United States District Court, D. Minnesota
PAUL A. MAGNUSON, District Judge.
This matter is before the Court on the parties' Motions in Limine. For the reasons that follow, the Government's Motions are granted in part and denied in part, Drift's Motions are denied, and the Government's Supplemental Motion is denied.
A. Government's Motions
1. Unopposed Motions
The Government first moves to bar Drift from discussing evidence of its witnesses' bad acts in the jury's presence without first resolving any admissibility issues of the evidence outside the jury's presence; to bar Drift from referencing his potential punishment in the jury's presence; and to sequester potential witnesses except for its case agent, FBI Special Agent Craig Heidenreich. Drift agrees. The Court grants the Motions.
2. Examining Jane Doe #1
The Government next moves to examine Jane Doe #1, a child witness and the alleged victim in this sexual-abuse case, in a manner suitable to her age and with leading questions necessary to develop her testimony. Drift agrees but asks that the Court direct the Government to limit leading questions so to avoid coaching her. Considering Jane Doe #1's status as a minor and as the alleged victim, the Court will "exercise reasonable control" over her examination. Fed.R.Evid. 611(a). The Government may examine her with leading questions "necessary to develop [her] testimony" if she shows "reluctance to testify." Fed.R.Evid. 611(c); United States v. Demarrias , 876 F.2d 674, 678 (8th Cir. 1989). But in doing so, the Government may not "engage in a pattern of leading questions attempting to shape [her] testimony." United States v. Butler , 56 F.3d 941, 943 (8th Cir. 1995). The Court grants the Motion to that extent.
3. Using a Child-Friendly Oath
The Government also moves the Court to use a child-friendly oath when Jane Doe #1 testifies, replacing the term "swear" with "promise" to tell the truth. Drift agrees. Before she testifies, the Court will have Jane Doe #1 give an oath to testify truthfully "in a form designed to impress that duty on [her] conscience." Fed.R.Evid. 603. The Court grants the Motion to that extent.
4. Admitting Jane Doe #1's Prior Statements
The Government further moves to admit Jane Doe #1's prior statements about the alleged incident made to Melissa Lehr, a forensic interviewer, and Nadine Luecken, her grandmother. According to the Government, the statements are not hearsay because they are consistent and would be offered to rebut any allegation that Jane Doe #1 recently changed stories or to rehabilitate her if impeached. Subject to his Motion in Limine on the forensic interview, which the Court will address below, Drift agrees but asks that only the particular consistent statements in the forensic interview, and not the whole interview, should be admitted. The Government may introduce certain of Jane Doe #1's prior statements to both Lehr and Luecken if they are "consistent with her testimony, " and are offered "to rebut an express or implied charge that [she] recently fabricated [them] or acted from a recent improper influence or motive in so testifying" or "to rehabilitate [her] credibility as a witness when attacked on another ground." Fed.R.Evid. 801(d)(1)(B); see also United States v. Espinoza , 684 F.3d 766, 781-82 (8th Cir. 2012); United States v. Hoover , 543 F.3d 448, 454 (8th Cir. 2008). The Court grants the Motion to that extent.
5. Admitting Drift's Prior Convictions
The Government also moves to admit, if Drift testifies, evidence of his 2008 felony convictions for operating under the influence and terroristic threats. Seeking to attack Drift's credibility, the Government intends to introduce only the nature, location, and date of the convictions, but not their underlying facts. Drift objects to the admission of the terroristicthreats conviction as having minimal relevance to his veracity and as posing a significant risk that the jury will find guilt based on that conviction and not on the facts of this charge.
The Court must admit evidence of a testifying criminal defendant's prior felony conviction if the evidence's "probative value" of the defendant's "character for truthfulness" "outweighs its prejudicial effect." Fed.R.Evid. 609(a)(1)(B). A prior conviction is probative of credibility because of the "common sense proposition that one who has transgressed society's norms by committing a felony is less likely ...