Evidence — hearsay

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United States Court of Appeals For the Seventh Circuit

Criminal

Evidence — hearsay

Even though the judge erred in admitting a hearsay statement, that error did not compel the defendant to testify and thus, violate his right to remain silent.

“As we noted in Paladino, ‘there is no compulsion in such a case, since the defendant has the option of refusing to testify and instead, if he is convicted, of obtaining appellate correction of the erroneous evidentiary ruling and with it a new trial.’ 401 F.3d at 477. We acknowledged that ‘this rule puts the defendant to a hard tactical choice,’ but we were concerned that ‘the alternative would be to give him two bites at the apple: testify, and try to win an acquittal; if that fails, appeal and get a new trial on the basis of the judge’s ruling.’ Id.; see also Wilson, 307 F.3d at 599–600 (rejecting defendant’s argument that such a choice impermissibly puts defendant ‘on the horns of a dilemma’). We see no reason to jettison that logic. Cf. McGautha v. California, 402 U.S. 183, 217 (1971) (concluding that ‘the policies of the privilege against compelled self-incrimination are not offended when a defendant in a capital case yields to the pressure to testify on the issue of punishment at the risk of damaging his case on guilt’). As in Luce and Paladino, the district court’s decision here left the defendant with a difficult choice, but a choice nonetheless. Caira’s decision was voluntary, strategic and fully informed—that is, it was the antithesis of compulsory. Had the jury believed him, he might be a free man today. But it did not. We are satisfied that Caira’s decision to testify was based on much more than the district court’s evidentiary ruling. That is not unusual: ‘an accused’s decision whether to testify “seldom turns on the resolution of one factor[.]”’ Luce, 469 U.S. at 42 (quoting New Jersey v. Portash, 440 U.S. 450, 467 (1979) (Blackmun, J., dissenting)).”

Affirmed.

12-2631 U.S. v. Caira

Appeal from the United States District Court for the Northern District of Illinois, Conlon, J., Wood, J.