02-1896 Edmunds v. Deppisch

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“The validity of the inferences drawn from demeanor evidence in these settings has been questioned. As Olin Guy Wellborn III, “Demeanor,” 76 Cornell L. Rev. 1075 (1991), bluntly puts it, summarizing empirical studies: ‘According to the empirical evidence, ordinary people cannot make effective use of demeanor in deciding whether to believe a witness.’ Yet it would be an unreasonable curtailment of a criminal defendant’s constitutional right to put on a defense for a judge to forbid the defendant’s lawyer to draw attention to aspects of demeanor that the lawyer thought undermined an adverse witness’s testimony. … The demeanor evidence at issue in this case, however, is of a different character. It presupposes a benchmark consisting of ‘normal’ behavior in the face of a shocking incident. Is it true that a ‘normal’ (and innocent) father in the situation of Natalie’s father would have strode unhesitatingly into Natalie’s hospital room? Would not have kept his hands in his pocket? Would have walked at an abnormal pace in the parking lot? Would have had panic in his voice yet would have been neither nervous nor fidgety? Maybe so; but these propositions, and the others necessary to show that one or both parents manifested lack of grief and consciousness of guilt, are not so obvious that a judge who like Olin Wellborn thought them devoid of probative value could be thought unreasonable, though again we cannot find a case on the point, let alone a U.S. Supreme Court case-which cannot however help Edmunds.”

“We are dealing with a type of evidence that, so far as anyone connected with the present proceedings seems to know, is of unknown probative value, yet likely to be damaging, as much to a defendant as to a prosecution witness. In these circumstances the judge did not exceed the bounds of reason when he said that ‘absent someone who has the expertise to interpret reactions, I don’t think the observations have any probative value.'”

Affirmed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Adelman, J., Posner, J.