United States v. Shay

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2141

UNITED STATES,

Appellee,

v.

THOMAS A. SHAY,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Torruella, Chief Judge,

Boudin, Circuit Judge,

and Barbadoro,* District Judge.

Kathy B. Weinman, by Appointment of the Court, with whom Amy

Baron-Evans, and Dwyer & Collora were on brief for appellant.

Frank A. Libby, Jr., Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, and Paul V. Kelly,

Assistant United States Attorney, were on brief for appellee.

June 22, 1995

* Of the District of New Hampshire, sitting by designation.

BARBADORO, District Judge. Thomas Shay Jr. was found
BARBADORO, District Judge

guilty of conspiracy and aiding and abetting an attempt to blow

up his father's car. In proving its case, the government relied

in part on incriminating statements that Shay Jr. made to the

police, the media, and fellow inmates. The defendant responded

by arguing that his statements were unreliable and should be

disregarded. In this opinion, we determine whether the court

properly prevented the defendant from supporting his argument by

calling a psychiatrist to testify that he suffered from a mental

disorder that causes its victims to make false and grandiose

statements without regard to the consequences. We also address

various other issues that the defendant raises on appeal.

I. BACKGROUND
I. BACKGROUND

A. The Explosion
A. The Explosion

Two officers from the Boston Police Department Bomb

Squad were sent to the home of Shay Jr.'s father, Thomas Shay

Sr., after Shay Sr. informed the police that he had discovered a

suspicious black box in his driveway that had become dislodged

from the undercarriage of his car. While the officers were

examining the box, it exploded, killing Officer Jeremiah Hurley

and seriously wounding Officer Frances Foley. Agents from the

Bureau of Alcohol, Tobacco and Firearms, working with the Boston

Police Department, later determined that the box contained two to

three sticks of repackaged dynamite, a remote control device and

other components necessary to detonate the bomb from a remote

location.

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B. The Government's Case
B. The Government's Case

The government's trial theory was that Shay Jr.

conspired with a friend, Alfred Trenkler, to kill Shay Jr.'s

father by blowing up his car. In proving its case, the

government relied primarily on several incriminating statements

that Shay Jr. made after the bombing. We describe his most

damaging statements to illustrate their importance to the

government's case.

1. Shortly after the bombing, Shay Jr. told a police

officer, "he was sorry about it and wished he could turn back the

hands of time and make it not have happened." The government

argued at trial that this statement was evidence of Shay Jr.'s

guilty conscience.

2. Shay Jr. told reporters covering the bombing that

he had been questioned about whether his father was capable of

constructing a remote control device. Because the police claimed

that they did not question Shay Jr. about the bomb's remote

control detonator until after Shay Jr. made this statement, the

government argued that the statement demonstrated that Shay Jr.

had special knowledge about the bomb that only a co-conspirator

would possess.

3. Shay Jr. gave an interview to a television reporter

in which he made several statements concerning the bombing.

Although he claimed in the interview that he was only guilty of

knowing who had built the bomb after-the-fact, he admitted that

Trenkler had told him before the bombing that he was planning a

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"surprise" for Shay Jr., which turned out to be the bomb. Shay

Jr. also acknowledged during the interview that he had purchased

a toggle switch and an "AA" battery holder that Trenkler had used

in building the bomb.

4. Shay Jr. allegedly told a fellow cellmate, "I'm

boom, boom. Don't you know me? You have to know me. I'm the

one who killed the Boston cop." According to the cellmate, Shay

Jr. also told him that he and Trenkler had built the bomb

together and attached it to the undercarriage of his father's

car.

The government supported Shay Jr.'s incriminating

statements about the bombing with other evidence that: (a)

Trenkler and Shay Jr. were friends who were in sporadic contact

from 1988 through the fall of 1991; (b) Trenkler had the skill to

construct the bomb; (c) gray duct tape consistent with that in

the bomb was discovered in a search of Trenkler's parents'

residence; (d) ten days prior to the explosion, someone purchased

a toggle switch and "AA" battery holder of the same type used in

the bomb from a Radio Shack store located directly across the

street from where Trenkler was working; (e) Radio Shack's records

listed the purchaser's name as "SAHY," and his identification

number corresponding to the last four digits of his telephone

number as "3780," which was similar to the last four digits of

Shay Sr.'s home telephone number, "7380"; (f) Shay Jr. was

strongly motivated to kill his father because they had a

difficult "love-hate" relationship, and Shay Jr. believed that he

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would collect a substantial inheritance if his father were

killed; and (g) Shay Jr. demonstrated consciousness of guilt by

fleeing the jurisdiction after he was released on bail following

his arrest on an unrelated matter.

C. The Defendant's Case
C. The Defendant's Case

Shay Jr. responded to the government's case by arguing

that his statements about the bombing were unreliable, that the

rest of the evidence failed to establish his guilt, and that

other evidence suggested that Shay Sr. may have built the bomb.

His attack on the statements comprised three parts. First, in an

effort to demonstrate that he made the statements in order to

fulfill a compulsive need for attention even though they were

false, the defense elicited testimony from several witnesses that

Shay Jr. regularly told the same grandiose stories, often

changing significant details each time he told them; repeatedly

sought out the media to talk about the bombing even though it was

not in his interest to do so; made comments concerning the police

investigation which were not confirmed by the police; and

expressed abnormal interest in the media attention he received as

a result of his statements.

Second, the defense attempted to show that Shay Jr.'s

many statements about the bombing were conflicting and

demonstrably wrong about important details that would have been

known by a co-conspirator. In other words, as defense counsel

stated in her summation, "[Shay Jr.] may be trying to talk about

this crime, but he doesn't make it. He can't pull it off. He

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doesn't have the facts right." To illustrate this point, the

defense pointed to Shay Jr.'s repeated and incorrect statements

that the bomb contained C-4 explosive (or plastique) and

batteries purchased from Radio Shack.

Finally, the defense attempted to call Dr. Robert

Phillips, a psychiatrist, who was prepared to testify that Shay

Jr. suffered from a recognized mental disorder known as

"pseudologia fantastica."1 According to Dr. Phillips, this

1 Pseudologia fantastica is categorized as a factitious disorder
in the Diagnostic and Statistical Manual of Mental Disorders (3d
ed. 1987) ["DSMIII-R"] and is sometimes referred to as
Munchausen's Disease named after Baron von Munchausen who was a
German storyteller who wandered the countryside spinning tall
tales.

Pseudologia fantastica is a variant of lying, often
characterized as an extreme form of pathological lying. R.
Sharrock and M. Cresswell, Pseudologia Fantastica: A Case Study

of a Man Charged with Murder, 29 Med. Sci. Law. 323, 323 (1989).

Unlike "con-men" whose lying is for the purpose of some material
gain, victims of this condition present falsifications that are
"'disproportionate to any discernable end.'" Id. Pseudologues

represent fantasies as real occurrences. "These fantasies often
involve dramatic, grandiose, and exaggerated events consciously
acknowledged as false by the patient, yet presented as truth."
Charles W. Dithrich, Pseudologia Fantastica, Dissociation, and

Potential Space, in Child Treatment, 72 Int. J. Psycho. Anal.

657, 657 (1991). "External reality is negated by an enthralling,
seductive and exciting inner world in which anything is
possible." Id. at 658. The gain for the pseudologue could be ego

enhancement or the attention received as a result of the story.
Sharrock and Cresswell, supra at 323. Many lie for no apparent

reason, in circumstances where they have nothing to gain from not
telling the truth. Anne Vaughan, "Believe me - I cannot tell the
truth," The Independent, July 9, 1991, at 13.

Pseudologues are also often highly compliant and suggestible
to misleading information. Sharrock and Cresswell, supra at 323.

"'They are often histrionic or suggestible types who thrive on
attention and lie for a quick high...and don't worry about the
consequences.'" Vaughan, supra. Furthermore, even when they are

confronted with their lies, many pseudologues are unable to
control their lies. Id.

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condition caused Shay Jr. to

spin out webs of lies which are
ordinarily self-aggrandizing and serve to
place him in the center of attention.
Put otherwise, coping for Mr. Shay, given
his personality structure, entails
seeking attention, tailoring his words to
the audience, creating fantasies in which
he is the central figure, and through
which he attempts to enlist his audience
. . . . Mr. Shay's stories are an
attempt to draw others into his fantasy
world in order to meet the interpersonal
needs which were not met during his
childhood.

The district court prevented the defense from offering

this testimony, concluding that the evidence should be excluded

pursuant to Fed. R. Evid. 702 primarily because the jury was

capable of determining the reliability of Shay Jr.'s statements

without the testimony.2

As noted by one doctor, "[i]t is quite common for people
suffering from pseudologia fantastica to turn up at a police
station confessing to a crime they did not commit. Usually these
have been high-profile, well-publicized cases such as bank
robberies. 'This group of pseudologues loves the excitement and
power that helping the police brings. It makes them feel
important and they relish all the attention and fame that they
receive from the case...'." Id.

2 The court offered the following explanation:

With respect to the psychiatric expert
offered by the defendant, as I understand
that, it is offered to show that the
defendant has an uncontrollable need to
draw attention to himself and will say
anything to satisfy his need, and in
particular, it is offered to explain away
his inculpatory statement. Under 702
expert evidence is admissible to assist
the jury to understand evidence or to
determine a fact in issue. The record in
this case is replete with the defendant's
contradictory statements, indeed, his

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II. DISCUSSION
II. DISCUSSION

A. Exclusion of Expert Testimony Concerning the
A. Exclusion of Expert Testimony Concerning the

Reliability of Shay Jr.'s Statements
Reliability of Shay Jr.'s Statements

In preventing Dr. Phillips from testifying, the

district court relied on its discretionary authority pursuant to

Fed. R. Evid. 702 to exclude expert testimony that will not

"assist the trier of fact to understand the evidence or to

determine a fact in issue." Shay Jr. contends that the decision

was based upon an erroneous interpretation of Rule 702.3 The

fantastic ones about tanks and bombers,
and other things.

Under these circumstances, the jury
does not need expert evidence on the
issue of the defendant's credibility.
And there is, with respect to this
evidence, the additional danger that the
expert will go beyond the brief
references to -- I think it's called --
pseudologiafantastica [sic] in the areas
that are in fact inadmissible such as
diminished capacity, personality,
deficit, and so on.

The quintessential question is whether
the jury will believe what the defendant
says, and on that question, given this
record, the jury does not need any
additional expert evidence or any expert
evidence. Accordingly, I will rule out
the defendant's proffer on that issue,
and your objection is noted as is the
Government's.

3 Shay Jr. also argues that the exclusion of Dr. Phillips's
testimony violated his Sixth Amendment right to present a
complete defense. The Sixth Amendment's Compulsory Process
Clause has been interpreted to entitle a defendant to both "'the
right to the government's assistance in compelling the attendance
of favorable witnesses at trial and the right to put before a
jury evidence that might influence the determination of guilt.'"
Taylor v. Illinois, 484 U.S. 400, 408 (1988) (quoting

Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987)). Nevertheless,

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government argues that the district court did not abuse its

discretion in excluding the evidence and alternatively asserts

that the court was obligated to exclude the evidence as a matter

of law because it concerned a credibility question that was the

jury's exclusive province to resolve. We first consider the

government's argument for categorical exclusion.

1. Must expert testimony concerning credibility
1. Must expert testimony concerning credibility
questions be excluded as a matter of law?
questions be excluded as a matter of law?

In arguing that expert testimony bearing directly on

credibility questions is never admissible, the government relies

on selected quotations from decisions in other circuits. See,

e.g., Bachman v. Leapley, 953 F.2d 440, 441 (8th Cir. 1992) ("It

is the exclusive province of the jury to determine the

believability of the witness . . . [a]n expert is not permitted

to offer an opinion as to the believability or truthfulness of a

victim's story."); United States v. Benson, 941 F.2d 598, 604

(7th Cir. 1991) ("[c]redibility is not a proper subject for

expert testimony"), modified, 957 F.2d 301 (7th Cir. 1992);

United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973)

("[c]redibility, however, is for the jury - the jury is the lie

the right to present evidence is not unlimited. Chambers v.

Mississippi, 410 U.S. 284, 302 (1973). "The accused does not

have an unfettered right to offer testimony that is incompetent,
privileged, or otherwise inadmissible under standard rules of
evidence." Taylor, 484 U.S. at 410. We need not define the

outer limits of Shay Jr.'s Sixth Amendment rights in order to
decide the present case because, at least in this instance, the
Sixth Amendment offers Shay Jr. no greater protection than the
rules of evidence. See United States v. Fosher, 590 F.2d 381,

384 n.2 (1st Cir. 1979) (right to compulsory process does not
include the right to adduce properly excluded evidence).

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detector in the courtroom"), cert. denied, 416 U.S. 959 (1974).

We think the government makes too much of these decisions.

Rather than requiring the wholesale exclusion of expert testimony

concerning credibility issues, these cases stand for the more

limited proposition that an expert's opinion that another witness

is lying or telling the truth is ordinarily inadmissible pursuant

to Rule 702 because the opinion exceeds the scope of the expert's

specialized knowledge and therefore merely informs the jury that

it should reach a particular conclusion. See, e.g., Bachman,

953 F.2d at 441; Benson, 941 F.2d at 604-05; cf. Fed. R. Evid.

704 advisory committee's note (evidence can be excluded pursuant

to Rule 702 if it "would merely tell a jury what result to reach,

somewhat in the manner of oath-helpers of an earlier day"). In

the present case, the district court precluded Dr. Phillips from

testifying rather than merely limiting his testimony to matters

that were within the scope of his expertise. Thus, the decisions

the government cites do not justify the court's ruling.

The government's position is further undermined by the

rules themselves which recognize that expert testimony may be

admitted to establish a witness's character for truthfulness.

Fed. R. Evid. 402 provides that all relevant evidence is

admissible unless its exclusion is required by the Constitution,

an act of Congress, or another rule, and no constitutional

provision, law, or rule requires the automatic exclusion of

expert testimony simply because it concerns a credibility

question. See Margaret Berger, United States v. Scop: The

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Common-Law Approach to an Expert's Opinion About a Witness's

Credibility Still Does Not Work, 55 Brook. L. Rev. 558, 582-87

(1989). Moreover, Fed. R. Evid. 608(a), governing the

admissibility of opinion testimony concerning a witness's

character, contemplates that truthful or untruthful character may

be proved by expert testimony. The advisory committee's note to

Rule 608(a) references Fed. R. Evid. 405(a), which describes the

acceptable methods for proving relevant character traits. Fed.

R. Evid. 608 advisory committee's note. Rule 405's advisory

committee's note, in turn, acknowledges that expert opinion

testimony is to be included within Rule 405's scope. Fed. R.

Evid. 405(a) advisory committee's note ("If character is defined

as the kind of person one is, then account must be taken of the

varying ways of arriving at the estimate. These may range from

the opinion of the employer who has found the man honest to the

opinion of the psychiatrist based upon examination and

testing."). Thus, the Federal Rules of Evidence permit expert

testimony to be offered in appropriate circumstances to establish

a witness's truthful or untruthful character.4

The government's fall-back position is that even if

expert testimony can be used to prove a testifying witness's

4 Our decision in United States v. Kepreos, 759 F.2d 961 (1st

Cir.), cert. denied, 474 U.S. 901 (1985), is not to the contrary.

Although we noted in Kepreos that "there is no indication

whatsoever that either the draftmen or Congress had in mind
admitting evidence of broad psychological traits or clinical
states such as 'repression' or 'dependency' or the other similar
characteristics . . . ," our observation was expressly limited
to broad and undefined psychological traits that were at issue in
that case. Id. at 965.

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untruthful character, it cannot be used to attack the reliability

of a defendant's out-of-court statements because the defendant is

a declarant, not a testifying witness. This argument, too, is

unavailing. Fed. R. Evid. 806 provides that:

When a hearsay statement, or a statement
defined in Rule 801(d)(2)(C), (D) or (E),
has been admitted in evidence, the
credibility of the declarant may be
attacked, and if attacked, may be
supported, by any evidence which would
be admissible for those purposes if
declarant had testified as a witness.

Although the rule does not expressly include attempts to attack a

defendant's out-of-court statements admitted pursuant to Fed. R.

Evid. 801(d)(2)(A), the Senate Judiciary Committee's report

concerning the proposed rules states:

The committee considered it unnecessary
to include statements contained in Rule
801(d)(2)(A) and (B) - the statement by
the party-opponent himself or the
statement of which he has manifested his
adoption - because the credibility of the
party-opponent is always subject to an
attack on his credibility.

S. Rep. No. 1277, 93d Cong., 2d Sess. (1974). We agree with the

Seventh Circuit Court of Appeals that the Senate Judiciary

Committee's report correctly states the law. United States v.

Dent, 984 F.2d 1453, 1460 (7th Cir.), cert. denied, 114 S. Ct.

(1993). Thus, we reject the government's argument for

categorical exclusion and turn to the district court's reasons

for excluding the evidence.

2. Did the district court properly exclude the
2. Did the district court properly exclude the
psychiatrist's testimony pursuant to Rule 702?
psychiatrist's testimony pursuant to Rule 702?

A district court's decision to admit or exclude expert

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testimony is entitled to great deference. United States v.

Echeverri, 982 F.2d 675, 680 (1st Cir. 1993); United States v.

Hoffman, 832 F.2d 1299, 1310 (1st Cir. 1987). Thus, we will

reverse a decision on this, or any other evidentiary question,

only if: (1) the district court based the decision on an

incorrect legal standard, see United States v. Rahm, 993 F.2d

1405, 1410 (9th Cir. 1993); United States v. Pelullo, 964 F.2d

193, 198 (3d Cir. 1992), or (2) we have a "definite and firm

conviction that the court made a clear error of judgment in the

conclusion it reached based upon a weighing of the relevant

factors." United States v. Benavente G mez, 921 F.2d 378, 384

(1st Cir. 1990) (internal quotations and citations omitted).

Applying this standard, we conclude that the district court erred

in excluding Dr. Phillips's testimony pursuant to Rule 702.

a. Rule 702's Requirements
a. Rule 702's Requirements

Rule 702 consists of three distinct but related

requirements. First, a proposed expert witness must be qualified

to testify as an expert by "knowledge, skill, experience,

training, or education." Fed. R. Evid. 702; accord United States

v. Paiva, 892 F.2d 148, 160 (1st Cir. 1989) ("a witness may

qualify as an expert on any one of [Rule 702's] five listed

grounds"). Second, the expert's testimony must concern

"scientific, technical or other specialized knowledge." Fed. R.

Evid. 702; accord Daubert v. Merrell Dow Pharmaceuticals, Inc.,

113 S. Ct. 2786, 2795 (describing criteria to be considered in

determining reliability of scientific testimony). Finally, the

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testimony must "assist the trier of fact to understand the

evidence or to determine a fact in issue." Fed. R. Evid. 702;

accord Daubert, 113 S. Ct. at 2795. Since the district court did

not question Dr. Phillips's qualifications or the specialized

nature of his opinions, we focus our analysis on Rule 702's

assistance requirement.

The fundamental question that a court must answer in

determining whether a proposed expert's testimony will assist the

trier of fact is "'[w]hether the untrained layman would be

qualified to determine intelligently and to the best degree, the

particular issue without enlightenment from those having a

specialized understanding of the subject matter involved.'"

United States v. Montas, 41 F.3d 775, 783 (1st Cir. 1994)

(quoting Fed. R. Evid. 702 advisory committee's note), cert.

denied, 63 U.S.L.W. 3818 (U.S. 1995); accord United States v.

Lamattina, 889 F.2d 1191, 1194 (1st Cir. 1989); United States v.

Rivera Rodr guez, 808 F.2d 886, 888 (1st Cir. 1986). In

answering this question, the court must first determine whether

the proposed testimony is relevant and fits the facts of the

case.5 Daubert, 113 S. Ct. at 2795-96; In Re Paoli R.R. Yard

5 The concept of "fit" requires that a valid connection exist
between the expert's testimony and a disputed issue. Daubert,

113 S. Ct. at 2796. Judge Becker, who coined the term,
illustrates the concept with the following example. If a
plaintiff contends that he or she developed cancer after being
exposed to chemical X and seeks to support that contention with
expert testimony that chemical X causes cancer in animals, the
testimony will not fit the facts of the case and should be
excluded unless the plaintiff also offers reliable expert
testimony that results observed in the animal studies are
transferable to humans. In Re Paoli R.R. Yard PCB Litig., 35

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PCB Litig., 35 F.3d at 742-43. The inquiry then shifts to

whether the witness's opinions are based upon specialized skill,

training, or experience. Benson, 941 F.2d at 604; cf. Daubert,

113 S. Ct. at 2796 (relaxation of Fed. R. Evid. 602's first-hand

knowledge requirement is justified for expert testimony because

an "expert's opinion will have a reliable basis in the knowledge

and experience of his discipline"). Unless the witness's

opinions are informed by expertise, they are no more helpful than

the opinions of a lay witness. Thus, such opinions cannot be

admitted pursuant to Rule 702 and instead must comply with the

requirements of Fed. R. Evid. 701 governing the admissibility of

opinion testimony by lay witnesses. See generally United States

v. Jackman, 48 F.3d 1, 4-5 (1st Cir. 1995) (describing standard

for admissibility of opinion testimony by lay witness). This

circuit has not decided whether, after Daubert, reliable

testimony from a qualified expert may be deemed unhelpful under

Rule 702 even if these aspects of the rule's assistance

requirement are satisfied. But cf. In Re Paoli R.R. Yard PCB

Litig., 35 F.3d at 747 (noting that challenges to expert

testimony as prejudicial must be analyzed pursuant to Rule 403

rather than Rule 702). We need not resolve this question here

because, as we describe in detail below, the district court's

reasons for excluding the evidence are insufficient under any

plausible reading of Rule 702.

F.3d 717, 743 (3d Cir. 1994), cert. denied, 115 S. Ct. 1253

(1995).

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b. The District Court's Analysis
b. The District Court's Analysis

Dr. Phillips was prepared to testify that Shay Jr.

suffered from a mental disorder that caused him to make grandiose

statements similar in nature to the statements that the

government was seeking to use against him. The district court

excluded the testimony because it concluded that the testimony

would not assist the jury in light of other evidence in the

record concerning the reliability of Shay Jr.'s statements.

However, whether or not the jury had the capacity to generally

assess the reliability of these statements in light of the other

evidence in the case, it plainly was unqualified to determine

without assistance the particular issue of whether Shay Jr. may

have made false statements against his own interests because he

suffered from a mental disorder. Common understanding conforms

to the notion that a person ordinarily does not make untruthful

inculpatory statements. See Fed. R. Evid. 804(b)(3) advisory

committee's note (statements against interest are especially

reliable because "persons do not make statements which are

damaging to themselves unless satisfied for good reasons that

they are true"). Dr. Phillips would have testified that,

contrary to this common sense assumption, Shay Jr. suffered from

a recognized mental disorder that caused him to make false

statements even though they were inconsistent with his apparent

self-interest. Thus, Dr. Phillips was prepared to offer

specialized opinion testimony, grounded in his expertise as a

psychiatrist, that could have "explode[d] common myths" about

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evidence vital to the government's case. United States v. Moore,

786 F.2d 1308, 1312 (5th Cir. 1986) (citations omitted). While

the record contains other evidence that Shay Jr. told lies and

boasted to an unusual degree, this evidence, standing alone, is

much less powerful than the psychiatric testimony that Dr.

Phillips was prepared to offer. Moreover, the court did not

express any concern that Dr. Phillips was unqualified or that his

testimony was unreliable because it concerned some novel or ad

hoc syndrome. Under all of the circumstances, it was a clear

error in judgment for the district court to exclude the testimony

under any plausible interpretation of Rule 702.6

3. Is a new trial required?
3. Is a new trial required?

Although a court may not exclude expert testimony

simply because it concerns a credibility question or because non-

expert testimony was presented on the same issue, it retains

ample discretion to exclude or limit such testimony for other

reasons. Even if expert testimony is admissible pursuant to Rule

702, it may be disallowed pursuant to Fed. R. Evid. 403 if its

prejudicial, misleading, wasteful, confusing, or cumulative

nature substantially outweighs its probative value. As the

6 The district court also expressed concern that Dr. Phillips
should not testify because he might stray into the impermissible
subject of Shay Jr.'s mental capacity to commit the crime. This
concern, essentially that the testimony might have a prejudicial
effect, must be addressed pursuant to Rule 403's balancing test
rather than pursuant to Rule 702's helpfulness standard. See

Daubert, 113 S. Ct. at 2798. Applying Rule 403, we conclude that

the potential for prejudice cited by the court could have been
prevented by appropriate limitations on the scope of Dr.
Phillips's testimony. Thus, the court's concern cannot serve as
an independent basis for its decision.

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Supreme Court recently observed, "'[e]xpert evidence can be both

powerful and quite misleading because of the difficulty in

evaluating it. Because of this risk, the judge in weighing

possible prejudice against probative force under Rule 403 of the

present rules exercises more control over experts than over lay

witnesses.'" Id. at 2798 (quoting Weinstein, Rule 702 of the

Federal Rules of Evidence is Sound; It Should Not Be Amended, 138

F.R.D. 631, 632 (1991)).

The government argues on appeal that the district

court's decision should be affirmed because Dr. Phillips's

testimony does not sufficiently fit the facts of the case and

because the potential prejudice resulting from his testimony

substantially outweighs its probative value. We are unable to

address these arguments on the present record. The district

court did not hold an evidentiary hearing on these issues, nor

did the court make any findings that would support the exclusion

of the evidence for the reasons cited by the government.

Accordingly, the government's arguments must be addressed, in the

first instance, by the district court on remand. See United v.

Streifel, 781 F.2d 953, 958 (1st Cir. 1986), appeal after remand

sub nom, United States v. Quinn, 815 F.2d 156 (1st Cir. 1987).

Finally, we note that if the district court determines

on remand that Dr. Phillips should have been permitted to

testify, the exclusion of the testimony cannot be considered

"harmless error." Although not all erroneous exclusions of

evidence are harmful, where the exclusion "results in actual

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prejudice because it had a substantial and injurious effect or

influence in determining the jury's verdict," reversal is

required. United States v. Legarda, 17 F.3d 496, 499 (1st Cir.)

(internal quotations and citations omitted), cert. denied, 115 S.

Ct. 81 (1994). Here, the statements at issue were vital to the

government's case.7 Moreover, although the court allowed Shay

Jr. to indirectly attack the statements through other evidence,

he was deprived of the opportunity to show that his statements

were the unreliable product of a recognized mental disorder.

Given the importance of the statements to the government's case

and the severe restriction placed on Shay Jr.'s ability to

challenge them, we cannot say that the exclusion of

Dr. Phillips's testimony did not substantially influence the

jury's verdict. See id.; United States v. Versaint, 849 F.2d

827, 832 (3d Cir. 1988) (error not harmless where improperly

excluded evidence went to heart of the defense); United States v.

Ouimette, 753 F.2d 188, 193 (1st Cir. 1985) (error not harmless

because excluded testimony was "the core of the defendant's

case").

B. Other Issues
B. Other Issues

Shay Jr. argues that he is entitled to a new trial for

several additional reasons. We examine these claims to determine

whether a new trial is warranted irrespective of whether the

7 The district court acknowledged the importance of the
statements to the government's case at a side bar conference on
the fourteenth day of trial when it observed that without Shay
Jr.'s statements, "the government would be sunk."

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court erred in preventing Shay Jr. from offering expert testimony

to attack his statements.

1. Shay Jr.'s communications with his former
1. Shay Jr.'s communications with his former
attorney
attorney

Shay Jr.'s former attorney, William McPhee, testified

as a defense witness that he received a copy of the Radio Shack

receipt from the government and gave it to Shay Jr. in May of

1992, prior to Shay Jr. making any statements about having

purchased the items from Radio Shack. He was also permitted to

testify that he and Shay Jr. had several discussions concerning

the receipt. However, Shay Jr. claims that the district court

improperly prevented McPhee from also testifying that Shay Jr.

told him that he had never seen the Radio Shack receipt before

May 1992. We conclude that Shay Jr. has forfeited his right to

raise this contention on appeal because the record does not

demonstrate that he adequately informed the court of the

substance of the excluded evidence. See Fed. R. Evid. 103(a)(2).

McPhee's proposed testimony raised several evidentiary

questions that the district court attempted to resolve in advance

of his actual testimony. Of particular concern to defense

counsel was the extent to which the court would deem McPhee's

testimony to result in a waiver of the attorney-client privilege

and open the door to cross-examination as to the substance of the

communications. In arguing that the testimony would not waive

the privilege, defense counsel repeatedly informed the court that

she did not propose to ask McPhee to describe the substance of

his conversations with Shay Jr. Further, in her voir dire

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examination, defense counsel, true to her word, limited her

inquiry by not questioning McPhee concerning the substance of the

communications.

McPhee's testimony before the jury followed the path

traveled on voir dire. After handing McPhee the redacted copy of

the Radio Shack receipt, defense counsel asked McPhee the

following questions:

COUNSEL: And did you have one conversation
with Mr. Shay on [the subject of the Radio
Shack Receipt] or more than one conversation?
WITNESS: I had more than one conversation.
COUNSEL: Can you tell us 1,2,3,4?
WITNESS: As many as I could focus Tom in on -
-
GOVT: Your honor, I object.
COURT: You can or can't recall, tell us.
WITNESS: I can't recall the exact number of
conversations on the subject I had with Mr.
Shay.
COUNSEL: But the subject of the conversation
was --
GOVT: Objection to the subject of the
conversation.
COURT: I think he already answered your
question, Ms. Gertner. You may be going
further than you really want to.
COUNSEL: I want to make sure that the subject
of the repeated conversations was the Radio
Shack --
GOVT: Your honor, I object to the substance
of the conversation.
COURT: But you've already done it.
COUNSEL: I want to clarify that it was on the
subject of this document.
GOVT: Objection.
COURT: The objection is sustained.

At no point did defense counsel inform the court that she planned

to have McPhee testify that Shay Jr. had told him that he had

never seen the Radio Shack receipt before receiving it from

McPhee. To the contrary, counsel's representations, both before

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and during the testimony, led the district court to reasonably

conclude that the additional testimony defense counsel sought to

elicit would only concern matters that had already been

adequately covered. Accordingly, Shay Jr. forfeited his right to

challenge the excluded evidence on appeal by failing to inform

the court in a timely manner of the substance of the excluded

evidence. Fed. R. Evid. 103(a)(2); United States v. Bonneau, 970

F.2d 929, 933 (1st Cir. 1992); Earle v. Benoit, 850 F.2d 836,

847-48 n.13 (1st Cir. 1988).

2. The adequacy of the jury instructions
2. The adequacy of the jury instructions

Shay Jr. argues that the district court committed

reversible error in failing to instruct the jury in accordance

with his proposed instruction concerning the reliability of his

statements. Because Shay Jr. did not object to the court's

failure to give the proposed instruction,8 we review the issue

for "plain error." United States v. Nason, 9 F.3d 155, 160-61

(1st Cir. 1993), cert. denied, 114 S. Ct. 1331 (1994).

Although a defendant has a right to an instruction on

his theory of defense if that theory is valid and is supported by

the record, United States v. Flores, 968 F.2d 1366, 1367 (1st

Cir. 1992), he "has no right to put words in the judge's mouth.

8 Fed. R. Crim. P. 30 provides in pertinent part: "No party may
assign as error any portion of the charge or omission therefrom
unless the party objects thereto before the jury retires to
consider its verdict, stating distinctly the matter to which that
party objects and the grounds of the objection." Although the
defendant made several objections to the charge, none of those
objections addressed the court's instructions on witness
credibility or the reliability of Shay Jr.'s statements.

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So long as the charge sufficiently conveys the defendant's

theory, it need not parrot the exact language that the defendant

prefers." United States v. McGill, 953 F.2d 10, 12 (1st Cir.

1992); accord Nason, 9 F.3d at 161 (reversible error only if

instruction was substantially correct, was not covered in charge

given, and failure to give it substantially impaired ability to

present a defense). In the present case, the district court's

instructions adequately covered the general subject of witness

credibility and the specific subject of the reliability of Shay

Jr.'s statements. Further, the instructions sufficiently

conveyed the defendant's theory that based on the defendant's

many contradictory statements, none of his statements should be

found reliable. Under these circumstances, it was not plain

error for the court to refuse to give the requested instructions.

3. Exclusion of expert testimony concerning
3. Exclusion of expert testimony concerning
diminished capacity
diminished capacity

Shay Jr.'s principal trial theory was that he was

uninvolved in the bombing. Nevertheless, prior to trial, he

filed a notice pursuant to Fed. R. Crim. P. 12.2 of his intention

to offer expert testimony on the subjects of insanity and

diminished capacity. In later seeking to obtain a favorable

ruling on a motion in limine, however, Shay Jr. informed the

court that his "lack of intent or knowledge [would not be] an

issue." Moreover, after the court denied his motion for a

bifurcated trial on the issue of insanity, defense counsel

informed the court that "we will withdraw any questions about

insanity because I believe quite clearly that it is not possible

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to defend on the merits and insanity at the same time."

Notwithstanding these representations, Shay Jr. informed the

court on the 16th day of trial that he might seek to offer

evidence on the subject of diminished capacity. In prohibiting

him from raising the issue, the court found that Shay Jr. had

withdrawn his Rule 12.2 notice and that it would be "unfair to

the government at this late date to suddenly change horses

again." Shay Jr. challenges the court's finding that he withdrew

his Rule 12.2 notice and therefore contends that the court erred

in preventing him from offering expert testimony on the issue of

diminished capacity.9

We review for abuse of discretion the trial court's

determination that Shay Jr. withdrew his Rule 12.2 notice. Cf.

United States v. Cameron, 907 F.2d 1051, 1057 (11th Cir. 1990)

(applying abuse of discretion standard to district court decision

not to recognize defendant's notice under Rule 12). Since Shay

Jr. informed the court after filing the Rule 12.2 notice that his

knowledge or intent would not be an issue in the case and

expressly withdrew his stated intention to pursue any issue of

insanity, the record contains ample support for the district

court's conclusion that Shay Jr. withdrew his Rule 12.2 notice.

9 We have previously held that psychiatric evidence of
diminished mental capacity is inadmissible to negate mens rea.
United States v. White, 766 F.2d 22, 24-25 (1st Cir. 1985);

Kepreos, 759 F.2d at 964. Although we have more recently

suggested that we might be willing to reexamine this holding in
light of recent precedents in other circuits, United States v.

L pez-Pe a, 912 F.2d 1536, 1541 (1st Cir. 1989), cert. denied,

501 U.S. 1249 (1991), we need not do so here because we agree
with the trial court that Shay Jr. withdrew his Rule 12.2 notice.

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Moreover, since Shay Jr. did not restate his intention to pursue

a diminished capacity defense until the trial was well underway,

we take no issue with the court's conclusion that it would be

unfair to the government to allow Shay Jr. to attempt to offer

evidence on the subject of diminished capacity. Accordingly, we

determine that the district court did not abuse its discretion in

preventing Dr. Phillips from testifying on the subject of

diminished capacity.10

10 Shay Jr.'s argument is also defective because he failed to
make a timely offer of proof with respect to his diminished
capacity evidence. See Fed. R. Evid. 103(a)(2). Although he

produced a report from Dr. Phillips, that report did not discuss
the subject of diminished capacity. Moreover, defense counsel
made no other offer of proof concerning the evidence she proposed
to offer on the subject. Accordingly, Shay Jr. forfeited his
right to challenge the evidence on appeal. Id.; accord Bonneau,

970 F.2d at 933 ("A party may not claim that evidence was wrongly
excluded unless the substance of the evidence was made known to
the trial court or the offer was apparent from the context.").

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III. CONCLUSION
III. CONCLUSION

For the reasons described herein, the case is remanded

to the district court for further proceedings consistent with

this opinion.11 We retain jurisdiction to review the district

court's conclusion as to whether it should permit Dr. Phillips to

testify.

11 In light of this result, we need not, at this point, reach
defendant's sentencing arguments.

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