Court of Appeals Division I                                                                                                
                               State of Washington                                                                                                    
                            Opinion Information Sheet                                                                                                 
Docket Number:       40882-8-I                                                                                                                        
Title of Case:       State of Washington, Appellant                                                                                                   
                     David Israel, Et. al., Respondents                                                                                               
File Date:           00/00/00                                                                                                                         
                                SOURCE OF APPEAL                                                                                                      
Appeal from Superior Court of King County                                                                                                             
Docket No:      96-1-07984-3                                                                                                                          
Judgment or order under review                                                                                                                        
Date filed:     07/07/97                                                                                                                              
Judge signing:  Hon. Charles W. Mertel                                                                                                                
                                COUNSEL OF RECORD                                                                                                     
Counsel for Appellant(s)                                                                                                                              
            Marilyn B. Brenneman                                                                                                                      
            900 4th Ave Ste 1002                                                                                                                      
            Seattle, WA  98164                                                                                                                        
            Barbara A. MacK                                                                                                                           
            1002 Bank of Calif Bldg.                                                                                                                  
            900 Fourth Ave.                                                                                                                           
            Seattle, WA  98164                                                                                                                        
            Richard B. Cowan                                                                                                                          
            119 1st Ave S  Ste 500                                                                                                                    
            Seattle, WA  98104                                                                                                                        
Counsel for Respondent(s)                                                                                                                             
            John W. Wolfe                                                                                                                             
            Wolfe & Rodihan                                                                                                                           
            6110 Columbia Center                                                                                                                      
            701 5th Ave.                                                                                                                              
            Seattle, WA  98104                                                                                                                        
            Joseph Chalverus                                                                                                                          
            Attorney At Law                                                                                                                           
            Ste 220                                                                                                                                   
            2611 NE 125th St                                                                                                                          
            Seattle, WA  98125                                                                                                                        
            Marcus S. Topel                                                                                                                           
            832 Sansome St.                                                                                                                           
            4th Floor                                                                                                                                 
            San Francisco, CA  94111                                                                                                                  
            Gary Dubcoff                                                                                                                              
            832 Sansome St.                                                                                                                           
            4th Floor                                                                                                                                 
            San Francisco, CA  94111                                                                                                                  
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                                                                                    
STATE OF WASHINGTON,                             ) No. 40882-8-I                                                                                      
               Appellant,                        ) DIVISION ONE                                                                                       
          v.                                     )                                                                                                    
DAVID R. ISRAEL, WILLIE JAMES                    )                                                                                                    
KING,                                            )                                                                                                    
               Respondents,                      )                                                                                                    
VINCENT LEE BRYANT, JEFFREY                      )                                                                                                    
O. DORMAN, and each of them,                     ) PUBLISHED                                                                                          
               Defendants.                       ) FILED:                                                                                             
     COX, J. -- Mental examinations of witnesses providing testimony at                                                                               
trial are permissible only where compelling reasons exist for such                                                                                    
examinations.  Moreover, judges determine the competency of witnesses,1 and                                                                           
juries determine their credibility.2  Here, there are no compelling reasons                                                                           
that justify the order in limine directing a trial witness to submit to a                                                                             
psychological examination.  Likewise, a second order in limine that                                                                                   
provides for the admission of expert testimony on antisocial personality                                                                              
disorder is in error.  Accordingly, we reverse both orders in limine and                                                                              
remand for trial.

     David Israel is one of four defendants named in a 32-count indictment                                                                            
that is based on a series of  robberies that were committed in King,                                                                                  
Snohomish, and Cowlitz Counties.  The defendants allegedly robbed various                                                                             
victims in their homes.  Physical and/or sexual assaults of the victims                                                                               
accompanied the robberies.  Hundreds of thousands of dollars were allegedly                                                                           
stolen during the course of these events.

     The State charged Israel and his three codefendants--Jeffrey O.                                                                                  
Dorman, Willie James King, and Vincent Lee Bryant--with conspiracy to                                                                                 
commit first degree robbery as well as substantive crimes in furtherance of                                                                           
the conspiracy.  The State also charged Israel with two counts of first                                                                               
degree kidnapping, three counts of money laundering, and two counts of                                                                                
first degree robbery. 

     The State charged Dorman with 15 counts of first degree robbery with a                                                                           
deadly weapon, 13 counts of first degree kidnapping, and one count of                                                                                 
residential burglary.  Dorman entered into a plea agreement with the State,                                                                           
under which he agreed to testify at trial and otherwise cooperate with the                                                                            
State in the prosecution of his codefendants.  In exchange for these                                                                                  
commitments, the State agreed to drop all charges except the conspiracy                                                                               
charge.  Dorman agreed to plead guilty to that charge only.

     Prior to trial, Israel and King (collectively, "Israel") moved in                                                                                
limine for the admission of expert testimony about "antisocial personality                                                                            
disorder" based on the assertion that Dorman suffers from this disorder.                                                                              
The court granted the motion, subject to certain conditions.

     Shortly thereafter and on the eve of trial, Israel moved for an order                                                                            
compelling Dorman to submit to psychological tests administered by defense                                                                            
experts.  The court granted the motion.

     A commissioner of this court denied the State's motion for                                                                                       
discretionary review of the two orders in limine.  But a panel of judges                                                                              
granted the State's motion to modify the commissioner's ruling and granted                                                                            
discretionary review of both orders.                                                                                                                  
I.  Compelling Reasons 

     The decision to order a witness to submit to psychiatric testing is                                                                              
within the discretion of the trial court.3  The court abuses its discretion                                                                           
when its ruling is manifestly unreasonable or based on untenable grounds or                                                                           
untenable reasons.4  We hold that granting discovery that directed Dorman                                                                             
to submit to psychological testing under the circumstances here was                                                                                   

     The trial court should not order a witness to submit to a                                                                                        
psychological examination absent a compelling reason.5  The compelling                                                                                
reason requirement initially appeared in sexual assault cases.6  In Demos,                                                                            
the defendant sought a psychological examination of the complaining                                                                                   
witness.  He argued that such an examination could provide information that                                                                           
could assist the trier of fact in assessing the "credibility and perceptual                                                                           
ability" of the witness.7  Rejecting that argument, the court held that the                                                                           
accused must provide a compelling reason before a victim could be ordered                                                                             
to undergo a possibly traumatic psychological examination when other more                                                                             
traditional and less intrusive means to assess credibility and perceptual                                                                             
ability are available.  In reaching this conclusion, the Demos court placed                                                                           
the courts of this state with the majority of courts in other jurisdictions                                                                           
on this question.8 

     The prohibition against ordering psychological examinations of trial                                                                             
witnesses absent compelling reasons is not confined to sexual assault                                                                                 
cases.  In Hoffman,9 our Supreme Court applied the rule to the proposed                                                                               
examination of a crime witness. At trial, Hoffman moved for a psychological                                                                           
examination of the surviving police officer in a shoot-out, arguing that it                                                                           
was necessary for Hoffman's effective cross examination of that witness.10                                                                            
The Supreme Court concluded that the trial court did not abuse its                                                                                    
discretion by denying the motion.  The court noted that no question had                                                                               
been raised about the officer's competency to testify.  Moreover, no                                                                                  
compelling reason for the mental examination had been demonstrated:                                                                                   
As we have made clear in sexual offense cases, a crime witness or victim                                                                              
should not be ordered to submit to psychiatric examination unless a                                                                                   
defendant demonstrates a compelling reason.  We perceive no reason for a                                                                              
different rule in this case.  To conclude otherwise would smack of our                                                                                
countenancing a practice of placing victims and witnesses on trial in place                                                                           
of defendants; this we decline to do.{11}                                                                                                             
     The question we must decide is whether the compelling reason                                                                                     
requirement should apply to the proposed compulsory psychological                                                                                     
examination of a witness who is also an alleged co-conspirator.  Under the                                                                            
facts of this case, we see no reason to distinguish between a crime                                                                                   
witness, as in Hoffman, and a crime witness who is also an alleged co-                                                                                
conspirator. 12 

     In its oral ruling, granting the requested psychological examination                                                                             
of Dorman, the court stated:

	I think the compelling reasons are that he is an admitted co-conspirator in                                                                           
	the performance of these crimes.  His testimony implicating his alleged                                                                               
	other co-conspirators to crimes that he's already pled guilty to, and the                                                                             
	issues of credibility that this jury is going to have to weigh are the                                                                                
	unusual, if you will, compelling reasons for allowing this exam.                                                                                      
In its order in limine, the court stated: 

		Mr. Dorman's admitted involvement in the criminal activity at issue                                                                              
		and his central role in the prosecution{'}s case constitute compelling                                                                                
		reasons to direct the State of Washington to produce Mr. Dorman to submit                                                                             
		to a court ordered evaluation given the theory of Mr. Israel's defense and                                                                            
		the court's fundamental obligation under the due process clause of the                                                                                
		State and Federal Constitution and CrR 4.7(e) to provide Mr. Israel and his                                                                           
		counsel with the opportunity to discover those facts which support his                                                                                
		theory of defense.                                                                                                                                    
     We see nothing unusual in the fact that Dorman, who has pleaded guilty                                                                           
to the conspiracy charge, has agreed to give testimony against Israel, his                                                                            
alleged co-conspirator.  Moreover, there is nothing unusual in the fact                                                                               
that Dorman's credibility will be at issue.  Likewise, we see nothing here                                                                            
that offends due process under the state or federal constitutions.  This                                                                              
situation is no different from any arrangement whereby an accused agrees to                                                                           
testify at trial under a plea agreement against accomplices or co-                                                                                    
conspirators in a charged crime.

     The argument that these circumstances constitute compelling reasons                                                                              
might be more convincing if there was something unusual about this case and                                                                           
there were no other means to challenge Dorman's credibility.13  But here                                                                              
there are readily available means to challenge his testimony without a                                                                                
compelled examination of Dorman.  The State has represented both to us and                                                                            
to the trial court that it shall disclose to the jury Dorman's plea                                                                                   
agreement and other aspects of his background.  But even if the State fails                                                                           
to do this, Israel is free to offer evidence of Dorman's prior convictions                                                                            
for crimes of dishonesty.14  Presumably, this would include the conspiracy                                                                            
charge to which he pleaded guilty here.  Israel may also introduce evidence                                                                           
about Dorman's plea agreement, including his commitment to cooperate with                                                                             
the State in exchange for the dismissal of numerous other charges against                                                                             

     Israel has failed to demonstrate that these alternatives are                                                                                     
ineffective means to challenge Dorman's credibility.  In short, there are                                                                             
no compelling reasons here to overcome the strong presumption that                                                                                    
psychological examinations of witnesses to crimes shall not be allowed. 

II. Expert Opinion on Witness Credibility 

     The more troubling issue we must decide is whether it is proper here                                                                             
for an expert to render an opinion that Dorman may be diagnosed with                                                                                  
antisocial personality disorder.  This is a condition that is described in                                                                            
the Diagnostic and Statistical Manual of Mental Disorders.15  We hold that                                                                            
such testimony is not admissible here.

     The decision to admit expert testimony about the psychological                                                                                   
condition of a witness is within the sound discretion of the trial court.16                                                                           
We will not disturb such a ruling unless it is based on untenable grounds                                                                             
or untenable reasons.17 

     We begin our analysis by observing that the competency of Dorman to                                                                              
testify is not at issue in this case.  ER 601 expressly provides that: 

	Every person is competent to be a witness except as otherwise provided                                                                           
	by statute or by court rule.                                                                                                                          
Our examination of the record confirms our conclusion that the proffered                                                                              
expert testimony was intended solely to aid the jury in assessing Dorman's                                                                            
credibility, not to aid the court in determining competency.  During                                                                                  
colloquy, the court stated to counsel:

	Let me just say that the jury is going to be, as the cases repeatedly                                                                            
	state, they're going to be the final arbiter of who is credible and who's                                                                             
	not credible, but I want--I believe I am under an obligation to give them                                                                             
	the tools to make those decisions.                                                                                                                    
     Israel contends that he should be permitted to present expert                                                                                    
testimony that Dorman shows signs of antisocial personality disorder and                                                                              
that this disorder affects his credibility.  The trial court granted                                                                                  
Israel's motion in limine to admit the expert testimony.18 

     There is no Washington case law that supports admission of expert                                                                                
testimony under the circumstances here.  Israel relies on Stamm19 and                                                                                 
Froehlich.20  That reliance is misplaced.

     In Froehlich, both the competency and the credibility of the State's                                                                             
witness were called into question by his nervous demeanor on the stand.                                                                               
Because the defense impeached the witness through cross examination about                                                                             
prior mental problems, the trial court allowed the State to admit expert                                                                              
testimony to corroborate the witness' credibility.21  Accordingly, a                                                                                  
psychiatrist testified about the witness' "anxiety reaction," the absence                                                                             
of brain damage, and his ability to distinguish between truth and untruth.                                                                            
Our Supreme Court concluded that, under the facts of that case, the expert                                                                            
testimony was properly admitted for the purpose of enlightening the jury.22 

     The reason Froehlich is distinguishable from this case is that the                                                                               
holding there was expressly limited to its particular facts.  The court                                                                               

	Where, as here, the mental disability of a witness is clearly apparent                                                                           
	and his competency is a central issue in the case, the jury need not be                                                                               
	left in ignorance about that condition or its consequences.{23}                                                                                       

A subsequent decision by our court recognized this limitation when it                                                                                 

	Where the mental disability of a witness is clearly apparent and his                                                                             
	competency is a central issue in the case, appropriate expert testimony is                                                                            
	admissible to define the mental condition or its consequences.{24}                                                                                    
Here, competency is not at issue, and there is nothing to show that Dorman                                                                            
has a clearly apparent mental disability.  Accordingly, the reasoning of                                                                              
the Froehlich court is inapplicable here. 

     Israel's reliance on Stamm, a case decided by this court before the                                                                              
Supreme Court's decision in Froehlich, is equally misplaced.  There, Stamm                                                                            
challenged the competency of the State's chief witness at trial.  The trial                                                                           
court ordered a psychiatric examination to determine the competency of that                                                                           
witness.  The court also permitted expert testimony about the results of                                                                              
that examination.

     On appeal, Stamm argued that the court erred by not permitting her to                                                                            
select the examining psychiatrist and by limiting the scope of the                                                                                    
examination to a determination of whether the witness was competent to                                                                                
testify.25  The court concluded that the trial court did not abuse its                                                                                
discretion in either respect.  The admission of the expert psychiatric                                                                                
testimony itself was not at issue.

     Israel relies on a footnote in Stamm to support his argument that,                                                                               
under our case law, questions as to a witness' competency are not a                                                                                   
prerequisite to the admission of expert testimony.  The footnote states:                                                                              

	Competence to testify and credibility are intertwined though separate areas                                                                           
	for investigation.  The trial court has discretionary control in both areas                                                                           
	of inquiry.{26}                                                                                                                                       
This statement does not support Israel's argument.  As our Supreme Court                                                                              
made clear in Froehlich, expert testimony regarding the effect of a                                                                                   
witness' mental disability on his or her credibility is only proper when                                                                              
that disability is clearly apparent and the witness' competency is a                                                                                  
central issue in the case.  The Stamm footnote cannot and does not alter                                                                              
that rule.

     Because no Washington case precisely addresses the question presented                                                                            
here, both Israel and the State invite our attention to the law of other                                                                              
jurisdictions to support their respective arguments.  After carefully                                                                                 
reviewing the cases, we conclude that admission of expert testimony on                                                                                
antisocial personality disorder cannot be sustained here.

     Persuasive authority that such expert testimony is not admissible is                                                                             
found in United States v. Barnard.27  There, the trial court excluded expert                                                                          
testimony that the State's witness, a co-conspirator testifying pursuant to                                                                           
a plea agreement with the State, was a "sociopath."  The Ninth Circuit                                                                                
affirmed, expressing "grave doubt" that the expert testimony would be                                                                                 
helpful to the jury.  The court further expressed its concern that such                                                                               
testimony may "cause juries to abandon their own common sense in weighing                                                                             
testimony" and produce a "trial within a trial" on a collateral matter.28                                                                             
The court emphasized that such testimony should be admitted only in                                                                                   
"unusual cases."29 

     Israel attempts to distinguish Barnard.  He cites several other cases                                                                            
for the proposition that expert testimony about whether a witness has a                                                                               
psychopathic personality is admissible to aid the jury in assessing                                                                                   
credibility.  None of these cases support that proposition. 

     Coffin v. Reichard30 was an appeal from an order dismissing Coffin's                                                                             
habeas corpus petition.  The Sixth Circuit concluded that Coffin had failed                                                                           
to establish that he was treated in a cruel and inhuman manner during his                                                                             
commitment for medical treatment.  In reaching this conclusion, the court                                                                             
considered the testimony of the treating physicians, the guard who Coffin                                                                             
alleged had mistreated him, and a fellow inmate who witnessed Coffin's                                                                                
interaction with the guard.  The court further noted that the trial court                                                                             
properly considered Coffin's hospital records, demonstrating that he was a                                                                            
psychopathic personality with paranoid tendencies, in evaluating his                                                                                  

     In Commonwealth v. Towber,31 the court ordered a new trial for Towber                                                                            
based on serious violations of his fifth amendment rights.  As an                                                                                     
additional reason for a new trial, the court noted that the trial court                                                                               
improperly excluded medical records regarding the psychiatric commitment of                                                                           
a self-confessed accomplice who testified against Towber at trial.  Because                                                                           
the witness was released from psychiatric treatment less than seven months                                                                            
before his confession implicating Towber, the court concluded that the                                                                                
hospital records should have been admitted to aid the jury in assessing his                                                                           

     Neither Coffin nor Towber supports Israel's argument.  In both cases,                                                                            
only the admission of medical records was at issue, not the admissibility                                                                             
of expert testimony about psychopathic personality disorder.  Israel's                                                                                
reliance on these cases is misplaced.

     In United States v. Butt, 32 the First Circuit held that the trial                                                                               
court properly excluded expert testimony regarding an informal diagnosis                                                                              
that a witness suffered from depression or a personality defect.  This                                                                                
holding does not support Israel's argument. 

     Israel appears to rely on dicta in the case, which states that "{f}or                                                                            
over forty years, federal courts have permitted the impeachment of                                                                                    
government witnesses based on their mental condition at the time of the                                                                               
events testified to."33  The court's authority for this statement is United                                                                           
States v. Hiss.34  There, Hiss sought to introduce psychiatric evidence                                                                               
about the government's main witness, Whittaker Chambers.  In a brief                                                                                  
memorandum opinion, the District Court concluded that, because the outcome                                                                            
of the trial was completely dependent on the testimony of Chambers, the                                                                               
testimony should be allowed to aid the jury in assessing his credibility.

     Israel cites the case deciding Hiss' subsequent appeal from his                                                                                  
conviction as authority for the admission of expert testimony about                                                                                   
psychopathic personality disorder.35  But the propriety of the admission of                                                                           
the expert testimony was not an issue on appeal, so that case is not                                                                                  
relevant here. 

     Therefore, of all the cases cited by Israel, only the District Court's                                                                           
memorandum opinion in United States v. Hiss36 offers any support for                                                                                  
Israel's position.  But we reject the Hiss case as authority for the                                                                                  
admission of the expert testimony here. 

     In reaching this conclusion, we heed the dictates of the Ninth                                                                                   
Circuit's decision in Barnard.  There, the court emphasized that expert                                                                               
psychiatric testimony on a collateral matter should be admitted only in                                                                               
unusual cases, citing Hiss as an example of such a case.37  But here, as in                                                                           
Barnard, there is nothing unusual.  The situation where a co-conspirator                                                                              
enters into a plea agreement and agrees to testify against his co-                                                                                    
conspirators is not uncommon.

     Our conclusion is further buttressed by our Supreme Court's holding in                                                                           
Froehlich, which expressly limits the admission of expert psychiatric                                                                                 
testimony to the situation where a witness' mental impairment is clearly                                                                              
apparent and his or her competency is a central issue in the case.  None of                                                                           
the cases from other jurisdictions cited by Israel apply these limits.                                                                                
This divergence from our State case law strengthens our conclusion that the                                                                           
reasoning of these cases is inapplicable here. 

     Under these circumstances, there is no tenable basis for the admission                                                                           
of the expert testimony on Dorman's alleged disorder. 

     In light of our resolution of this issue, we need not reach the                                                                                  
remainder of the State's arguments against the admissibility of the expert                                                                            

     We reverse the trial court's orders in limine and remand the case for                                                                            
WE CONCUR:                                                                                                                                            


1 State v. Froehlich, 96 Wn.2d 301, 304, 635 P.2d 127 (1981). 

2 Froehlich, 96 Wn.2d at 304.  See also State v. Myers, 133 Wn.2d 26, 941                                                                             
P.2d 1102 (1997) (credibility determinations are solely for the jury and                                                                              
will not be disturbed on appeal).

3 State v. Demos, 94 Wn.2d 733, 738, 619 P.2d 968 (1980). 

4 State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

5 State v. Hoffman, 116 Wn.2d 51, 89, 804 P.2d 577 (1991). 

6 See, e.g., Demos, 94 Wn.2d at 738; State v. Tobias, 53 Wn. App. 635, 637,                                                                           
769 P.2d 868 (1989); State v. Braxton, 20 Wn. App. 489, 492-93, 580 P.2d                                                                              
1116 (1978), review denied, 91 Wn.2d 1018 (1979). 

7 Demos, 94 Wn.2d at 738. 

8 Demos, 94 Wn.2d at 738.

9 Hoffman, 116 Wn.2d at 89.

10 Hoffman, 116 Wn.2d at 89. 

11 Hoffman, 116 Wn.2d at 89 (citation omitted). 

12 We note that the trial court carefully circumscribed the conditions of                                                                             
the examination: 

	{T}here shall be a single examination of Mr. Dorman by the defense experts                                                                            
	consisting of three psychological tests and an interview.  The tests will                                                                             
	be the MMCI, MMPI, and P.A.I.  The interview will be limited as to                                                                                    
	discussion of criminal acts to those which are convictions after July 1,                                                                              
	1986, and those admitted to in prosecution and defense interviews, and to                                                                             
	conduct disclosed in prison records produced to the defense by the court.                                                                             

13 Cf. United States v. Gonzalez-Maldonado, 115 F.3d 9, 16 (1st Cir. 1997)                                                                            
(finding admissible expert testimony that the government's witness suffered                                                                           
from mental illness that made him prone to exaggeration and noting that the                                                                           
case presented unusual circumstances, i.e., witness was incompetent to                                                                                
testify, jury had no opportunity to evaluate his demeanor, and tapes                                                                                  
containing his statements were damaging to the defense).                                                                                              

14 ER 609(a). 

15 The diagnostic criteria for the disorder are listed in the current                                                                            
edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-                                                                            
IV), at 649-50 (4th ed. 1994): 

	A.  There is a pervasive pattern of disregard for and violation of the                                                                                
	rights of others occurring since age 15 years, as indicated by three (or                                                                              
	more) of the following: 

	(1) failure to conform to social norms with respect to lawful behaviors as                                                                            
	indicated by repeatedly performing acts that are grounds for arrest 

	(2) deceitfulness, as indicated by repeated lying, use of aliases, or                                                                                 
	conning others for personal profit or pleasure 

	(3) impulsivity or failure to plan ahead 

	(4) irritability and aggressiveness, as indicated by repeated physical                                                                                
	fights or assaults  

	(5) reckless disregard for safety of self or others

	(6) consistent irresponsibility, as indicated by repeated failure to                                                                                  
	sustain consistent work behavior or honor financial obligations 

	(7) lack of remorse, as indicated by being indifferent to or rationalizing                                                                            
	having hurt, mistreated, or stolen from another.

16 State v. Stamm, 16 Wn. App. 603, 605, 559 P.2d 1 (1976), review denied,                                                                            
91 Wn.2d 1013 (1977).

17 Junker, 79 Wn.2d at 26. 

18 The court limited the scope of the testimony, by stating:

	{W}hat the doctor would be allowed to testify to is:  the nature of the                                                                               
	disorder, the symptoms indicia . . . of that disorder.  He is never going                                                                             
	to be allowed--or she, I have no idea who that is--to testify to this jury                                                                            
	that in this case this individual is lying or not lying. 

19 16 Wn. App. 603. 

20 96 Wn.2d 301, 307.

21 Froehlich, 96 Wn.2d at 306.

22 Froehlich, 96 Wn.2d at 308.

23 Froehlich, 96 Wn.2d at 306 (italics ours).

24 State v. Despenza, 38 Wn. App. 645, 648, 689 P.2d 87, review denied, 103                                                                           
Wn.2d 1005 (1984).

25 Stamm, 16 Wn. App. at 604-05.

26 Stamm, 16 Wn. App. at 605-06 n.1 (citing 3 Jack B. Weinstein & Margaret                                                                            
A. Berger, Weinstein's Evidence  601{01} Commentary (1975); 3A John H.                                                                               
Wigmore, Evidence sec. 876 (1970)).

27 490 F.2d 907, 912-13 (9th Cir. 1973), cert. denied, 416 U.S. 959 (1974).

28 Barnard, 490 F.2d at 912.

29 Barnard, 490 F.2d at 913.  See also United States v. Awkard, 597 F.2d                                                                              
667, 50 A.L.R. Fed. 594 (9th Cir.) (endorsing both the reasoning and the                                                                              
result of Barnard after the adoption of the Federal Rules of Evidence),                                                                               
cert. denied, 444 U.S. 885 (1979).

30 148 F.2d 278 (6th Cir.), cert. denied, 325 U.S. 887 (1945).

31 190 Pa. Super. 93, 152 A.2d 917 (1959).

32 955 F.2d 77, 83 (1992).

33 Butt, 955 F.2d at 82.

34 88 F. Supp. 559, 559-60 (S.D.N.Y. 1950).

35 In re Writ of Hiss, 542 F. Supp. 973, 993-94 (S.D.N.Y. 1982).

36 88 F. Supp. 559.

37 490 F.2d at 913.