Criminal Justice Section  

    Criminal Justice Magazine

Criminal Justice Magazine
Spring 2000
Vol. 15, Issue 1

Trial Tactics

Steven A. Saltzburg

Importance of Corroboration: Self-Defense as an Example

My last column explained why what a person knows or is told may be admissible to prove the reasonableness of that person's actions in support of a claim of self-defense. Often a defendant testifies that he or she knew that the alleged victim did a certain act, or that he or she was told that the alleged victim did a certain act. Whether the defendant's knowledge is complete or accurate, or whether what the defendant was told was honest or accurate does not really matter. What matters is whether the defendant genuinely believed certain things to be true, and whether the actions taken by the defendant were reasonable in light of what he or she believed to be true.

In some cases, however, it may be important to examine whether the things the defendant claimed to know or have been told actually happened. One good example is United States v. James, 169 F.3d 1210 (9th Cir. 1999), reversing a panel decision that affirmed a defendant's conviction of aiding and abetting manslaughter within Indian territory.

The manslaughter charge

The defendant in James was Ernestine Audry James. The victim was her boyfriend, David Ogden. The two met at a "pow-wow" in Seattle. After they met, James became the victim of, and a witness to, a number of violent acts involving Ogden. As the en banc opinion states, "[h]e was nice sober, nasty drunk." (169 F.3d at 1211.) In most instances Ogden was the aggressor, but in several cases James's daughter, Jaylene, was just as aggressive. These acts included the following:

  • On one occasion when James refused to have sexual intercourse with Ogden, he threw her on the bed and forcibly raped her.
  • On another occasion when James refused sexual intercourse, Ogden entered a room where James and her daughter were and started yelling and calling James names. This resulted in the daughter holding Ogden at knife point until James ordered both her and Ogden to stop.
  • On a third occasion when James refused sexual intercourse, a drunken Ogden refused to take "no" for an answer until James broke a glass and threatened him with it.
  • Ogden once struck James with a backhanded slap that resulted in a swollen lip.
  • On an occasion when a friend visited their apartment, Ogden accused the friend of "looking at" James, and beat the friend up when he denied it. James tried to call 911, but Ogden ripped the phone out of the wall. James took her daughter with her to another room to try to use another phone, but Ogden broke the door down on top of the daughter. As James put the phone down, the daughter started hitting and kicking Ogden, breaking some of his ribs, until James told Ogden and her daughter to stop.
  • Ogden often yelled and picked fights with strangers when shopping with James.
  • Ogden had a practice of taking his knife out of his sock, opening and closing it, and switching it from hand to hand as though he were in a fight.
  • James's 14-year-old daughter had beaten Ogden on three occasions, and he never fought back against her.

Ogden apparently was not only violent when drunk, but was also a racist. Ogden, James, and the daughter were Native Americans, but the daughter had a boyfriend who was part African American and part Asian. Ogden hated African Americans. On the day that Ogden was killed, he, James, the daughter, and the boyfriend were all together at a party. Ogden grabbed a hammer from among his tools and said that he ought to use it to hit the boyfriend. James told Ogden to stop. Ogden later grabbed the boyfriend's shirt and started to pull him around by it until the daughter told him to stop.

James decided to leave the party with her daughter, but her van got stuck. While she and the daughter were sitting in the van, the daughter heard her boyfriend say "oh man," and fall down. Ogden had struck the boyfriend in the face so hard- possibly with something in his hand-that he knocked the boyfriend unconscious. Other men on the scene carried the boyfriend into the house where the party was held and provided first aid. Shortly thereafter James took out a gun, loaded it, and gave it to her daughter, who shot and killed Ogden. The daughter testified as a witness for the government as follows:

Q. Now, when you heard that statement from your mother that Michas [the boyfriend] had just gotten hit by David [Ogden], how did you feel?


Q.What did you do?

A.I got out of the van and started chasing him.

Q.Weren't you afraid that he would harm you?

A.No, I wasn't afraid of him.

Q.You were not afraid of him?


* * *

Q.And at the end of the chase, what did you do?

A.I went over to my mom's side of the van.

Q.Was this on the driver's side?


Q.What happened next?

A.My mom had a gun out. She was loading it.

* * *

Q.When you got up to the van, what happened next?

A.She gave me the gun.

Q.Did you ask her for the gun?


Q.Did she say anything to you when she handed you the gun?

A.Yes. She said it was on safety.

Q.What else did she say?

A.And this is how you click it off.

Q.And she showed you that?


Q.Where was David Ogden at this time?

A.He was still on the road.

(169 F.3d at 1212.)

The daughter shot Ogden at point-blank range and killed him. Although the daughter had testified on direct examination that Ogden was scared of her, she admitted on cross-examination that Ogden might not have been fearful of her because he was not afraid of anyone when he was drunk, and Ogden might have beaten her up and hurt her.

James testified in her own behalf. She explained in her direct examination why she gave her daughter the gun:

A.Jaylene [the daughter] came back to the van and she was breathing heavy, like she was running. She was very upset and she just started begging me for the gun. She said, mom, please give me the gun, give me the gun. She said it several times.

Q.And what did you do when she begged you for the gun?

A.I just grabbed for my purse and got the gun and handed it to her.

* * *

Q.At that moment when Jaylene asked you for the gun and you reached in and gave it to her, why did you give it to her?

A.I gave it to her to protect herself and the family members.

Q.What did you expect her to do with the gun when you gave it to her?

A.I just expected her to fend David off. I didn't want her to shoot him. It was just to scare him away from the property.

Q.Why did you want her to scare him away from the property?

A.Because I knew how violent he was and I knew that he wouldn't stop at just one punch and he wanted to continue being violent.

(169 F.3d at 1212-13.)

The disputed evidence

James testified that Ogden had boasted to her about several violent acts. She testified that:

  • Ogden claimed that he once killed a man and got away with it.
  • Ogden told her he sold a man a fake watch and, when the man complained, Ogden stabbed him in the neck with a ballpoint pen and thought it was funny to see the man with the pen dangling out of his neck.
  • Ogden bragged that he had ripped the side mirror off a car and beaten a man unconscious with it.
  • Ogden claimed that he had robbed an old man by holding him down, pointing a knife in his face, and threatening to cut his eyes out.

Ruling on pretrial motions in limine, the trial judge, William Dwyer of Seattle, held that James and her daughter could testify about prior violent misconduct they had known about when James handed the daughter the gun, but that they could not introduce extrinsic evidence about events of which they had no personal knowledge. As a result of the ruling, defense counsel was not permitted to offer the following four exhibits:

1. Court documents setting forth detailed findings concerning Ogden's robbery of a 58-year-old man while holding a knife at his throat and eyes and threatening to blind him.

2. A presentence report with 38 "priors," some with dispositions and others with the disposition unknown.

3. A Seattle police report that a shirtless Ogden was randomly striking people in a crowd near a market in Seattle.

4. A Seattle police report that near the same market Ogden and another man grabbed a stranger, threw him down, and kicked him in the face.

Judge Dwyer reasoned that he admitted all information that the defendant possessed at the time she gave the gun to her daughter, that information was relevant to her state of mind, and extrinsic evidence unknown to the defendant could not have affected her. Judge Dwyer noted that he would also have excluded any extrinsic evidence that suggested that Ogden had exaggerated his violent history, because those records would have been equally unknown to the defendant and could not have affected her state of mind.

Appellate review

The court of appeals reasoned that the standard of review depended on the type of ruling that the trial judge actually made:

If the district court's ruling is understood as a determination that any record not known to the defendant is inadmissible as part of a defense based on self-defense, its ruling was one of law, and our review is de novo. If the district court is understood to have implicitly weighed the probative force of the evidence against its prejudicial impact on the jury by making the victim seem odious, then our review is for an abuse of discretion.

(169 F.3d at 1214.)

Deciding that either characterization of the trial judge's ruling could be defended, the appellate court opted to review the decision to exclude the documents under both the de novo and the abuse of discretion standards. A 10 to 1 majority of the en banc court found that the ruling was erroneous and prejudicial using both standards of review.

The majority's reasoning

Important to the majority was the fact that the jury had sent a number of questions to the trial judge during its deliberations. One note from the jury was as follows:

Dear Judge,

The jury would like to know if it is a "fact" that:

1) Ogden did stab an "old man" and was sentenced to 20 yrs & on parole

2) did he really stab someone with a pen

3) did he really murder a man and hide in an apt?

Are there police or court documents to prove this or is it "brag"?


Robert Reedy


This note supported the majority's inclination to believe that the stories that the defendant related as to Ogden's previous acts of violence "were of such a remarkable character of atrocity that one might doubt that he had told them of himself or doubt that they had really occurred." Doubts about either of these things might have caused the jury to reject the defense that the defendant believed that she and her daughter were in danger of grievous bodily harm or death at Ogden's hands.

For the majority, the excluded documents were critical evidence and had to be admitted for the defendant to have received a fair trial:

It was absolutely necessary to her defense for the jury to believe (1) that she wasn't making up the stories and (2) that, when she heard them, she heard them from the man who had actually done these terrible things and who was not just spinning tales. The records proved that he had done them so that the stories of his wild exploits would have had the ring of truth to her, and the records proved that what Ernestine James testified to had actually taken place. The records corroborated her testimony, and the records corroborated her reason to fear.

The law of this circuit is crystal clear that corroboration of a key prosecution witness by the introduction of criminal records is permissible, even at the risk of some prejudice to the defendant on trial. United States v. Pitts, 6 F.3d 1366, 1370-71 (9th Cir. 1993). We should not have one rule for the prosecution and another rule for the defense.

(169 F.3d at 1214.)

The majority held that, as a matter of law, the documents were admissible to corroborate the defense of self-defense and that it was an abuse of discretion to exclude them, because Ogden's vicious behavior was already before the jury and "[t]he records would not have painted him darker than he already must have appeared." (169 F.3d at 1215.) In the end, for the majority, "[t]he records went to James's credibility not Ogden's character." (Id.)

The dissent

Judge Kleinfeld wrote a lone dissent, arguing that Judge Dwyer had discretion to admit or to exclude the records and did not abuse that discretion. Judge Kleinfeld suggested that there was good reason to exclude the records:

The documents were somewhat remote corroboration, not direct evidence of anything relevant. They showed nothing directly about the mother's state of mind, because she had never seen them. And the risk of unfair prejudice to the prosecution was considerable. The victim was a bad man. Some people would say, in private and out of court, that "he deserved it," or "he needed killing." But no one says such things in a courtroom, because the law does not permit murder, even of very bad people.

The jury's questions "did he really stab someone with a pen," "Are there police or court documents to prove this or is it 'brag?'" may mean that the jury was asking the wrong question, whether the victim deserved to be shot. The majority says that the evidence went to the mother's credibility, not the victim's character. But the jury's questions suggest that jurors were wondering whether the victim really did what he claimed, as opposed to whether Ms. James believed him. And the trial judge who, unlike us, was there, may have seen that coming. Plenty of evidence lends itself both to permissible and impermissible uses, and trial judges have to weigh the risks as the trial proceeds.

(169 F.3d at 1215-16.)

Judge Kleinfeld observed that the only case cited by the majority in support of the point that there should not be one rule for the prosecution and another for the defense was Pitts, and he noted that in that case the court said only that the trial judge did not abuse his discretion in admitting evidence, not that the judge had to admit the evidence. In fact, Pitts was another case that arose in Seattle, and the court held that the trial judge did not err in a prosecution for cocaine distribution by admitting evidence that the defendant possessed two sawed-off shotguns three months earlier. The shotgun evidence corroborated testimony by a key government witness that she had purchased the guns for the defendant and was a trusted intermediary of the defendant. The exact holding of the court was "the admission of the other crimes evidence was not an abuse of the trial court's broad discretion under Rule 403. United States v. Kinslow, 860 F.2d 963, 968 (9th Cir.1988) (district judge given wide latitude), cert. denied, 493 U.S. 829 (1989)." (6 F.3d at 1371-72.)

Five lessons

James is an important case because of its emphasis on the importance of permitting a party to offer evidence to corroborate witnesses. It also is an unusual case because, as the dissent noted, there was a reason for the trial judge to be concerned about the prejudicial effect of the excluded evidence. It is almost certainly true that reasonable appellate judges could disagree on the outcome, notwithstanding the lopsided vote of the en banc court. Despite the unusual nature of the case, it offers some lessons for future cases:

1. The reasoning of the majority is most powerful in cases in which the prosecution attacks the credibility of the defendant as a witness. Neither the majority nor the dissent in James points to any questions or argument by the prosecutor that suggested that the defendant exaggerated her testimony about Ogden's violence. If the prosecutor had done so, corroboration of the defendant would have been extremely important. James signifies that the credibility of the defendant is so important that, even though it is not directly attacked, corroborative offered to support it should not often be excluded.

2. The reasoning of the majority is also powerful in rare cases in which the jury indicates doubts about the defendant's credibility. The James majority obviously thought that the jury's inquiry of the trial judge indicated that it had doubts about what Ogden had told the defendant or whether the defendant took Ogden seriously. If the majority was correct, the records were important corroborative evidence. If, however, the dissent correctly suggested that the jury might simply have wanted to know whether Ogden deserved to die, the excluded evidence was not necessary to corroborate the defendant. It might have been important that Judge Dwyer did not suggest the concern raised in Judge Kleinfeld's dissent. There is no way to know whether, had he done so, the majority might have been more willing to defer to his ruling.

3. If a trial judge excludes evidence during the trial and the jury specifically asks about the excluded evidence during deliberations, it is not always clear what the judge should do. In the typical case, the trial judge will not know whether the jury might have doubts about the defendant's credibility with respect to certain matters (if credibility has not been attacked by the prosecution). If the jury sends no signal during delibrations, the trial judge will have no reason to be especially concerned that the jury might be focused on a credibility issue that could be greatly affected by the judge's exclusion of evidence. James is the atypical case because the judge did know what the jury wanted to know and was on notice that the jury might well have wanted to know whether to believe the defendant's testimony about the victim's violent acts. The question arises as to what Judge Dwyer should have done during deliberations after he received the written inquiry from the jury. He could have granted a mistrial, reopened the evidence, tried to obtain a stipulation from the parties concerning the records, or simply done nothing. After James, doing nothing is not an option, at least not in the Ninth Circuit. A mistrial might well be a waste of resources. It appears relatively simple to have opened the evidence and to have admitted the four documents or to have obtained a stipulation about the documents. But that is because four documents would have been relatively easy to handle and to have posed no logistical problem for the court. If, however, the defense had tried to call witnesses rather than to offer documents and the witnesses were excluded, they may have been unavailable during deliberations. A stipulation would still have been possible, but without one there may be no remedy short of a mistrial available to the trial judge.

4. By admitting the corroborative evidence and giving a tailored limiting instruction, the trial judge may ensure a fair trial and avoid error. All judges on the James en banc court agreed that the trial judge could have admitted the evidence. The dissenting judge offered one reason for excluding the evidence. But the dissent's concern could have been addressed had Judge Dwyer admitted the records and told the jury that the issue it was to decide was whether the defendant believed that Ogden posed a danger of grievous bodily harm or death to her and/or her daughter, that the jury could consider all that the defendant knew about Ogden at the time she acted in assessing the defendant's belief, and that the jury could consider the records in deciding whether Ogden told the defendant about his past acts and likely did so convincingly. Judge Dwyer might have added that, no matter what Ogden claimed to have done or did, the issue for the jury was whether at the time the defendant loaded a gun and gave it her daughter-at that time and no other time-she believed that this was necessary to avoid grievous bodily harm or death. There is no way to completely eliminate all concern that the jury may focus improperly on whether a victim like Ogden "needed killing," but this kind of instruction would go a long way toward focusing the jury on the events surrounding the killing.

5. Some matters are not worth fighting about. The prosecution's theory at James's trial appears to have been that her daughter was chasing Ogden, Ogden had never assaulted the daughter, and there was no immediate danger when the defendant loaded the gun. This theory did not require the prosecution to deny that Ogden was a mean, assaultive man who had done bad things and bragged about them. Had the prosecutor said to Judge Dwyer, "the prosecution does not contest that Ogden said what the defendant claims or that she believed him," there would have been no need for the records. It appears that the prosecutor may, in fact, not have had any intent to dispute the defendant's credibility with respect to Ogden's violent behavior or his boasts, because the prosecutor appears to have focused on the fact that the daughter seemed to have an ability to control Ogden and that the defendant had known that. If this is correct, then the fight about the records was about an issue that was not really disputed and could have been avoided. n

Stephen A. Saltzburg is the Howrey Professor of Trial Advocacy, Litigation, and Professional Responsibility at George Washington University Law School in Washington, D.C. He is also a contributing editor to Criminal Justice magazine and a member of the Section Council.