lay
predicate
attempt
an
to convince
polygraph
examination
be admissible.
the district
art
status of the
See,
g.,
Ridling,
e.
States v.
United
350 F.
polygraph
and science of
examinations
Supp.
(E.D.Mich.1972)
;
progressed
point
results
Zeiger,
F.Supp.
(D.D.C.1972);
cf.
such examinations
should be admitted into
Wainwright,
should this. Time persons We conclude that those reputations. duced new daily conditions who have had contact with the The requirement complaining traditional witness, though even it “neighborhood” reputation appro- period for a months, short of two are priate time; competent to the conditions of the general to but it should imposing reputation not be taken as at the time.2 The fact that 63(28) Evidence, group Uniform Rules of Rule resided or in a with which he then community refers habitually Proposed to “the then associated.” Federal veracity. question her for a short This had known was not witnesses resting relevancy by itself render period of does not court’s dis- rejected testimony This fac- The inadmissible. cretion. evidence here their weight goes of the because ing trial court erred in hold- tor jury proper Cases what for the evaluate. constituted a and is incompetent totality finding witnesses the defense character foundation. challenging offered credibility of foundation here rested relate to lack periods other than short witness. for reasons acquaintance.3 deliberated over ten hours rendering guilty before verdict. The third reason the district Questions credibility peculiarly are testimony gave of the for exclusion province jury. within the of the This related to the three character being so, is critical that all mate- giv- concern its ing that the rial evidence to truth and verac- opinions personal as to the ity jury’s be admitted for the considera- complainant truth and tion. reflecting rather than reputation. The issue before us is whether the exclusion of such amount agree voir that much prejudicial ed to error. See Michelson examination, conducted outside the dire v. United improper jury, reflected Panger (1948); L.Ed. interrogation *5 Defense answer. Duluth, Ry., v. W. & P. F.2d 1112 490 straining lay counsel, undoubtedly (8th 1974). Cir. We find did. On it beyond foundation, his intended impossible us, the record before it is proof. Specific may incidents be possibil that there nois “reasonable inquired on cross-examination of a ity” the exclusion of the testifying character might not the con have contributed to Proposed Rules truthfulness. See States, viction. Kotteakos v. United See 608(b), Evidence, Rule 51 F.R.D. 750, 765, 1239, 90 L. 328 U.S. 66 S.Ct. (1971). Nevertheless, 389 we think (1946); Fahy Connecticut, v. 1557 Ed. manifest that made clear 85, 86-87, L. 84 11 S.Ct. calling purpose the witnesses and (1963). record, the On the Ed.2d 171 that a sufficient foundation laid for guilt kidnapping evidence of complainant’s them to reputation as to the “overwhelming” render as to was not so veracity in for truth and testimony. the exclusion harmless community in which she lived. Once Harrington California, 395 U.S. See demonstrated, foundation was the court L.Ed.2d 284 254, 89 23 S.Ct. should have made clear to both counsel and the witnesses the limited extent to questions in Kotteakos v. United which the As noted and answers would 750, 66 1239 328 be restricted on U.S. direct examination. (1946), criminal this is the fact that gener- We the wide latitude significant: case is ally accorded deter- mining escape admissibility appellate court [cannot] of evidence. [T]he taking altogether However, out- forth, account as we have set these qualified In criminal causes witnesses were ... as to come. prosecutrix’ reputation is outcome conviction. This Evidence, 803(2.1), Rules of Rule aeter witness had known the defendant one 51 F.R.D. (1971), reputa- month, 422 admits but had not lived in either of the cit evidence of “among recently tion re associates or the commu- ies which the defendant nity.” inquiry directed. sided and to Straughan, F. also See (8th 1972) example, ; 3. For 2d Cir. United States United States v. Trollin ger, Salazar, (9th 1969), 415 F.2d Cir. the char guilt .different, be, or guilt law, to her established three roommates as fact. It is laymen. judgment of And the harmless. they right is, for a reverse remand new question not were regardless judgment, er- upon or verdict. It its effect ror Judge BRIGHT, (concurring). Circuit effect error had or is rather what reasonably may taken to have had Lay’s Judge completely I concur upon jury’s decision. my add individual views. solely comments
Kotteakos, supra emphasize 66 S.Ct. the excluded would have cast doubt serious prosecuting witness’ version Recently affirmed its this court ad- might events well have led to to the Kotteakos herence standard acquittal. fendant’s termining prejudicial error: case, Under the indictment “If, done, when all is said and obligation prove Government’s was to conviction error did is sure that knowingly transport- influence the had but or person ed in interstate commerce slight effect, the verdict “unlawfully seized, confined, had been ** judgment should stand *. But abducted, inveigled, kidnapped, decoyed, say, assurance, one cannot with fair away or carried and held for ransom pondering happened after all reward or otherwise.” U.S.C. stripping without the erroneous action case, On the record in this the victim’s judgment whole, from the testimony relating to forcible abduction substantially swayed was not entirely uncorroborated somewhat error, impossible it is to conclude that suspect.1 doubt, Without its weaknesses rights substantial were not affected. highlighted would have been jury by for the inquiry merely cannot be whether proffered evidence, had it enough support there was sult, apart the re- been admitted. *6 phase by the from affected prosecution’s case, At the close of the rather, so, the error. even It produced the defense three witnesses whether the error itself had substan- who had been the roommates of the vic so, If tial influence. one is left tim question at the in time The trial grave doubt, in the conviction cannot extremely court was dubious the about stand.” admissibility testimony and, of their Stabler, therefore, upon hearing insisted a voir 1974), quoting Kotteakos v. dire examination of the witnesses out 66 S. side the the of as an offer Ct. proof allowing of testify. before them to Applying this standard testimony to the In facts addition to about vic the and present of case, propensity easily circumstances the tim’s to bruise —which we eventually cannot that the of exclusion the was admitted—and about the According testimony, during trip 1. to her own the neck vic the entire which started try City, tim Missouri, did not to exit the car Kansas terminated occurred, although Village, until after the sexual act Prairie Kansas. repeatedly the car slowed for automatic signals. engaged traffic admits that of Because the trial court’s insistence appears evening what to have been a casual that con the evidence be concluded that parents, —although begin versation with the driver her the defense did not even school, topics. Although her and other after until 5 :00 P.M.—defense counsel agreed rely upon had told her roommates on several occasions would the testimo- easily, examining physi ny forego that she bruised the these witnesses and the despite testimony cian found her neck unmarked her of a fourth roommate would gripped by claim that the morning. defendant her the have been available next the tradicting reputation victim’s truth and veraci- statements collateral mat- ty by prosecuting has now been discussed at ters made the witness —which length Judge Lay’s opinion3 questions are difficult we are —the upon prepared appel- answer, to the called since following: lant does not raise error. But them as very testimony of this en- existence 1) That the victim claimed on an ear- courages closely look us to at the City lier occasion Kansas that she had relating testimony exclusion by young man, and then on reputation the victim’s for truth and ve- questioning by further roommate racity. statement; later retracted reviewing case, I the record 2) That, occasions, on a number feeling left am distinct with gone the victim had out beer-bars judge improperly trial restricted the roommates, with later present opportunity fendant’s an ade- “picked up” men various who were quate charge kidnap- defense to strangers group; to the ping. the exclusion of 3) stayed That the victim out late proffered night, stipulated by after hours victim’s truth and veraci- regulations, some occa- ty stemmed con- court’s night; sions, all prosecuting cern shield the day following 4) That, integ- the al- upon on the from a collateral assault leged displayed kidnap-rape, rity. the victim too Yet must being signs upset and indeed no considered. anoth- home out to a bar “went prosecutor’s proof night.4 guy” that er kidnapped the victim rested fendant had unsupported testimony, upon her proffered testimony on Whether re- was entitled to contest points was admissible these four latter liability. deprived the trial court Since as relevant issue consent opportunity, charge him of reversal kidnapping or defense clearly merited. impeachment eon- extrinsic A Yes. Q Are Q And what was that A Q Are fered was that of Typical more. her. During would body vember Quay body you acquainted you acquainted prior could believe feel with whom she was They part: didn’t lived the same thereto, time, veracity, didn’t [*] one even listen with [*] I would reputation? former even want [*] with her with the anything way her, then? shortly several weeks? roommate who and with *7 living to her Jalaine do, both to talk to thereafter, dorms, every- prof- said. Mo- No- no- with the victim went apartment. contrasted some alleged rape victim: “any A Not Another witness But erybody At first back that one another girl boys thing lying later prosecutor who is else. connection, good. to all of us. She guy another victim’s had us all tried lying run raped just an earlier explained under appeared upstairs. about us one thing, sweet calm break near-hysterics when next pretty cross-examination doesn’t reaction to the innocent and she came incident when into the and tell some regarding would tell night.” snowballed observed: go home girls’ type. ev- us