United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING IN PART
GOVERNMENT'S FIRST OMNIBUS MOTION IN LIMINE AND MOTION
FOR LAFLER/FRYE HEARING
MATTER comes before the Court upon the Government's First
Omnibus Motion in Limine, filed May 14,
2018 (Doc. 60), and the Government's
Motion for Lafler/Frye Hearing, filed May 14, 2018
(Doc. 57). Having reviewed the parties'
briefs and applicable law, the Court finds that the
Government's motions are well-taken and, therefore, are
GRANTED IN PART. The motions are otherwise
set for hearing on July 23, 2018.
is charged with killing John Doe by striking him with an axe,
with malice aforethought, in violation of 18 U.S.C.
§§ 1153 and 1111. During an allegedly voluntary
confession, Defendant admitted to getting into an altercation
with John Doe. He alleges John Doe swung a piece of firewood
at him, scraping his face, and that he picked up an axe and
struck John Doe in the neck with it. Defendant filed a Motion
to Suppress (Doc. 54) this confession which
is currently set for hearing on July 23, 2018.
Defendant's Exculpatory Hearsay Statements Should be
Government seeks to prohibit Defendant from introducing his
prior exculpatory statements, because they are hearsay. The
Government argues that these statements cannot be admitted as
exceptions to hearsay under Fed.R.Evid. 801(d)(2), because
the statements at issue here are self-serving or exculpatory
Court agrees. The hearsay rule generally excludes
self-serving or exculpatory statements made and offered by a
party, and Defendant has provided no exception. See
United States v. Larsen, 175 Fed.Appx. 236, 241 (10th
Cir. 2006) (“Rule 801(d)(2), which excludes from the
definition of hearsay admissions by a party-opponent, does
not apply because that rule does not permit self-serving,
exculpatory statements made by a party and offered by that
same party.”); see also United States v.
Cunningham, 194 F.3d 1186, 1199 (11th Cir. 1999)
(“[A] defendant cannot attempt to introduce an
exculpatory statement made at the time of his arrest without
subjecting himself to cross-examination”), and
United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982)
(“When the defendant seeks to introduce his own prior
statement for the truth of the matter asserted, it is
hearsay, and it is not admissible.”).
argues that his prior exculpatory statements should be
admitted without him taking the stand, because his limited
intellectual capacity makes him vulnerable to suggestion on
cross-examination. Defendant has not provided, and the Court
has not found, any law or case that indicates that the
hearsay rules are abrogated because of a Defendant's
limited intellectual capacity. Therefore, the Court concludes
that the Government's request to exclude exculpatory
hearsay statements is well-taken. Defendant's prior
exculpatory statements are therefore
Defendant's Reference to Self-Defense.
Government seeks to exclude any evidence or discussion of
self-defense, unless Defendant makes a threshold showing of
the elements of self-defense. Generally, a defendant must
make a threshold showing on the elements of an affirmative
defense prior to the presentation of the evidence to the
jury. United States v. Bailey, 444 U.S. 394, 412-15,
100 S.Ct. 624, 62 L.Ed.2d 575 (1980). Other circuits have
applied this requirement to an assertion of self-defense.
See United States v. Haynes, 143 F.3d 1089, 1090
(7th Cir. 1998) (“A judge may, and generally should,
block the introduction of evidence supporting a proposed
defense unless all of its elements can be
established.”), citing Bailey; cf. Lakin
v. Stine, 80 Fed.Appx. 368, 374 (6th Cir. 2003)
(“No due process violation occurs from the failure to
give an instruction on a defense where there was insufficient
evidence as a matter of law to support such a
charge.”). It appears that Defendant concedes that this
requirement applies here. See Doc. 73, p.
Defendant may not present an affirmative defense that lacks
any evidentiary support. See United States v.
Fraser, 647 F.3d 1242, 1245 (10th Cir. 2011) (“No
one, after all, has a right under the Constitution or at
common law to present evidence that is insufficient as a
matter of law to establish any recognized defenses.”);
see also United States v. Barrett, 797 F.3d 1207,
1218 (10th Cir. 2015) (self-defense instruction warranted if,
based on evidence presented, jury could have had a reasonable
doubt that defendant believed he was in imminent danger of
death or great bodily harm).
argues that John Doe attacked him, and that he therefore had
a reasonable belief that the use of force was necessary to
defend himself against the immediate use of unlawful force.
However, Defendant has not indicated what evidence will be
profferred. The Court concludes that a proffer of evidence to
support the affirmative defense of self-defense is necessary.
Therefore, Defendant is ordered to proffer evidence, though
representations of counsel, which would support a theory of
self-defense at the July 23, 2018
References to Potential Punishment.
Government argues that any reference to potential punishment
should be excluded at trial. See Shannon v. United
States, 512 U.S. 573, 579 (1994). Defendant does not