dissenting.
I concur in the conclusion of the majority that the testimony in question was hearsay and should have been excluded from the evidence at trial. With respect, though, I part company with the majority on the issue of actual prejudice. As properly noted by the majority, ante at 1172, we should reverse a jury verdict for evi-dentiary error only if “more probably than not, the lower court’s error tainted the verdict.” Tennison v. Circus Circus Enters., 244 F.3d 684, 688 (9th Cir.2001); see also McEuin v. Crown Equipment Corp., 328 F.3d 1028, 1032 (9th Cir.2003). My review of the record suggests that it is highly unlikely that the evidentiary error had any impact on the jury’s verdict. Thus, I would affirm.
To put it into context, I note that the offending testimony consists of one brief exchange — one question and one response — on day 3 of a 6-day trial. It was recorded in a few lines on one page of a trial transcript of 849 pages. Crucial testi*1175mony need not be lengthy, of course, but there is nothing to suggest that this single answer was a smoking gun. To the contrary, it appears that it was never mentioned again during the trial. The psychiatrist was never identified or given a name. No further description was ever given of the “diagnosis” or regarding the basis for it. Thereafter, there appears to have been no reference whatsoever during the trial to this psychiatrist or his opinion that Mr. Mahone was “faking it.” Notably, the defense attorney made no reference of any kind to that testimony during the closing argument.
I do not disagree with the majority as to the importance of Mr. Mahone’s credibility to his case. Mr. Mahone could not possibly prevail if the jury did not believe him. But that is not enough to establish actual prejudice. If it were, the test would simply be whether the disputed testimony pertained to a material issue, in this case, Mr. Mahone’s credibility. That is not the standard, however.
Simply put, there is nothing to suggest that the testimony that an unnamed psychiatrist thought that Mr. Mahone was “faking it” had any impact on the jury’s decision not to believe him, let alone that it “more probably than not” affected the outcome. There was an enormous amount of other evidence put before the jury which permitted it to make its own evaluation of Mr. Mahone’s credibility. It would serve no useful purpose to detail that evidence here. Suffice it to say that the factual story which he told — and which the majority opinion essentially adopts as fact — was sharply contradicted by other witnesses and exhibits. Defendants’ closing argument explicitly addressed the issue of Mr. Mahone’s credibility, not by mentioning anything related to this testimony or, for that matter, referring to any other person’s opinion on the subject, but rather by discussing the specific evidence which conflicted -with Mr. Mahone’s testimony. It is obvious from the verdict that the jury did not believe Mr. Mahone’s testimony, but it is quite unlikely that the jury’s disbelief was based upon the failure to strike the hearsay testimony. There was no shortage of reasons why the jury did not believe Mr. Mahone.
This could not be described as a case where the evidence was closely balanced and where something as limited and tangential as the challenged hearsay statement could have made the difference. The jury did not agonize over the evidence. Rather, the 8-member jury reached a unanimous verdict in favor of defendants in near-record speed: after a 6-day trial, it retired to deliberate at 10:49 a.m. and was back in open court with its verdict at 2:25 p.m. the same day. Even if it passed up lunch (the record is not clear on that), it is plain that the jury did not have any difficulty finding in favor of defendants.
It is especially unreasonable to conclude that what really moved the jurors was the brief reference to the unnamed state hospital psychiatrist’s opinion. Not only was it never mentioned again, but Mr. Mahone had already given an explanation to discount any opinion from that psychiatrist. Prior to giving the testimony at issue, Mr. Mahone said three times that he did not trust counselors or psychiatrists affiliated with the prison, and further testified that “you can’t really divulge too much of your information” to them. Mr. Mahone may not have felt comfortable repeating the diagnosis that he was “faking it,” but his testimony certainly did not amount to a concession to that effect on his part.
Nor is it appropriate to rely, as the majority does, ante at 1174, upon the defendants’ purported concession that the disputed testimony was “prejudicial.” It is obvious that the defendants have merely acknowledged that the testimony weighed *1176against Mr. Mahone, to the extent that it had any effect at all. But they have not agreed that it had an actual effect, let alone that its effect was, more probably than not, to taint the jury’s verdict. I cannot conclude that it was.
I respectfully dissent.