That the psychologist's opinion would not have helped this jury is clear from the nature of the trial. The jury was in a far better position to measure Ambrosino's credibility than was the psychologist. They had almost three full days to observe and evaluate the substance of Ambrosino's testimony and his demeanor. More than a full day of that time was occupied with cross-examination covering numerous aspects of Ambrosino's criminal past and his history of lying to others, under oath and otherwise. Defendant was permitted to exercise to the fullest extent his constitutional right to confront his accuser. It is a fair inference that the jury convicted defendant not because they concluded that Ambrosino had no propensity to lie, but because the corroborating evidence persuaded them beyond a reasonable doubt that he was telling the truth on this occasion, at least with respect to the key elements of the crimes with which defendant was charged. His testimony had to correlate with an enormous amount of other testimony, documents, real proof such as ballistics and fingerprint evidence, and bugs and wiretaps recording conversations.
In addition to having little or no probative value, admission of the psychologist's testimony would have contravened public policy. See Fed. R. Evid. 104 and 403. As the Court of Appeals for this circuit observed in In re Doe, 964 F.2d 1325 (2d Cir. 1992), the trial court must consider the privacy interests at stake in admitting the testimony of a psychotherapist. Not only are the privacy rights of an individual such as Ambrosino potentially threatened, but the public interest also is implicated. People should be encouraged to speak fully and candidly with psychologists. Psychologists depend upon open communication to accomplish their valuable purpose of evaluating and improving the mental health of individual members of society. These considerations are particularly applicable where the government must make the difficult decision whether to accept a person into the Witness Protection Program. The determination that a person can or cannot succeed in this important program, and therefore the viability of the program itself, depends upon the government's being able to procure from experts complete and accurate information about candidates for admission.
For similar reasons, such testimony should not be permitted on the question of bias. This psychologist could not have helped the jury determine what motives Ambrosino might have had for testifying falsely. The jury saw and heard him testify and she did not. They heard the extensive cross-examination probing into possible motives, including Ambrosino's conflicts with defendant and his desire to avoid prison and enter the Witness Protection Program. The psychologist would have added little or nothing to the materials already before the jury. Just as she had no special expertise on the question of credibility, she had no special expertise on the question of bias. The jury knew as much as she did about Ambrosino's desire to enter the Witness Protection Program. Considerations of public policy, prejudice and probative force relating to psychological examinations apply with respect to bias as well as to credibility.
Every factor counsels against the admission of this psychologist's opinion about Ambrosino's credibility and potential bias.
Because the psychologist's testimony would not have been helpful to the jury and good policy advised against its admission, defendant was properly barred from offering it.
Jack B. Weinstein
United States District Judge
Dated: Brooklyn, New York
November 20, 1992
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