three defendants charged with felony-murder, one of whom delayed the trial five days because of severe emotional outbursts
How later courts described this case
- three defendants charged with felony-murder, one of whom delayed the trial five days because of severe emotional outbursts
- “In forming an expert opinion it may be necessary to rely upon information—hearsay though it be.... If information ... is not so liable to be untrustworthy as to require the court to rule that his opimon is unworthy of consideration by the jury[,] ... it was not error to permit [the expert] to state what it was.”
- lapse of 13 months between illegal event and witness' testimony causes attenuation
Written by the judges who cited it.
The opinion
BURGER, Circuit Judge,
(concurring) :
I concur fully in Judge Fahy’s opinion, but it seems to me note should be taken of what I consider a misreading of my opinion in Smith and Bowden v. United States, 117 U.S.App.D.C. 1 , 324 F.2d 879 (1963). The dissent seems to view each fact and factor recited in that opinion as critical and decisive to the holding.
*319 Of course, that is not so. For example, it was never intended in Smith-Bow-den to suggest that the time factor for the interaction of “will, perception, memory and volition” was significant. This interaction in one case may occur in 10 seconds or 10 minutes; in another it may be 10 months, depending upon myriad factors not relevant to the decision to testify. The critical aspect of Smith-Bowden is that live witnesses are not “suppressed”, as inanimate objects may be. When an eyewitness is willing to give testimony, under oath and subject to all the rigors of cross-examination and penalties of perjury, he must be heard. How he came to be in court is a matter which goes only to the weight, not the admissibility, of his testimony.