Estelle, Warden v. Mcguire – Oral Argument – October 09, 1991

Media for Estelle, Warden v. Mcguire

Audio Transcription for Opinion Announcement – December 04, 1991 in Estelle, Warden v. Mcguire

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Dane R. Gillette:

It is… it’s also clear, though, that the jury was instructed that before they could use any evidence of prior acts, whether it was the assaults on the wife… which came in to impeach her testimony… or the evidence of observations by neighbors of his handle… brutal handling of the child, or if it was the prior injuries, that they could only use that evidence if they found a clear connection between the prior acts and the crime in this case… such that it would permit them to make a reasonable inference that having committed one, the defendant had committed the other.

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Ms. Voris.

Well, the California courts have acknowledged, haven’t they, that this is an inevitable inference, if the defendant is one of the few people with custody of the child, and the child has a series of injuries over a period of time, it’s almost inevitable that the jury will conclude that this defendant was either the prime suspect or the perpetrator.

Thank you, Mr. Gillette.

William H. Rehnquist:

The case is submitted.

Dane R. Gillette:

It certainly may be a reasonable inference.

Ms. Voris, we’ll hear from you now.

Dane R. Gillette:

In this case–

Ann Hardgrove Voris:

Mr. Chief Justice, may it please the Court:

That’s almost inescapable.

Ann Hardgrove Voris:

The Ninth Circuit said that the aggregate effect of the admittance of irrelevant, highly prejudicial evidence, compounded by the trial court’s instruction to use that evidence in the most prejudicial manner possible, rendered the trial arbitrary and fundamentally unfair.

Dane R. Gillette:

–I think that’s very often, often the case.

Ann Hardgrove Voris:

Mark McGuire was denied due process of law by the use of the prior injury evidence, coupled with a jury instruction which gave maximum prejudicial effect, rather than a limiting effect.

Dane R. Gillette:

And in this situation there were only two people who could have committed this crime.

Ann Hardgrove Voris:

The Attorney General has suggested a test which requires that we first look at the relevance and then at the prejudice.

Dane R. Gillette:

It was either the respondent, or it was his wife.

Ann Hardgrove Voris:

The first point which I would like to make is that the battered child syndrome evidence… the battered child syndrome could have been proven without the prior injuries, at all.

Dane R. Gillette:

And in addition to the other testimony, there was also evidence presented by the… through prior statements of the wife, that on earlier occasions before the death of the child, she had observed bruises on the child.

Ann Hardgrove Voris:

The battered child syndrome can be, and Dr. Levine testified, that the battered child syndrome could be proven with the acts which took place which killed the child.

Dane R. Gillette:

And when asked… when the husband was asked, the respondent was asked about that, he hadn’t of… had no explanation to offer.

Ann Hardgrove Voris:

None the… so, I’m not sure that even on the threshold test of relevance, that this evidence passes the threshold test.

And I guess the stand… the standard evidence calculus… it’s not necessarily constitutional law, but just as a matter of law of evidence… is whether or not the permitted purpose for which the evidence is introduced dominates, despite its prejudicial effect in other respects.

Well, Ms. Voris, suppose that the trial court had told the jury that they could only consider the evidence of battered child syndrome as tending to show that the child did not die accidentally, and the jury was so instructed, would you still be here arguing that is unconstitutional?

Dane R. Gillette:

Yes, Your Honor, that’s correct.

Ann Hardgrove Voris:

I do not believe so.

Dane R. Gillette:

And we do not perceive that as being a constitutional issue.

Ann Hardgrove Voris:

In fact, Justice O’Connor, the defendants proposed a jury instruction at the time, which stated that evidence of prior injuries have… has been introduced for the purpose of showing that Tori… Tori McGuire suffered from the battered child syndrome.

Dane R. Gillette:

We see, really, a separation of the two parts of this case.

Ann Hardgrove Voris:

Such evidence, if believed, was not received, and may not be considered by you to prove that defendant is a person of bad character, or that he has a disposition to commit crimes.

Dane R. Gillette:

The Ninth Circuit found that there was error in the admission of the battered child evidence, and of the prior acts, which were offered in support of it, specifically finding that that evidence came in in violation of California law.

Ann Hardgrove Voris:

Such evidence was received, and may be considered by you only for the limited purpose of determining if it tends to show the injuries suffered by Tori McGuire, July 7, 1981, were not accidental.

Dane R. Gillette:

Clearly, that was an inappropriate determination for the Ninth Circuit to make.

Ann Hardgrove Voris:

That was the defendant’s proposed jury instruction.

Dane R. Gillette:

They had no business reevaluating California law.

Ms. Voris, why can’t you use it to prove… to prove the crime?

Dane R. Gillette:

California courts had held… the California Court of Appeal, had specifically held that that evidence was admissible and proper under California law, and I think it must be accepted as a given, for purposes of this case, that the battered child–

Suppose a child has died from a punctured lung, the lung being punctured by a broken rib.

Whether they were right or wrong about that, in the end, they had to find that the admission of the evidence was unconstitutional.

And the prosecution introduced evidence… introduces evidence that this defendant has been one of two custodians of a hundred other children over the past 2 years.

Dane R. Gillette:

–Precisely, Your Honor.

And every one of those other children had broken ribs.

Dane R. Gillette:

In the long run, I think that it doesn’t matter so much whether the California court was right or wrong.

Are you saying that evidence could not be admitted?

Dane R. Gillette:

The question is, the evidence having come in, this evidence not being shown to violate any specific protection or guarantee of the Bill of Rights, can the defendant, nevertheless, establish that its use in this case denied him a fundamentally fair trial?

Ann Hardgrove Voris:

No, I’m not.

Well, the California… to say that… whether there… you know… it doesn’t make any difference whether the California court was right or wrong.

Ann Hardgrove Voris:

Under California law, that evidence can be admitted.

You know, there is no such thing as right or wrong, a State law and Federal habeas.

Ann Hardgrove Voris:

Under Federal law, that evidence can be admitted.

If it doesn’t violate the Constitution, it’s no concern of the Federal habeas court, isn’t that right?

Ann Hardgrove Voris:

Battered child syndrome evidence is admissible.

Dane R. Gillette:

That is precisely right, Your Honor.

No, no, this is no the same child.

Dane R. Gillette:

And when I say right or wrong, I don’t think it matters whether the California court in this case had found that it was admissible under California law, or if it had found that it was inadmissible under California law.

These are other children, other children, 100 other children.

Dane R. Gillette:

And I want to talk about the… primarily about the question of the admission of the evidence, and the extent to which the admission of evidence–

And it is not being introduced for showing battered… battered child syndrome.

May I ask, though, does it make any difference whether the evidence was admitted for the purpose of proving the battered child syndrome, on the one hand; or for the purpose of proving that the defendant committed the earlier brutal acts, and therefore to give rise to the inference that he may also have committed the one for which he is being tried.

It is being introduced to show, ladies and gentlemen of the jury, is it likely, is it likely that a hundred other children, within the custody of this defendant and one other person, should all have broken ribs, just as this child does?

And that was the third part of the trial judge’s instruction.

Why isn’t that relevant, and why shouldn’t it be admissible?

Is that relevant at all, do you think?

Ann Hardgrove Voris:

Justice Scalia, that hypothetical tracks exactly United States v. Woods, wherein the Federal court stated that it was proper to admit battered child… the evidence of her previous seven children.

Dane R. Gillette:

–For constitutional purposes, I think it makes no difference.

Ann Hardgrove Voris:

Mrs. Woods had all these children which died of sudden infant death syndrome, or various forms of strangulation.

Dane R. Gillette:

The first question is, was this evidence properly evidence.

Ann Hardgrove Voris:

And finally when the court determined that all her previous children had died, then they were able to use that evidence for battered child syndrome purposes.

Dane R. Gillette:

The second issue is–

Well, why–

Let’s assume it was clearly properly admissible for the purpose of proving the battered child syndrome.

Ann Hardgrove Voris:

That–

Does it also mean it’s properly admissible to connect the defendant with the prior acts?

–Why isn’t this evidence of the same sort?

And I… as I understand it, there’s nothing in the record to connect him with the prior acts, other than the possibility he had custody of the child.

This child had had… all of these… child had these other injuries, and he was one of two people who had custody of her.

But he wasn’t the only one with custody of the child during those earlier times, was he?

It doesn’t conclusively prove that he’s guilty, but it’s… it’s relevant evidence, which, together with other evidence, can help a jury to decide that he was.

Dane R. Gillette:

–I don’t think that states a constitutional issue, Your Honor.

Ann Hardgrove Voris:

–First, because the murder, itself, was sufficient to prove the battered child syndrome; and second, because there was absolutely nothing tying him to these prior injuries.

Dane R. Gillette:

The extent to which the instruction may have permitted that, does not necessarily establish that had it been used by the jury for that purpose, that it would have resulted in a fundamentally unfair trial within the meaning of the due process clause.

Ann Hardgrove Voris:

There must be a foundational requirement.

Mr. Gillette, I take it that in a trial in which the defendant is charged with the… killing this child, the State offers evidence for the purpose of trying to persuade the jury that he’s guilty.

He was one of two people, one of only two people who had continuing custody of her.

And that would include the evidence of the battered child syndrome, would it not?

Ann Hardgrove Voris:

That’s correct.

Dane R. Gillette:

Precisely.

Ann Hardgrove Voris:

And the other person testified on the stand that she committed not only the acts which led to the infant’s death, but also the acts which were a part of the prior injuries.

To narrow the… as you suggest… narrow the possibility to someone who intentionally did it to the child, rather than accident.

It seems to me you’re confusing conclusiveness with relevance.

Dane R. Gillette:

That’s correct.

It can be relevant without being conclusive.

Dane R. Gillette:

And the battered child syndrome does have added significance with respect to who did it in this case.

It’s just one of many pieces of evidence that lead to the conclusion.

Dane R. Gillette:

Because very often, a part of that diagnosis, in addition to the observation of the actual injuries which the child has sustained, is evidence of an inconsistent or impossible explanation offered by a care-giver… and we use that term advisedly… as to how the child may have been injured.

But it doesn’t have to be conclusive to be admitted.

Dane R. Gillette:

In this case, on multiple occasions… to his wife, to the emergency room nurse, to the police… the defendant, the respondent in this case, insisted that Tori had fallen off of the couch.

Surely the fact that he was only one of two is something the jury ought to know.

Dane R. Gillette:

Yet the medical evidence demonstrate, persuasively, that there was no possibility that a fall by a 6-month-old child, whether it was sixteen inches, as the distance was measured from the couch to the carpeted floor in this case… or even 16 feet… could have resulted in that type of massive internal and external injuries.

Isn’t it more likely that he caused those prior injuries, than that I did… much more likely?

Dane R. Gillette:

In short, the battered child syndrome, in part, was supported by the fact the defendant gave a completely inconsistent and impossible explanation.

Ann Hardgrove Voris:

I believe, Your Honor, that that’s precisely the reason that character evidence is excluded, and similar evidence is excluded without a foundation to be shown, because the inference to be drawn is so powerful.

Dane R. Gillette:

Now, that brings us back again to the question that I want to primarily discuss with the Court, if I may, for a few minutes… and that is the issue of to what extent, and what is the process by which a Federal court should consider the issue of whether evidence came into the case in violation of due process, when there has been no showing of a specific violation of a guarantee of the Bill of Rights.

So it isn’t on the grounds of lack of relevance.

Dane R. Gillette:

And we think that there is a two-part analysis, a very limited analysis that would be appropriate for the Federal court to undertake in a case of that sort.

It’s perhaps that the relevance is too much, as you say?

Dane R. Gillette:

The first question the Federal court should ask is was it relevant?

Ann Hardgrove Voris:

Yes, it’s as… as Justice Kennedy used the term super-relevant.

Dane R. Gillette:

If it was relevant, we submit that due process has been satisfied.

Ann Hardgrove Voris:

And as Justice Cardozo had said, the natural and inevitable tendency to give character evidence excessive weight, justifies condemnation to the jury, irrespective of the guilt on the present charge.

Dane R. Gillette:

If it was not relevant, the next step for the court to determine, the Federal court, is was it inflammatory?

Ann Hardgrove Voris:

And in–

Dane R. Gillette:

And to determine whether the evidence was inflammatory, we submit as appropriate the test which this Court has used in other situations for evaluating due process violations… specifically, whether there is a reasonable probability that had this evidence been excluded, there would have been a different result in this case.

And how about… are you calling prior bad acts evidence?

Dane R. Gillette:

From by a reasonable–

Are you subsuming that under character evidence?

Mr. Gillette, the only problem I have, is how it… how we should view the case in light of this misleading instruction.

Ann Hardgrove Voris:

–What I’m doing, Your Honor, is what happened here was–

I mean, I can follow your argument that the evidence was admissible as a matter of State law, and that it’s relevant to show that the prior injuries were not accidental, and that this was not either.

Can you answer my question?

But how can we justify the instruction that tried… said the jury could use it to link the defendant with the prior acts–

Ann Hardgrove Voris:

–Yes.

Dane R. Gillette:

–Because–

You are classifying bad acts evidence as a form of character evidence?

–and this act?

Ann Hardgrove Voris:

Yes.

Dane R. Gillette:

–I’m sorry.

Do you think there is a prohibition in the Federal Constitution against using that sort of evidence to prove the likelihood of this particular defendant having committed the crime?

Dane R. Gillette:

Because I think that you need to separate it into two, separate issues.

Ann Hardgrove Voris:

No, Mr. Chief Justice, my belief is that every single State of the Union, and every… and the Federal system requires that there be an analysis of the evidence prior to its admission.

Dane R. Gillette:

I think the first, primary constitutional issue was, was this evidence even admissible by due process?

Ann Hardgrove Voris:

And in this case, when the analysis was to be undertaken, the court was told and believed that no analysis was necessary.

Let’s say we agree with you, that far.

Ann Hardgrove Voris:

This position is still being taken, that this prior… that battered child syndrome evidence is admissible, without any guidance regarding the characters in terms of similars.

Now don’t we also have to look, in this case, at the instruction to see how it was used?

Ann Hardgrove Voris:

Now, what happened in this case, was then an instruction was given, which took it from being battered child syndrome evidence to rebut an accident defense, and turned it into similars evidence, by means of a connection made by the instruction… not by the evidence.

Dane R. Gillette:

You look to the instruction, but you’re looking for something different in that situation.

Ann Hardgrove Voris:

And what happened also is that intent and identity were provided not by evidence in this case, but by this instruction.

Dane R. Gillette:

You’re looking… and I think appropriately you would use the test the Court stated in Boyde v. California.

Ann Hardgrove Voris:

And in so doing, the burden of proof was shifted, and the presumption of innocence was taken away.

Dane R. Gillette:

Is there a reasonable likelihood that the jury was misled in a way that would allow them to use this evidence in some unconstitutional or inappropriate manner?

Ann Hardgrove Voris:

When that happened, fundamental fairness was taken away, and due process was denied.

Dane R. Gillette:

And it has to be a violation of the Constitution, in the way that it was used.

Well, how… the trial court, I take it, charged that the burden of proof was on the State, did it not?

Dane R. Gillette:

Now, if the jury were to consider this evidence as evidence directly of guilt, that they conclude that the defendant committed those two prior injuries, and as a result they’re convinced that he committed the murder with which he was charged, in order to do that, under the instruction in this case, they have to find a clear connection between the prior injuries and the injuries that resulted in the child’s death.

Ann Hardgrove Voris:

Yes.

Dane R. Gillette:

I think that’s an important point to emphasize, because the Ninth Circuit consistently has misquoted that instruction, by leaving out the requirement that the connection be clear.

So how was… how was admission of this evidence change the burden of proof?

Dane R. Gillette:

I do not think due process is… is violated if a defendant’s conviction is based upon part on the use of evidence from a jury which… in which they found a clear connection between prior acts and the acts that were specifically charged, so that they can reasonably conclude the defendant must have committed them.

Ann Hardgrove Voris:

The way it did was that it… it gave the jury permission to identify… an argument was made that the evidence could… some facts do double duty, it was argued.

Dane R. Gillette:

Now, there is one other possible use that has been suggested, that would be inappropriate for the jury in this particular case, given this instruction.

Ann Hardgrove Voris:

And so the… the evidence was admitted for one purpose.

Dane R. Gillette:

And that would be to establish the defendant had some general, criminal disposition that he was just basically a real bad guy.

Ann Hardgrove Voris:

And then it was used, through the means of the instruction, for an entirely different purpose, to establish his bad character.

Dane R. Gillette:

And as a result, his character was such that the jury should convict him alone on that evidence has been suggested in one of the amici brief in support of respondent, that reaching that conclusion or an instruction permitting that inference would violate the due process clause of the Fourteenth Amendment.

Well, that… that might be a misuse of evidence, perhaps, or a use… as you say, fact… but I don’t say how that changes the burden of proof.

Dane R. Gillette:

The problem, however, is that this is not a case in which even if the jury drew an inference of character, it would be drawing an inference of general character or disposition.

The trial court clearly charged the jury where the burden of proof was.

Well, what do you say about the amicus proposition?

Your analysis would make every… almost every error in the admission of evidence, you would be a claim that there’s been a shift in the burden of proof.

Could there be an instance… suppose there’s an instruction that ladies and gentlemen of the jury, common sense might tell you that if this defendant committed a murder a year ago, he probably committed the one this year for which he’s now on trial… the grossest form of prior bad acts testimony.

Ann Hardgrove Voris:

Oh, no, Your Honor.

Is that a violation of the Constitution?

Ann Hardgrove Voris:

I do not believe that simply the admission of the evidence.

Dane R. Gillette:

I don’t be–

Ann Hardgrove Voris:

It’s the evidence, coupled with this erroneous jury instruction.

Because it’s not inflammatory.

Ann Hardgrove Voris:

In–

Your test is whether or not it’s inflammatory.

Well, the jury instruction plainly said that they couldn’t use this evidence of prior injuries to show bad character.

It’s maybe prejudicial and takes away the burden of proof that should belong to the Government and so forth, so forth.

Ann Hardgrove Voris:

–Well–

It’s not inflammatory.

That’s what it said.

Dane R. Gillette:

–Well, our test, with respect to inflammatory, is first that the evidence has to be found to be irrelevant before you get to the issue of it being inflammatory.

Ann Hardgrove Voris:

–At one point it said… it did say that.

Dane R. Gillette:

With respect to the instruction, that’s a somewhat different issue.

Ann Hardgrove Voris:

But the rest of the instruction–

Dane R. Gillette:

If it were admitted solely on that ground, we think that it would be relevant, and that would be the end of the inquiry as far as due process was required.

Or to prove that the defendant has a disposition to commit crimes.

Dane R. Gillette:

We do not believe that the Fourteenth Amendment… based on any cases which this Court has decided… establishes that general character evidence would violate due process.

Ann Hardgrove Voris:

–That’s correct, Your Honor.

Excuse me, why would it be irrelevant?

Ann Hardgrove Voris:

That portion of the instruction was in accordance with the Constitution.

Why would it be irrelevant?

Ann Hardgrove Voris:

That portion of the instruction was in accordance with California law.

Something is relevant if it tends to show that it’s… if it is a fact that makes it more likely that another fact exists or not?

Ann Hardgrove Voris:

The rest of the instruction negated that portion of the instruction which said… that dealt with the disposition.

And you don’t think it’s more likely that somebody who murdered a year ago is guilty of this… you don’t think that a person who murdered before is more likely than the average citizen who has never murdered, to have… to murder again?

Ann Hardgrove Voris:

And I’m referring to the instruction which is on page 6 of respondent’s brief, which states that evidence has been introduced for the purpose of showing that defendant committed acts similar to those constituting a crime other than that for which he’s on trial.

Dane R. Gillette:

I’m sorry, Your Honor.

Ann Hardgrove Voris:

Now, that very first line designates the evidence as being similar, in advance.

Dane R. Gillette:

I may have misspoken.

Ann Hardgrove Voris:

It was not introduced for the purposes of being similar evidence.

Dane R. Gillette:

I do not think that would be irrelevant.

Ann Hardgrove Voris:

It was introduced for the purposes of the battered child syndrome only and to negate a potential accident defense.

Dane R. Gillette:

I think that would be.

Well, don’t you think under this… these instructions, however, that the jury was told to use this evidence of prior injuries… the jury had to find that the defendant committed these other offenses?

Dane R. Gillette:

What I was suggesting is that once the Federal court had determined that it was relevant, constitutionally–

Ann Hardgrove Voris:

Yes, it not only told them that it had to find that he committed them–

That’s the end of it.

No, no, not had to.

Dane R. Gillette:

–That would be the end of the discussion for their purposes.

Not had to.

But you agree, don’t you, that the issue of whether it is relevant constitutionally includes the issue, or must include the issue whether there is a foundation in other evidence to tie potentially relevant evidence to this specific defendant?

That the evidence could only be used if the jury found that the defendant committed these prior offenses.

In other words, you’re using relevance, I assume, in a broad sense, including foundational evidence.

Ann Hardgrove Voris:

–I believe that it told them both… that it said, this is similar evidence, this is evidence of similar crimes.

Dane R. Gillette:

We are using relevance, Your Honor, in the very broad sense that this Court used it in New Jersey v. TLO, in which it suggested that evidence is universally recognized as relevant if it has a tendency to prove any fact of consequence to the action that is being tried.

Ann Hardgrove Voris:

And it then went on to say that… it was… such evidence was received, and may be considered by you only for the limited purpose of determining if it tends to show three things: (1) the impeachment of Daisy McGuire’s testimony that she had no cause to be afraid of the defendant; (2) to establish the battered child syndrome; and (3) also a clear connection between the other two offenses and the one of which the defendant is accused, so that it may be logically concluded that if the defendant committed–

But the tense is important there.

If the defendant committed other offenses.

If it does have that tendency… and evidence does have that tendency only if there is, in the usual case, a foundation connecting that evidence to this particular defendant.

Ann Hardgrove Voris:

–he also committed the crime charged in this case.

Any piece of evidence, I supposed, theoretically can be relevant.

Well, the jury’s going to have to find that the… that the defendant committed the prior offenses.

But it may not, in fact, be relevant in the case because there’s nothing tying it to the proposition that you’ve got to prove, nothing tying it to this defendant.

Ann Hardgrove Voris:

Right, and the question here is why didn’t the court use this particular instruction, proposed by the defense attorney, which said prior injuries.

And so that’s why I asked the question.

Ann Hardgrove Voris:

It specified them… rather than–

When you say it’s got to be relevant, I assume you mean there has got to be a foundation for its… to demonstrate its relevance.

But–

Dane R. Gillette:

Certainly its relevance to the particular action that’s on trial.

Ann Hardgrove Voris:

–I’m sorry.

Dane R. Gillette:

For example–

–Ms. Voris, that might have been a preferable instruction, the one you tendered.

So that in this particular case, if there is a… nothing more than a 50/50 chance that at the time of the prior injuries it was the defendant rather than the wife who had the custody, would you say that this was… that the… that the syndrome evidence was relevant based on that foundation?

But that doesn’t render this conviction unconstitutional under the Federal Constitution, that the trial court chose between two instructions and chose one that was, perhaps, vaguer or less precise than the one you wanted.

Dane R. Gillette:

–I wouldn’t even go that far, Your Honor.

Ann Hardgrove Voris:

That’s correct.

Dane R. Gillette:

Because I think the Syndrome evidence is admissible right from the start, in any case in which… whether it’s a murder, or it’s a child abuse–

Ann Hardgrove Voris:

However, the problem with this instruction is that it says… it refers to other offenses.

Well, then you were saying, I think, that the evidence is relevant, regardless, for your… for your constitutional test.

Ann Hardgrove Voris:

Also included in here are the incident where he slapped his wife, the incident where he carried his baby by one arm.

The evidence is relevant regardless of the foundation which may tie that evidence to this particular defendant.

Ann Hardgrove Voris:

Those matters, those were introduced and argued by the prosecutor to prove the point that the violent person in this household was Mr. McGuire.

You’re not saying… do you really mean that?

Ann Hardgrove Voris:

You must–

Dane R. Gillette:

–What I’m saying is I think this evidence would always be relevant to prove that in a case where the prosecution must establish that the child was intentionally injured or killed… and in this case, the prosecution, to establish second degree murder under California law had to prove an intent to kill… that evidence of the battered child syndrome would assist the prosecution in making that point.

Did you object to those instructions?

Dane R. Gillette:

It wouldn’t matter who actually committed the crime.

Ann Hardgrove Voris:

–I’m sorry?

Dane R. Gillette:

Because neither of the experts… the pathologist, nor the pediatrician who had examined the child in the emergency room… testified as to who did it.

Did you object to that evidence?

Well, I think then that you’re saying that your concept of relevance does not include the kind of foundational requirement that I’m talking about.

Ann Hardgrove Voris:

Did the trial attorney object to the evidence?

Dane R. Gillette:

It may not, as to… it–

Ann Hardgrove Voris:

Yes.

And it does not in this case, I think you’re saying.

Of the pinching and carrying by the arm?

Dane R. Gillette:

–To be foundational in this case, would not require linking to a particular defendant.

Ann Hardgrove Voris:

I believe so, although there was some discussion, which I did cite in my brief, that she acceded to the evidence regarding the pinched cheeks on the ground that she did not believe, and she understood from the previous discussions, that that would not be associated with the prior injuries to the baby.

Dane R. Gillette:

It requires showing that it has relevance to proving a fact in this case.

Ann Hardgrove Voris:

So I cannot say unequivocally that she did object.

Dane R. Gillette:

The fact in this case was the intent to kill.

But in any event, your case is… or it seems to me has to be… that the jury was told that this evidence proved the acts.

Dane R. Gillette:

And it was certainly relevant to prove that point.

And that’s quite different from saying that this is a question for the jury to determine.

May I just clarify one thing in my own thinking?

And it seems to me that the fairest reading of part 3 of this instruction is that this is for the jury to determine.

Assuming that the battered trial… the evidence you seek to introduce is three prior acts of violence to the child that are provable by medical evidence and you can establish the dates when they took place.

The word “if”, as Justice White points out.

That would be admissible, as I understand your theory… and I think I agree with you… regardless of whether you tie that to the particular defendant?

There’s a difference.

Dane R. Gillette:

That’s correct, Your Honor.

Ann Hardgrove Voris:

Except that the other offenses aren’t identified.

And it would still be admissible if, after it goes in, the defendant proves that he was in Europe, or something like that, at the time of the earlier incidents, and therefore could not have committed those acts.

Ann Hardgrove Voris:

When you throw into an instruction evidence of prior violence and tell the jury that if you believe that he committed these other offenses, and they’re not identified… and in fact, there is reference to the impeachment of Daisy McGuire, in that he slapped his wife, and therefore she was intimidated, and therefore, that is therefore that is the reason that she testified that she committed the murder of her own baby and that she committed the other acts which were used against him… and throw that in with the establishment of the battered child syndrome, and then tell the jury that it can make a clear connection between the other two offenses and the one of which the defendant is accused, so that it may be logically concluded that if the defendant committed other offenses, he also committed the crime charged in this case.

It would still be admissible, wouldn’t it?

Ann Hardgrove Voris:

The other offenses were not murder, and the other offenses are being used to conclusively tell the jury to… to use the prior injuries to identify him as the perpetrator of the crime in this case.

Dane R. Gillette:

Yes, it would, Your Honor.

Let’s assume that’s true, Ms. Voris, and you’re right, that generally speaking, certainly in Federal court and most State courts I’m familiar with you don’t let in evidence of prior character like that.

So it would… but it would not be admissible for the purpose of proving that the defendant committed the prior acts, unless you had some evidence that the defendant had the opportunity, and all the rest.

But let’s assume we have a State that wants to do it.

Dane R. Gillette:

Yeah–

Why is it unconstitutional to do that?

My problem with this case is, in this case, the trial judge seems to have told the jury that those prior acts were offenses for which the defendant was responsible.

Why is it unconstitutional to say, look it, this person beat the child within an inch of its life on five other occasions.

And I don’t know what the evidentiary foundation for that instruction was.

We think the jury should know that.

Dane R. Gillette:

–Well, I think that… the problem is, that the trial judge was not as careful in the wording of this instruction.

The prosecution can show on five previous occasions this person beat the child so severely the child almost died.

Well, the question is whether he made such a bad instruction that it may have tainted the verdict.

Then the sixth time the child is brought in, the same kind of thing, and the child dies.

Dane R. Gillette:

And my submission to you, Your Honor, is that it did not.

Does the Constitution require that this evidence of the prior behavior by this defendant be excluded?

Did not.

Why does the Constitution require it?

Dane R. Gillette:

There is no reasonable likelihood.

Ann Hardgrove Voris:

The Constitution requires that the hypothetical be, as you expressed it, that it be the prior behavior of the defendant, that it not just be some… an act which took place at an unknown time, by an unknown person, in an unknown place, with no witnesses… except a witness who said she did it… and be used against the defendant in that case.

Do you think it would have if he had said to him, the evidence in this case shows that the defendant committed these prior acts, and you may infer from that… that evidence, that he also committed this act.

So you’re saying it’s not relevant enough, is that it?

Would that have been an unconstitutional instruction, do you think?

The proof of the prior… the proof of the prior is… behavior is not sufficient.

Dane R. Gillette:

I don’t think that would raise a Federal constitutional violation, no, Your Honor.

Is that your objection?

Dane R. Gillette:

I think it’s important to emphasize, as I started to a moment ago, to… to the extent we are talking about disposition evidence in this case and whether it’s a demonstration of bad character, this is not a general disposition case.

You needed more proof of the prior, of the prior character?

Dane R. Gillette:

And that is why I think that ultimately the argument with respect to the Fourteenth Amendment analysis by the amici is really not necessarily relevant to this case.

Ann Hardgrove Voris:

There must be some tie to the defendant.

Dane R. Gillette:

At most, what the evidence of the prior injuries showed was that if there was a linkage, this particular defendant had a disposition or tendency to mistreat this particular victim.

Well, Justice Scalia’s hypothetical did make that tie.

Dane R. Gillette:

This was specific disposition evidence.

Ann Hardgrove Voris:

Right.

Dane R. Gillette:

It went to the relationship between this defendant and this victim.

I’m frankly surprised at your answer.

Dane R. Gillette:

And the California courts have drawn a very clear distinction between that type of specific disposition relating to the relationship between the victim and the defendant, as opposed to some general type of character evidence.

I thought you would have told Justice Scalia no, this can’t be introduced.

Well, this instruction starts out by saying evidence has been introduced for the purpose of showing that the defendant committed acts similar to those constituting a crime other than that for which he was on trial.

It’s too probative.

And he says, such evidence, if believed–

It’s too prejudicial.

Dane R. Gillette:

Precisely.

We don’t allow that in any State.

–may be used for da, da, da, da.

But you seem now to be abandoning that and saying, oh, well, if it’s not tied to the defendant… that wasn’t his question.

So I suppose the jury had to consider, under this instruction, whether there was enough evidence to believe that the defendant committed these prior acts.

Ann Hardgrove Voris:

Well, maybe I misunderstood his question.

Dane R. Gillette:

Well, they would have to believe it, that’s correct.

Ann Hardgrove Voris:

My understanding of the hypothetical… and correct me if I’m wrong… was that you have five prior cases.

Dane R. Gillette:

That’s another part of it, Your Honor.

Ann Hardgrove Voris:

Where… and the cases… there are a legion of cases where some… where babies are brought in, and they’ve got bumps on their heads, and their fathers bring them in, and it happens time after time after time.

Yes.

Ann Hardgrove Voris:

And finally, the baby dies, or some terrible neglect takes place.

Dane R. Gillette:

They were told they couldn’t use it for general disposition.

Ann Hardgrove Voris:

And there… results in peritonitis.

Dane R. Gillette:

They had to believe it.

Ann Hardgrove Voris:

And yes, those injuries can be… all the previous injuries, which are tied to the defendant, can be brought in to prove the battered child syndrome.

Dane R. Gillette:

They had to find a clear connection, before they could use it.

Ann Hardgrove Voris:

They can be brought in when the person trips over the… says he–

They had to… they had to believe that the… under this instruction… that he committed these prior acts.

No, I’m not bringing it in to prove the battered child syndrome.

Dane R. Gillette:

That is also correct.

I’m bringing it in to prove that this is the person who battered the child… not that the… just that the child was battered by somebody, intentionally.

Dane R. Gillette:

The instruction does require it.

But that this was the person who battered the child intentionally.

Dane R. Gillette:

It’s somewhat specific in that regard.

Because this person did it five times before, admittedly did it five times before.

Dane R. Gillette:

The–

And ladies and gentlemen of the jury, this was the sixth time.

But that’s quite… but that would not have been necessary if it had merely been offered for the purpose of proving battered child syndrome.

He is a person of that character.

Exactly.

He’s done it five times before.

Dane R. Gillette:

–Yes, that’s true.

We think he did it the sixth time.

And so this is a… this is a… this goes beyond… this makes it harder to use this evidence than if you were just offering battered child evidence.

Now, as I… it’s my impression, although you seem to contradict it… that most States and the Federal courts would not allow it to be used for that purpose.

Dane R. Gillette:

Perhaps.

And maybe that’s good, but I don’t know that the Constitution requires that those States take that position.

Dane R. Gillette:

It certainly… the instruction could have been more carefully worded.

And I would like you to tel me why the Constitution requires it.

Dane R. Gillette:

I don’t disagree with that.

Ann Hardgrove Voris:

–Well, I believe that under 1101(b), and 404(b), both of the Evidence Code, if you have a modus operandi, if you have something that is an identifying trait of… that the court can use, such as you’re saying, you know, if the baby’s been dropped on his head by this guy five previous times, that, yes, it can be used.

Dane R. Gillette:

And to the extent that it was not as carefully worded as it perhaps should have been, there’s a potential that a jury may have misunderstood.

Ann Hardgrove Voris:

No, there is not a constitutional mandate that says that evidence cannot be used.

No, but this is more favorable to the defendant than–

Ann Hardgrove Voris:

But it must be tied to the defendant.

Dane R. Gillette:

It could have that… it could have that effect.

Ann Hardgrove Voris:

It must be tied… there must… there’s a foundational requirement.

–than just offering… you could have gotten in this battered child evidence without requiring proof of the defendant’s connection with the prior acts?

So you are saying that the evidence here was simply not relevant enough?

Dane R. Gillette:

Correct, Your Honor, certainly that’s the–

Ann Hardgrove Voris:

No.

Well, there was no proof of the defendant’s connection with the prior acts, was there?

That just being one of two people, in prior custody of the child does not sufficiently tie it to this defendant to enable it to be admitted, as a matter of constitutional law?

Well–

Ann Hardgrove Voris:

Well, I would not characterize it as being that it’s not relevant enough.

–Other than the fact he carried the child by one arm, at one time, and pinched her cheeks.

Ann Hardgrove Voris:

I would characterize it as… that the certain requirements which must be taken foundationally to make it similars evidence, which is what I hear you as talking about, those… that was not… that did not happen here.

And those had nothing to do with the serious injuries that are the subject of this evidence.

If the evidence were that no one else had ever had custody of the child except the defendant, would that satisfy your requirement?

Dane R. Gillette:

–Well, they–

Ann Hardgrove Voris:

I don’t know.

Am I wrong on that?

Ann Hardgrove Voris:

I… my… I do still believe–

Dane R. Gillette:

–No, you’re not wrong about that.

If the evidence were that no one else in the child’s life had ever touched the child except the defendant, that would not suffice to… for… for your similars analysis?

Dane R. Gillette:

They certainly were not the events which led to the child’s death.

Ann Hardgrove Voris:

–Well, I still believe that under the similars analysis, the… and we are… we are discussing, actually, evidence questions here.

But the instruction says evidence has been introduced for the purpose of showing that the defendant committed those prior acts.

Ann Hardgrove Voris:

Under the similars analysis, I do believe that there… it must be similar.

Dane R. Gillette:

Yes.

Ann Hardgrove Voris:

I do not believe… and in all of the battered child syndrome cases the evidence was–

And that you have to believe that… unless the jury believed that evidence… believed that the defendant committed that… committed those crimes, the evidence shouldn’t have been used by them at all.

So if we have five cases of a broken wrist, and this is a case of a broken rib, that would be the objection that you are now referring to?

Dane R. Gillette:

That is true.

Ann Hardgrove Voris:

–Well, now, but if it’s a case of a brutal beating versus a rectal tearing, which is the only purpose to bring it in is to inflame the jury and make them want to jump out of the box and grab this by… this guy by the throat, then what you have is extreme fundamental due process error.

Dane R. Gillette:

They may well have been precluded from using it in any way.

Ann Hardgrove Voris:

It’s not similars.

Dane R. Gillette:

And the problem I think the court got into was trying to take three very separate types of what may be loosely termed prior-act evidence and putting them all together into a single instruction–

So it’s the dissimilarity of the acts in this hypo that raise the error, as you put it, to the constitutional dimension.

Mr. Gillette, what was the evidence referred to in the instruction that had been introduced for the purpose of showing the defendant committed acts similar to those constituting the crime?

Ann Hardgrove Voris:

I do not believe that the evidentiary error raises this to a constitutional level, except for the fact that there was nothing which tied him to it.

Dane R. Gillette:

–There was… I’m sorry.

Ann Hardgrove Voris:

There was no evidence about–

Exactly what was that evidence?

Well, there was evidence that he was one of two customary custodians.

Dane R. Gillette:

There were three types of evidence which, I believe, were governed by this instruction: one was the prior acts that we’ve been talking about.

Ann Hardgrove Voris:

–There was evidence… there was some evidence of that.

What prior acts?

Ann Hardgrove Voris:

There was some evidence also that he–

Dane R. Gillette:

The prior injuries to the child.

Well, how much more did they need?

The injuries to the child, the battered syndrome evidence.

I mean, I… of course there was some evidence.

Dane R. Gillette:

The two injuries which were not a part of the fatal injuries, yes.

There was enough evidence to go to the jury, and the jury could reasonably find that he was one of two customary custodians.

Yes.

What more, do you say, would constitutionally be required for its admissibility?

Dane R. Gillette:

That was one part of it.

Ann Hardgrove Voris:

–I believe that some foundational evidence that perhaps he… there was no evidence regarding these prior injuries, other than the fact that they happened.

Yes.

Ann Hardgrove Voris:

There was no evidence, really… there was some evidence as to time.

William H. Rehnquist:

We’ll hear argument now in case No. 90-1074, Wayne Estelle v. Mark Owen McGuire.

Dane R. Gillette:

And that probably should have been separated out, but it wasn’t.

Ann Hardgrove Voris:

They were perhaps 5 to 8 weeks old.

William H. Rehnquist:

Mr. Gillette.

Dane R. Gillette:

The second type of prior injury evidence was testimony that the defendant had been brutal in his treatment of the wife, and that she had previously complained about his treatment of her, and had sought assistance… information on a battered wife’s shelter.

Ann Hardgrove Voris:

There was no evidence as to who the rib injuries were inflicted, other than that… that… there was no evidence as to that.

Dane R. Gillette:

Mr. Chief Justice, and may it please the Court:

That evidence had been offered to impeach her testimony that she was not afraid of the defendant.

Ann Hardgrove Voris:

And there was… the only evidence regarding the other injury… the only eyewitness testimony was from Mrs. McGuire, who said that she did it herself.

Dane R. Gillette:

This case is before the Court on a writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

And then the third type was the evidence of the… specifically, of the mishandling, the very brutal, mishandling of the child, that had–

Ann Hardgrove Voris:

I do not… I don’t believe that they’re similar enough.

Dane R. Gillette:

Like Coleman v. Thompson last term, this is a case about federalism.

The pinching, and the holding by the arm?

Ann Hardgrove Voris:

However, I don’t believe that that is the constitutional question here.

Dane R. Gillette:

Specifically, it deals with the extent to which a Federal court may review the admission of evidence in a State criminal trial pursuant to the due process clause of the Fourteenth Amendment.

–Correct, as well as Mrs. McGuire’s statement to friends that she was very concerned about the… respondent’s mistreatment of the child.

Ann Hardgrove Voris:

The question here is, if the evidence… this evidence was introduced for a particular purpose, and then the jury was instructed to use it as character evidence, and to use it for the most prejudicial purpose that it could–

Dane R. Gillette:

Although this Court has long recognized that a defendant may be denied due process if his trial is not fundamentally fair, and has also noted that the test for evaluating fundamental fairness is less demanding than the beyond-a-reasonable-doubt test of Chapman v. California, it has not provided any specific guidance to assist the lower Federal courts in evaluating such cases.

And so this instruction covers all those things?

The jury was instructed not to use it for character evidence.

Dane R. Gillette:

While we recognize, of course, that bright lines are difficult to draw in an area as amorphous as due process, we nevertheless believe that some more specific guidance can be provided, and that this case illustrates the need for precisely that type of guidance.

That is correct.

Ann Hardgrove Voris:

–Well, in so many words it was.

Dane R. Gillette:

I want to touch very briefly upon a few of the facts in the case which will highlight what the Ninth Circuit did, and then turn to the two-part test which we propose, and discuss the reasons why we urge its adoption upon this Court.

And it has the three sub-parts to it: to impeach Mrs. McGuire, to establish battered child syndrome, and then the clear connection to establish its connection.

Ann Hardgrove Voris:

It was specifically instructed to that.

Dane R. Gillette:

Respondent in this case was convicted, in 1982, by a jury in Oakland, California, of second degree murder.

And also other… I mean, it was also shown, was it not, that he was one of only two people who had general custody of this child?

Ann Hardgrove Voris:

But the rest of the instruction said, use it.

Dane R. Gillette:

The victim was his 6-month-old child, Tori.

That’s true.

Well, do you think without the… your claimed error in instructions, that there would have been a denial of due process?

Dane R. Gillette:

Tori was brought to the hospital emergency room on July 7, 1981, by respondent and his wife.

And more importantly–

The court of appeals seemed to think so, because there was no defense of accident.

Dane R. Gillette:

She was pronounced dead 40 minutes later.

Now that’s not enough to, alone, establish that he was guilty.

And so the… and that the evidence only rebutted the lack of accident, only showed the lack of accident.

Dane R. Gillette:

Testimony from the coroner and the pediatrician who examined her in the emergency room established that she had sustained significant injury as a result of a beating.

But it is certainly highly probative evidence, which, together with other evidence, would prove it.

And the court said that we must… so that the probative value of the evidence was negligible, and its prejudicial nature very high.

Dane R. Gillette:

There were contusions on her chest and abdomen, and there was massive damage to her internal organs.

–Absolutely, and that other evidence included not just that he was only one of two people who could do it, he was the only person who could have committed this crime.

And so they had to draw a balance.

Dane R. Gillette:

Both of those witnesses were allowed to testify as experts that Tori was the victim of battered child syndrome.

Because he had… and it was uncontradicted… sole, and exclusive custody of the child for at least a 10-minute period prior to her death.

And that the prejudice outweighed the probative value, and therefore a denial of due process.

Dane R. Gillette:

In support of that diagnosis, the experts were also allowed to refer to trauma apart from the injuries which had resulted or which had caused the death of the child… specifically, two earlier injuries: a tearing wound to the rectum, and evidence of previously broken ribs, or fractured ribs.

And the medical testimony established that that child’s death had to occur within a very short time of the infliction of the injuries.

Is that… do you defend that proposition?

Dane R. Gillette:

Neither… that injury was not completely healed yet.

So that might have been… it might have been smarter not to even introduce the prior evidence… evidence of prior injuries.

Ann Hardgrove Voris:

Yes, I do.

Dane R. Gillette:

Both of those injuries were at least several weeks old.

Except, Your Honor, that–

Ann Hardgrove Voris:

Because the initial… in using Mr. Gillette’s test of relevance, there was no initial reason to bring this in.

Dane R. Gillette:

The diagnosis of battered child syndrome, as well as the admission of the priors as a part of the prior injuries, as a part of that, was admitted pursuant to long-standing and accepted California case law, permitting the battered child syndrome.

If you knew you were going to get into this kind of trouble.

Ann Hardgrove Voris:

They had established the battered child syndrome simply with the acts that took place in the murder.

Mr. Gillette, now that evidence, the battered child syndrome evidence, is relevant for what purpose?

[Laughter]

So it was relevant evidence, admissible relevant evidence, but as it turned out, it was… its probative value was negligible and its prejudicial impact great.

Dane R. Gillette:

To establish, specifically, that this child’s death was not an accident; that she was intentionally killed.

–If we had known 9 years ago, I’m not sure that that all would have happened.

Ann Hardgrove Voris:

No, I do not concede that it was admissible relevant evidence.

Was it used in this case for any other purpose?

Dane R. Gillette:

But that is considered a legitimate part… in every court which has considered the issue of battered child syndrome, because all those previous injuries tend to show the pattern that this child’s… what happened to this child in this case was a result of a pattern of mistreatment, and that her death could not have been accidental, that she was intentionally killed.

Ann Hardgrove Voris:

It was irrelevant to this, because, for example, the–

Dane R. Gillette:

It was offered for the purpose of proving that the death was intentional.

And the prosecution had to prove that to the jury beyond a reasonable doubt.

Well, at least the court… the Eighth Court of Appeals seemed to think it had some limited probative value.

Dane R. Gillette:

There has been an argument made that the jury might have used it as a result–

Now, in addition to the other evidence we’ve discussed, and the fact that he had sole custody, we also have the confrontation between Mrs. McGuire and the respondent in the emergency room after the child has been brought in.

Ann Hardgrove Voris:

–But, if you were to weigh it under at least California Evidence Code 352, the probative value versus the prejudicial effect, the prejudicial effect was monumental.

It was offered as a means of linking the defendant with the injuries?

Dane R. Gillette:

And Mrs. McGuire, while Tori is being treated in the emergency room, asks the respondent, point blank, what happened to Tori?

Ann Hardgrove Voris:

And when coupled with–

Dane R. Gillette:

–No, Your Honor, battered child syndrome does not identify the perpetrator of the offense.

And his response was, she fell off the couch.

Ann Hardgrove Voris:

–Well, do you think that’s a constitutional requirement, the provision of California Evidence Code… whatever number it is?

Well, I’m talking about what happened in this case.

Dane R. Gillette:

And she… Mrs. McGuire asks him again, and he repeats the same explanation, she fell off the couch.

Ann Hardgrove Voris:

When it is coupled with a jury instruction which makes the… permits the jury to make a connection that the evidence does not make, that makes it… brings it to a constitutional dimension.

What… there was an instruction given by the trial court?

Dane R. Gillette:

And finally she says to him, you are responsible.

Ann Hardgrove Voris:

It makes–

Dane R. Gillette:

Yes, Your Honor, that’s correct.

And the respondent says nothing.

Pardon… I think I can rephrase what Justice White asked you.

And that instruction, apparently, said that the evidence could be used to show that the defendant committed the crime charged?

Dane R. Gillette:

Now, that failure to respond to her accusation was proper evidence, in California, of a silent adoption of that accusation… consciousness of guilt.

Part of the Ninth Circuit’s reasoning here, was that the evidence need not have been admitted because the defendant did not raise accident as a defense.

Dane R. Gillette:

The argument has been made that a jury might so interpret the instruction.

Well, if the jury didn’t believe that the defendant committed these prior acts… why there’s certainly the admission of this evidence didn’t hurt anybody.

I gather they thought maybe a defendant filed an answer to an information or indictment in California.

Well, isn’t that what the instruction said?

And then the question is, was there enough other evidence to convict?

Do you subscribe to that view?

Dane R. Gillette:

The instruction referred to evidence of prior acts by the defendant.

Yes, Your Honor.

Ann Hardgrove Voris:

–Yes, all previous cases under California and Federal law–

It said evidence has been introduced for the purpose of showing that the defendant committed acts similar to those constituting a crime other than that for which he is on trial.

And I doubt if any of them would say there wasn’t.

I meant as a principle of constitutional law.

Dane R. Gillette:

Yes, that’s correct.

There certainly was other evidence.

Ann Hardgrove Voris:

–I subscribe to the view that all previous cases, when they analyzed the evidence on a foundational level, required certain foundational matters.

Dane R. Gillette:

And–

And if the defendant… if the jury did believe that he committed these prior acts, I suppose there might be a question of whether there was enough evidence to sustain that conclusion.

Ann Hardgrove Voris:

Those were not looked at in this case.

And what evidence was that?

But it sounds to me like there probably was.

But–

Did that encompass the battered child syndrome evidence?

Dane R. Gillette:

And I would submit that even if there was not, that evidence was not so inflammatory, given the overall case, that there’s a reasonable probability.

Ann Hardgrove Voris:

As to whether that, in its… on its own is a denial of due process, I don’t believe that it’s necessary to look at that because when the jury instruction was coupled with it, it completely took it out of the realm of a fair trial.

Dane R. Gillette:

–Well, the battered child syndrome evidence… there were… in addition to that part of the instruction, which Your Honor has read, and an… admonition to the jury not to consider any of that as evidence of character, of disposition, they were told that there was three, specific purposes for which other crimes, or other acts evidence was proper in this case.

That had it been excluded, or had the jury not been allowed to consider it in that way, that it would have led to a different or more favorable result for the respondent.

–Ms. Voris, can I a question that… do you know if on the appeal in the State court, there was an error asserted with regard to the instruction?

Dane R. Gillette:

One was to impeach the testimony of the wife.

Simply put, in our view, the Ninth Circuit erred in this case.

I know the evidence question was preserved, but was the instruction error preserved?

Dane R. Gillette:

The wife testified that she did it.

The defendant was… the respondent was not denied a fundamentally fair trial.

Ann Hardgrove Voris:

The instruction error was preserved.

Did that evidence, referred to in the instruction, include the battered child syndrome evidence?

Would you allow us to substitute the word prejudicial for inflammatory?

Ann Hardgrove Voris:

The court of appeal did not discuss it at all.

Dane R. Gillette:

To the extent that it encompassed the prior injuries, I would suspect that it did.

I have no objection, Your Honor.

Ann Hardgrove Voris:

And a petition for rehearing was filed, and the rehearing was denied.

Dane R. Gillette:

Because one of the bases that the–

Well, I mean, would that accord with your theory?

But it was… I say it was raised, even though not discussed in the–

Is to establish the battered child syndrome.

Dane R. Gillette:

We use inflammatory based on language in this Court’s decision in Moore v. Illinois that admission of evidence which did not violate State law, did not violate due process.

Ann Hardgrove Voris:

Yes.

Dane R. Gillette:

–Correct, Your Honor.

Well, this is gruesome evidence, usually–

–This was in the Court of Appeals of California?

And yet, the jury was told that it could be used to determine whether the defendant also committed the crime charged.

Dane R. Gillette:

That it was not irrelevant–

Ann Hardgrove Voris:

That’s correct.

And that does not seem to track what you say was the use, the relevance of the evidence.

–Here the question is super-relevancy, which makes it more probative… so probative that the rest of the trial is obscured, isn’t it?

I would submit to the Court that the conviction of Mark McGuire was based on unlawful evidence and was coupled with a prejudicial instruction, which denied him due process.

Dane R. Gillette:

Well, I agree that this instruction was not as clearly worded as perhaps it could have been.

–That would ultimately be the determination.

Thank you.