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Tuesday

Elizabeth Smart to testify in Federal Court Thursday 10-1-2009 at 9:00 AM, Robert Paisola Reports

Video Courtesy of KSL.com



Western Capital SALT LAKE CITY -- A federal judge will allow "lay" witnesses, including Elizabeth Smart, to testify at the upcoming competency hearing for Brian David Mitchell. This will be the first time Elizabeth Smart will take the stand against Mitchel...l, one of two people accused of kidnapping her more than seven years ago. Judge Dale Kimball denied a motion by Mitchell's defense in which attorneys argued Smart's testimony and those of others were not relevant to determining whether or not Mitchell was competent to stand trial. In his ruling, Kimball said Smart's testimony will give a full picture about Mitchell's day-to-day interactions and whether he was preoccupied with religion. He said Mitchell himself has made their testimony relevant because of his refusal to cooperate in "any psychological evaluations or diagnostic tests." Elizabeth Smart's father, Ed Smart, told KSL he wasn't surprised by the ruling. "What can a professional bring to the table when somebody is not cooperating?" Smart said. He said the judge's ruling was expected and his daughter had been preparing to testify against Brian David Mitchell. He said it will be interesting to find out if Mitchell will disrupt the court with his singing again, or stay quiet so he can stay in the courtroom during Elizabeth Smart's testimony. Federal prosecutors said Elizabeth Smart will testify Mitchell was driven by sex, not religion. The judge also said Smart will be giving mostly facts and federal prosecutors will have an expert witness for opinions on a mental diagnosis. On Friday, Elizabeth's father said her experiences with Mitchell could build a strong case that Mitchell is competent to stand trial on federal kidnapping charges. "Elizabeth can certainly provide what she dealt with for nine months, how he manipulated the system, how he got what he wanted, all under the guise of religion," said Ed Smart. Mitchell's attorneys filed a motion to preclude lay witnesses from testifying at Mitchell's competency hearing. At a hearing on Friday, they argued that Smart could talk about her experiences with Mitchell but could not give opinions about his state of mind. Ed Smart expects, ultimately, Mitchell will be ruled competent to stand trial. That would contradict a finding in state court on kidnapping charges. But federal prosecutors have long argued different rules apply in the federal system. Mitchell was found incompetent to stand trial on state charges. This is his first federal competency hearing. Elizabeth Smart will take the stand on Oct. 1, to accommodate her leaving for an LDS mission to Paris. Federal prosecutors are not commenting on the ruling, and defense attorneys did not return our calls.

__________________________________________________________________________

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

BRIAN DAVID MITCHELL, et al.,

Defendants.

MEMORANDUM DECISION

& ORDER

Case No. 2:08CR125DAK

This matter is before the court on a portion of Defendant Brian David Mitchell’s Motion

to Preclude the Introduction of All Lay Witness Testimony. The motion seeks to preclude the

introduction of testimony by all lay witnesses including, but not limited to, staff members of the

Utah State Hospital, family, friends, acquaintances, coworkers, and ecclesiastical leaders of

Defendant at the hearing to determine Defendant’s competency to stand trial. Because of

scheduling conflicts, the parties agreed to brief and argue the portion of this motion dealing with

the testimony of the victim, Ms. Elizabeth Smart, prior to addressing the other witness testimony

at issue in the motion. Defendant retains the right to file a reply memoranda in support of its

motion with respect to the other proposed lay witness testimony.

On September 25, 2009, the court held a hearing on the portion of the motion pertaining

to Ms. Smart. At the hearing, Plaintiff was represented by David F. Backman and Richard N.

Lambert, and Defendant was represented by Robert L. Steele, Parker Douglas, and Audrey K.

James. The court took the motion under advisement. Having carefully considered the parties’

memoranda submitted prior to the hearing and their arguments at the hearing, as well as the law

and facts relevant to the motion, the court enters the following Memorandum Decision and Order

with respect to the portion of Defendant’s motion pertaining to Ms. Smart.

BACKGROUND

In preparation for the upcoming competency hearing, the United States provided

Defendant with a preliminary witness list. The list identified 39 lay witnesses. The anticipated

scope of the lay witness testimony is observations of and interactions with Mr. Mitchell. The

United States also provided Defendant with reports detailing the contents of lay witness

interviews with government officials. The report of the psychiatric examination conducted by

the United States’ expert, Dr. Michael Welner, incorporates information from many of these

witness interviews, including an interview with Ms. Smart. Many of these interviews were

conducted after other experts’ prepared their competency evaluations of Defendant.

Through the briefing of this motion, the United States has represented that it intends to

call Ms. Smart at the competency hearing to testify as to facts and opinions relating to:

Defendant’s lack of religious focus; how Defendant’s conduct was inconsistent with his use of

religious terminology and references to himself as a prophet; Defendant’s manipulation of others;

Defendant’s ability to lie to make his conduct appear to conform with societal norms when it was

to his advantage; and how Defendant has concealed, denied, and rationalized his conduct.

DISCUSSION

I. Legal Standard for Competency Determination

To determine the relevance and admissibility of Ms. Smart’s proposed testimony, it is

necessary to consider the issue in the context of the legal standards applicable to a competency

2

hearing. “[T]he Constitution does not permit trial of an individual who lacks ‘mental

competency.’”

Indiana v. Edwards
, 128 S. Ct. 2379, 2383 (2008). In Dusky v. United States

,

362 U.S. 402 (1960), the Supreme Court defined the legal standard for assessing competency to

stand trial as including: “(1)‘whether’ the defendant has ‘a rational as well as factual

understanding of the proceedings against him’ and (2) whether the defendant ‘has sufficient

present ability to consult with his lawyer with a reasonable degree of rational understanding.”

Edwards

, 128 S. Ct. at 2383 (quoting Dusky

, 362 U.S. at 402). Unlike the insanity defense

which concerns the defendant’s mental state at the time of the offense, the issue of competency to

stand trial focuses on the defendant’s current mental state.

See United States v. Gold

, 790 F.2d

235, 238 (2d Cir. 1986).

II. Relevance and Admissibility of Testimony

Defendant’s motion to exclude lay witness testimony from the competency hearing states

that it is based on relevance, danger of unfair prejudice, considerations of delay, undue waste of

time, and needless presentation of cumulative evidence pursuant to Rule 401 and 403 of the

Federal Rules of Evidence. Rule 401 defines relevant evident as that evidence “having any

tendency to make the existence of any fact that is of consequence . . . more probable or less

probable than it would be without the evidence. Fed. R. Evid. 401. Rule 403, however, allows

relevant evidence to be excluded “if its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, . . . or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence.” Fed. R. Evid. 403.

Defendant’s counsel appeared to back away from these challenges to Ms. Smart’s

testimony at the hearing and focused mainly on whether she could provide opinion testimony

3

under Federal Rule of Evidence 701. Nonetheless, the court will address all of the arguments

presented in Defendant’s motion because it is unclear from the oral argument whether Defendant

was conceding relevance and admissibility or merely relying on the arguments in the briefing for

those challenges.

A. Rule 403 – Relevance

Defendant argues that Ms. Smart’s lay observations of Defendant will not help the court

in trying to answer the competency question. Several courts, however, have allowed lay witness

testimony in determining competency: “the Court may rely on, in addition to expert testimony,

lay witness testimony concerning the [defendant’s] rational behavior, and cross examination of

[defendant’s] expert.”

Bundy v. Dugger

, 675 F. Supp. 622, 634 (M.D. Fla. 1987).

In this case, Defendant has made lay witness testimony relevant by refusing to submit to

any psychological evaluations or diagnostic tests. Dr. Golding, who prepared a report for the

state proceedings, specifically recognized that Defendant’s refusal to cooperate lessens the

reliability of the expert opinions. It is also the likely cause of conflicting expert opinions as to

Defendant’s competency. In

State v. Robertson,

the court noted that both experts testified that

“patient cooperation was very important in diagnosing competency and that without cooperation

any test result was questionable.” 932 P.2d 1219, 1224 (Utah 1997). Defendant’s refusal to

cooperate has made fact evidence from collateral sources necessary to a determination of his

competency.

Defendant attacks the relevance of testimony that is based on events that occurred many

years ago to a determination of Defendant’s current mental state. In evaluating the competency

issue, Defendant asserts that the court should not be sidetracked by testimony of Mr. Mitchell’s

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life and the specifics of his alleged crime. But all of the expert reports give Defendant’s history

in varying degrees of detail in order to diagnose his current mental state. Thus, even though

Defendant attacks the utility of lay testimony, such as Ms. Smart’s, which is based on

interactions that occurred many years ago, it is well-established that evidence of Defendant’s

prior conduct can give the court a better understanding of Defendant’s current condition. In

addition, the United States has presented persuasive arguments that certain aspects of the crime

itself can be relevant to the competency determination.

Moreover, the United States maintains that Defendant’s mental condition has not varied

throughout the years. The United States should have an opportunity to put on enough evidence

to establish that fact. And, if that fact can be established, conduct from many years ago could be

considered as probative as evidence of Defendant’s present conduct.

Defendant relies on a Sixth Circuit case in the insanity context which states that “when a

lay witness’ direct knowledge of the defendant is brief and superficial and far removed in time

from the commission of the crime or the trial, the testimony usually should not be admitted.”

United States v. Smith

, 437 F.2d 538, 541 (6th Cir. 1970). In Smith

, the lay witness testimony

was offered by a commissioner who interacted with the defendant during a preliminary hearing

and an FBI agent who listened to the defendant’s conversation during a ride to the police station.

Id.

In stark contrast with Smith

, Ms. Smart’s proposed testimony consists of close interactions

over a nine-month period and cannot be characterized as superficial.

The United States contends that lay witness testimony is especially relevant in a case such

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as the present case where a defendant may be malingering or manipulating the system.

1

See, e.g.,

United States v. Birdsell

, 775 F.2d 645, 650-51 (5th Cir. 1985); United States v. Gigante

, 925 F.

Supp. 967, 969-77 (E.D.N.Y. 1996);

State v. Robertson

, 932 P.2d 1219, 1224 (Utah 1997).

These cases recognize that lay witnesses can provide valuable evidence in situations involving

malingering because the evidence provided by lay witnesses, who have more lengthy interactions

with the defendant in question, is often not the type of evidence that is available to reviewing

experts during their limited periods of observation.

Defendant claims that these cases are distinguishable from the instant case. Defendant

argues that unlike these cases, Ms. Smart will not be providing any new evidence because all of

the experts had access to transcripts of her interviews. But, the experts in this case, faced with a

defendant who would not participate, have all relied on collateral sources to varying degrees,

including Ms. Smart’s testimony. It will be valuable, as will be discussed more below, for the

court to assess whether the experts have properly characterized and used her testimony in their

analyses.

Moreover, the import of these cases is that lay witnesses often have valuable evidence

because of the length of time they spend with the defendant. “It appears imminently reasonable

that the district court would rely on the observations of those witnesses in long-term daily contact

1

Defendant asserts that evidence cannot be “especially” relevant, it is relevant or it is

not. While Defendant chooses to attack the use of “especially,” the court finds this attack largely

one of semantics. The United States was not only responding to an attack of the evidence’s

relevance but one under Rule 403 as well. Rule 403, which focuses on the probative value of

relevant evidence, makes the court determine whether certain evidence is more probative than

prejudicial. When weighing such evidence under Rule 403, some evidence will be especially

probative. The court finds no basis for attacking the United States’ characterization of especially

probative evidence as especially relevant to the issues before the court.

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with the patient rather than conclusions based on a relatively brief period of examination.”

Birdsell

, 775 F.2d at 650-51. Ms. Smart can provide testimony as to Defendant’s conduct over

the course of a nine-month period. That length of time is far more intensive that any of the

expert witnesses in this case.

In addition, the cases recognize that there can be a stark difference between the conduct

of a defendant in a day-to-day situation where there is little reason to believe one is being

evaluated and a formal interview being conducted for the sole purpose of evaluating the

defendant’s behavior. In

Robertson

, the court noted that the defendant “showed a markedly

different speaking ability, depending upon whether he was being formally observed or merely

dealing with staff.” 932 P.2d at 1224. Thus, the court finds that Ms. Smart’s proposed testimony

is relevant to whether Defendant acted different on a day-today basis than he did in controlled

interview settings.

The United States also argues that a key issue in determining competency will be whether

Defendant is so preoccupied with his religious beliefs that he cannot make competent decisions.

Given Defendant’s refusal to participate fully in evaluations and his limited time in interviews

with the psychiatrists and psychologists, lay witness testimony is particularly relevant on this

issue. Ms. Smart can provide relevant testimony that will give the court a full picture of

Defendant’s day-to-day interactions her and whether he was preoccupied with religion. The

government represents that much of the proposed testimony from Ms. Smart relates to whether

Defendant was, in fact, preoccupied with his religious beliefs.

The court concludes that Ms. Smart’s proposed testimony is relevant to the issues

involved in the court’s determination of competency. Accordingly, the court finds no basis for

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concluding that Ms. Smart’s proposed testimony should be excluded under Rule 401 standards.

B. FRE 403 – Probative Value versus Potential Prejudice

After making the determination that Ms. Smart’s proposed testimony is relevant to the

issues involved in determining competency, the court must then determine under Rule 403

whether the value of such testimony is outweighed “by the danger of unfair prejudice . . . or by

considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Fed. R. Evid. 403.

Defendant first asserts that Ms. Smart’s observations relevant to Defendant’s existing

mental state have been incorporated into Dr. Welner’s comprehensive report and live testimony

as to those same undisputed facts is a waste of court time and a needless presentation of

cumulative evidence. Dr. Welner’s report outlines in detail the relevance of her testimony to

Defendant’s capacity and ability to understand the charges against him, and his ability to consult

with his attorneys and aid in his defense. The United States points out, however, that while

Defendant argues that her testimony should be excluded as cumulative because Dr. Welner’s

report summarizes the information, Defendant seeks in another motion before the court to

exclude Dr. Welner as a witness because his report does not fairly describe the information from

lay witnesses.

Live testimony developed through traditional direct and cross examination would

overcome any concerns about how Dr. Welner characterizes the factual evidence. In addition, to

the extent that Defendant questions the veracity of the testimony, given that it is based on events

from many years ago, live testimony will allow the court to hear from the witness firsthand to

determine credibility and the weight to properly accord such evidence. While acknowledging at

8

the hearing that Ms. Smart’s testimony has remained consistent in interviews spanning several

years, Defendant also appeared to question whether the testimony was fully consistent. And in

his reply memoranda, Defendant states “to the extent that her recollection of events has changed

in the intervening time.” Faced with such remarks, the court cannot conclude that her live

testimony is a waste of time or the needless presentation of cumulative evidence. Moreover,

Defendant’s claims that the evidence is undisputed are made when it is advantageous to his

arguments regarding cumulative evidence, but it is not consistent with many of his other

arguments throughout the brief and in other motions. The court, therefore, finds significant value

in being able to hear the underlying factual testimony so the court can evaluate how accurately

that testimony is characterized and used in the experts’ evaluations.

The defense’s strategy of appearing not to dispute the testimony not only appears less

than candid but it could raise issues later in the proceedings. If the court allows live testimony

and Defendant is given a full opportunity to cross examine such testimony, there can be no

question regarding the vetting of such evidence. Moreover, the general rule is that “the

prosecution is entitled to prove its case free from any defendant’s option to stipulate the evidence

away.”

Old Chief v. United States,

519 U.S. 172, 189 (1997). Parties are traditionally allowed to

present their cases in the best manner they see fit. The court will not interfere with a party’s

strategy unless the court is assured that it presents prejudicial concerns. The court finds no such

concerns with the United States’ strategy to present live testimony. The United States

represented at the hearing that it intends to narrow down the witness list and to focus only on

issues pertinent in the competency context. If the evidence presented at the hearing becomes

cumulative or irrelevant to the competency decision, the court can limit the testimony at that

9

time. The court finds no basis at this time for restraining the Untied States’ strategy for

presenting its case.

Defendant also questions the probative value of lay witness testimony because the Tenth

Circuit has recognized that it may be “very difficult” for “untrained people” to recognize when

someone is suffering from a paranoid delusional system. “[A] defendant suffering from this

illness may outwardly act logically and consistently but nonetheless be unable to make decisions

on the basis of a realistic evaluation of his own best interests.”

Cook v. Lafferty

, 949 F.2d 1546,

1555 (10

th

Cir. 1991). Other courts, however, have concluded that “objections to such lay

witness testimony relate more to weight than to admissibility.”

People v. Medina

, 799 P.2d

1282, 1292-93 (Cal. 1990). Courts have recognized that

lay witnesses may testify upon observed symptoms of mental

disease, because mental illness is characterized by departures from

normal conduct. Normal conduct and abnormal conduct are

matters of common knowledge, and so lay persons may conclude

from observation that certain observed conduct is abnormal. Such

witnesses may testify only upon the basis of facts known to them.

They may testify as to their own observations and may then express

an opinion based upon those observations. Of course the testimony

of a lay witness with training in this or related fields may have

more value than the testimony of a witness with no such training.

Naples v. United States

, 344 F.2d 508, 515 (D.C. Cir. 1964).

In

Medina

, the defendant contended that the court erred in permitting the prosecutor to

elicit an opinion for a lay witness regarding the defendant’s mental state. 799 P.2d at 1292. The

lay witness was a deputy who had a conversation with the defendant at the county jail following

the defendant’s arrest.

Id.

The conversation concerned the defendant’s housing situation and his

need for protective custody.

Id.

The court found no error in the district court allowing the

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deputy to give lay opinion testimony as to whether the defendant appeared to understand their

conversation.

Id

. The court found the challenged testimony was reasonably relevant to the

question of whether the defendant was presently able to communicate with his counsel.

Id.

at

1293.

The court concludes that Defendant’s concerns regarding Ms. Smart’s testimony goes

more to the weight afforded the testimony, not its admissibility. “The finder of fact in a hearing

as to a defendant’s competency to stand trial is generally the sole judge of the credibility of

witnesses, and the weight to be given their testimony and other evidence. It is for the finder of

fact to resolve conflicts in the testimony of witnesses.” 21 Am. Jur. 2d

Criminal Law

§ 103

(2009).

Defendant also argues that lay witnesses, such as Ms. Smart, should not provide live

testimony at the competency hearing because it is the expert witness’s job to sift through the raw

data and glean the important facts to the legal framework for determining competency.

Defendant states that neither counsel nor the court is professionally equipped through education

or experience to take raw facts from lay witnesses, determine the significance of those facts

within the mental health context, and apply the relevant facts to the question of Defendant’s

mental status. Defendant cites to no authority for this proposition and the argument is squarely at

odds with the court’s role in determining competency. The court acts as a finder of fact and

determines the weight to be given the testimony and other evidence.

See

21 Am. Jur. 2d

Criminal Law

§ 103 (2009). The court’s role in this regard includes expert testimony as well.

The court also has several procedural mechanisms at its disposal with respect to making the

ultimate determination regarding competency. In

Gigante

, the court made findings of fact

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regarding lay witness testimony and ordered the experts to accept the findings as true and

reassess the defendant’s competency. 925 F. Supp. at 969-77. The court, therefore, finds no

merit in Defendant’s argument that live testimony from lay witnesses should be precluded based

on concerns regarding the court’s ability to apply such facts to the ultimate determination of

competency.

Defendant next contends that allowing Ms. Smart’s testimony on issues only tangentially

related to Defendant’s present competency could taint a future jury pool. In essence, Defendant

contends that the probative value of her testimony does not outweigh the potential prejudice of

influencing the jury pool. The case has received substantial media coverage, and the testimony

must be carefully circumscribed to address competency without diverging into sensationalistic

details or creating a trial within a trial on extraneous issues. Defendant asserts that the court’s

evaluation of the competency issue should not be sidetracked by extended testimony over the

facts of Defendant’s life and the specifics of the alleged crime.

The United States responds that a claim that pretrial publicity violates a defendant’s right

to a fair trial is usually only raised after the pre-trial publicity has occurred or it becomes

apparent during voir dire that publicity has tainted the jury pool.

See Gardner v. Galetka

, 568

F.3d 862, 888 (10

th

Cir. 2009). The Tenth Circuit has recognized that “‘pre-trial publicity in

topical criminal cases is inevitable.’”

Id.

at 889 (citation omitted). The local trial of newsworthy

cases cannot become the exception rather than the rule.

Id.

Defendant does not articulate what proposed testimony he believes would taint the jury

pool. Thus any such prejudice can only be considered speculative at this point. Speculation

regarding potential prejudice is not an appropriate basis for excluding relevant evidence. The

12

court also cannot presume that prejudice will arise from conducting necessary proceedings in the

matter. Even if the court found concerns regarding prejudice warranted, the court could employ

other procedures to allay potential prejudice before it precluded relevant evidence from the

proceeding–such as sealing the proceedings. Tellingly, Defendant did not suggest alternatives to

precluding the testimony. Moreover, at any time during the hearing when the solicited testimony

appears to be seeking evidence that is more prejudicial than probative, defense counsel can object

and the court can restrict testimony on a per question basis rather than a blanket preclusion of

testimony. The court concludes that the jury pool concern is not a basis for finding all of the

proposed testimony more prejudicial than probative.

Although Defendant raises several concerns as to potential prejudice from the court

allowing Ms. Smart to testify at the competency hearing, the court finds no basis for concluding

that her testimony should be excluded on the grounds that its probative value is outweighed by

potential prejudice or considerations of undue delay, waste of time, or needless presentation of

cumulative evidence. This ruling is with respect to her ability to testify based on the general

descriptions of her proposed testimony as represented to the court by the United States.

Defendant, however, is not foreclosed from raising objections at the hearing with respect to

specific questions.

C. Rule 701

If the court allows Ms. Smart to testify, Defendant argues that her opinion testimony must

be carefully tailored.

2

Rule 701 of the Federal Rules of Evidence governs opinions from lay

2

Neither party contends that Ms. Smart is an expert witness on any issue before the

court.

13

witnesses. Rule 701 provides that lay witness testimony “in the form of opinions or inferences is

limited to those opinions or inferences which are (a) rationally based on the perception of the

witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a

fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the

scope of Rule 702.” Fed. R. Evid. 701. Defendant attacks Ms. Smart’s ability to offer opinions

under each of these limitations.

Under subsection (a), Defendant cites to

Smith

for the proposition that it is difficult for

lay testimony to be helpful as to the “lack of something.” But, unlike the lay witnesses in

Smith

,

Ms. Smart’s testimony covers a nine-month period of time and her testimony is not confined to

how “normal” Defendant appeared. The United States has represented that Ms. Smart’s

testimony will cover several subjects, such as Defendant’s lack of religious focus, his

manipulation of others, and his ability to lie to make his conduct appear to conform with societal

norms when it was to his advantage. This type of testimony is not just testifying to “a lack of

something.” In addition, the court has already discussed the helpfulness of lay witness testimony

in a case where a defendant may be malingering.

Under subsection (b), Defendant argues that he does not believe the testimony would sort

out disputes or make clear a not-so-clear narrative. Defendant contends that Ms. Smart’s

testimony has not changed significantly and all of the experts have had the opportunity of looking

at her testimony. There is, however, a dispute between the expert’s in this case as to Defendant’s

competency. And, each of the experts use Ms. Smart’s to varying degrees in forming their

opinions. There are also questions regarding the expert’s use of Ms. Smart’s testimony. Because

of the dispute between the experts and the dispute regarding their use of her testimony, the court

14

finds that her live testimony would be helpful to the determination in issue.

Under subsection (c), Defendant argues that Ms. Smart cannot testify as to opinions that

are based on specialized knowledge or too close to the ultimate decision of competency. Rule

701 precludes lay opinions that are based on scientific, technical, or specialized knowledge. But

none of Ms. Smart’s proposed testimony suggests that she will be opining on anything other than

her lay observations. And, the United States represented at the hearing that Ms. Smart will

present mainly facts, with limited opinion testimony. Moreover, the United States has an expert

witness to opine as to mental diagnoses and other specialized matters. The court does not believe

there will be a significant issue with respect to Ms. Smart’s opinion testimony coming too close

to the ultimate issue, but, to the extent that the United States veers into this area while taking her

testimony, the matter can be dealt with during the specific questioning at the evidentiary hearing.

In conclusion, the court concludes that Ms. Smart’s proposed testimony is relevant to the

issues to be determined with respect to competency under Rule 401 and it is admissible at the

competency hearing under Rule 403. In addition, Ms. Smart can testify as to her opinions

consistent with Rule 701. Accordingly, the court denies Defendant’s Motion to Preclude the

Introduction of All Lay Witness Testimony as to the portion of the motion regarding Ms. Smart’s

testimony.

3

3

Defendant acknowledges that even though he argues against the admission of any

lay witness testimony, as the victim in this case, the court may have more latitude in allowing

Ms. Smart to testify under the Crime Victims’ Rights Act. The Crime Victims’ Rights Act states

that the victim has the right “to be reasonably heard at any public proceeding in the district court

involving release, plea, sentencing or any parole proceeding,” but it does not include typical

evidentiary hearings such as competency hearing, motions to suppress, or trial. 18 U.S.C. §

3771(a)(4). This exclusion may have been a recognition that the victim’s testimony would

usually be allowed as relevant in these types of evidentiary hearings whereas it may be excluded

from more procedural hearings. Or it may be an acknowledgment that the admission of

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CONCLUSION

Based on the above reasoning, Defendant’s Motion to Preclude the Introduction of All

Lay Witness Testimony is DENIED as to the portion of the motion regarding Ms. Smart’s

proposed testimony. Pursuant to the prior scheduling agreement between the parties, the

evidentiary hearing to take Ms. Smart’s testimony will be held Thursday, October 1, 2009, at

9:00 a.m.

DATED this 28th day of September, 2009.

DALE A. KIMBALL

United States District Judge

testimony at such hearings would be governed more appropriately by the rules of evidence. In

any event, while the Act does not grant an affirmative right to be heard at a competency hearing,

the Act’s intent is to provide a victim with appropriate access to the proceedings and it dictates

that the victim has a right to be “treated with fairness.” Because the court finds Ms. Smart’s

testimony relevant and admissible under the Federal Rules of Evidence, the court need not

determine whether a competency hearing is the type of hearing at which the CVRA would allow

a victim to testify.

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