In the

United States Court of Appeals

For the Seventh Circuit

No. 99-4160

FELICIA ARIES MORGAN,

Petitioner-Appellee,

v.

KRISTINE KRENKE,

Respondent-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 96-C-1176--Lynn Adelman, Judge.

Argued September 7, 2000--Decided November 13,

2000

 Before BAUER, POSNER, and EVANS, Circuit

Judges.

 EVANS, Circuit Judge. Early one morning

in October of 1991, 17-year-old Felicia

Morgan and two friends went on a

senseless and incomprehensible 15-minute

crime spree on Milwaukee’s north side.

They committed several armed robberies,

motivated by nothing more meaningful than

the desire to steal jewelry or clothing

from a bevy of victims. But robbery

target Brenda Adams did not go quietly.

When Adams refused to give up her leather

trench coat, Morgan shot and killed her.

Morgan then ran off with the coat.

 At her state trial on multiple charges

growing out of these chilling events,

Morgan entered pleas of not guilty and

not guilty by reason of mental disease or

defect pursuant to a Wisconsin procedural

statute, sec. 971.165. Under that

statute, a trial is bifurcated into two

parts. The first deals with guilt and the

second with responsibility.

 Morgan proceeded to trial before a jury

in the Milwaukee courtroom of Circuit

Judge Michael D. Guolee. In the guilt

phase, Morgan was convicted of first
degree intentional homicide while armed,

five counts of armed robbery, and one

count of attempted armed robbery. In the

second phase, the jury rejected her plea

of not guilty by reason of mental disease

or defect. She was sentenced to a life

term on the homicide and assorted other

terms on the robberies. The Wisconsin

Court of Appeals upheld her convictions

(see State v. Morgan, 195 Wis. 2d 388

(1995)) and the Wisconsin Supreme Court

denied review. Morgan then filed a habeas

corpus petition pursuant to 28 U.S.C.

sec. 2254 in the federal district court.

The district court granted the petition,

adecision the State of Wisconsin now

appeals.

 In her habeas petition, Morgan claimed

that the state trial judge’s exclusion of

lay and expert opinion testimony

regarding her mental condition during the

guilt phase of her trial violated her

constitutional rights to due process of

law, to present a defense, and to testify

in her own behalf. Morgan said she

suffered from post-traumatic stress

disorder and that events just prior to

the murder triggered a trance-like state,

consistent with PTSD, which cast doubt on

whether she had the specific intent to

shoot Adams. In granting her habeas

petition, the district court parsed her

evidence into four categories: expert

opinion testimony on the ultimate issue

of capacity to form intent; other expert

psychiatric testimony that Morgan

suffered from PTSD; lay testimony

regarding Morgan’s "psycho-social

history"; and Morgan’s own testimony.

With the exception of the first, the

district court found that exclusion of

the evidence violated Morgan’s

constitutional rights.

 To state more precisely what Morgan’s

claim is requires a brief explanation of

Wisconsin’s bifurcated trial system,

which in one form or another dates back

to 1878. The current version, codified at

sec. 971.165 Wis. Stat., controls the

admission of psychiatric testimony on a

defendant’s intent to commit a crime. In

general, the Wisconsin law sets out a

sequential order of proof in which

psychiatric testimony regarding a

defendant’s capacity to form intent is

relevant only in the responsibility

(second) phase of the trial, not the

guilt phase. The precise scope of the
exclusion of psychiatric testimony as to

intent has been the subject of a fair

number of decisions of the Wisconsin

courts and, from time to time, from this

court as well. An interesting series of

cases reveals the federal-state tension

this procedure has provoked. In Hughes v.

Mathews, 576 F.2d 1250 (7th Cir. 1987),

we held a conviction invalid where

psychiatric testimony as to intent was

excluded in a single-stage trial. For a

short time the Wisconsin Supreme Court

went along with us and, in Schimmel v.

State, 84 Wis. 2d 287 (1978), applied our

rationale to the Wisconsin bifurcated

trial system. But just 2 years later, the

Wisconsin Supreme Court took a closer

look at the issue in Steele v. State, 97

Wis. 2d 72 (1980), and reasserted its

former stand excluding psychiatric

testimony as to a defendant’s capacity to

form intent during the guilt (first)

phase of a bifurcated trial. We, in turn,

reconsidered the issue in Muench v.

Israel, 715 F.2d 1124 (7th Cir. 1983),

concluding that a state may

constitutionally exclude expert testimony

offered to show that a defendant lacked

the capacity to form specific intent.

 Steele, authored by former Chief Justice

Nathan S. Heffernan, is Wisconsin’s

definitive opinion on the issue at hand.

Its holding is premised on Wisconsin’s

skepticism about the reliability of

psychiatric opinion evidence offered to

show a causal link between a defendant’s

mental disease and the capacity to form

an intent to commit the crime alleged.

The court found evidence of that sort to

be lacking in trustworthiness and

reliability. It is, in Justice

Heffernan’s words, "neither competent,

relevant, nor probative . . . ." 97 Wis.

2d at 97. In other words, in Wisconsin "a

finding of insanity is not a finding of

an inability to intend." State v. Repp,

122 Wis. 2d 246, 261 (1985). It is

important to note that psychiatric

evidence is admissible during a trial’s

responsibility phase where the issue

involves more a moral than a legal

question; the determination of capacity

to form intent in the criminal law sense

requires "a fine tuning of an entirely

different nature" than that required for

the determination of whether or not there

should be criminal responsibility:

"Whether or not there should be criminal

responsibility is essentially a moral
issue." Steele, at 96.

 There has been some erosion of the

general principle set out in Steele. For

instance, psychiatric evidence regarding

the capacity to form intent based solely

on a defendant’s voluntary intoxication

is admissible. State v. Flattum, 122 Wis.

2d 282 (1985), reaffirmed that under

Steele psychiatric opinion testimony is

prohibited on the issue of capacity to

form intent when the opinion is based on

a defendant’s mental health history and

restated Wisconsin’s skepticism "in the

ability of psychiatry to causally link

psychiatric disorders to a lack of

capacity to form specific intent." At

297. The court concluded, however, that

such testimony is admissible if the

opinion is based solely on a defendant’s

intoxicated condition. Nevertheless,

exclusion of the testimony was upheld in

Flattum because the opinion of the

psychiatrist regarding the defendant’s

capacity to form intent was based on both

the defendant’s intoxication and his

mental health history, which rendered it

inadmissible under Steele. Then the court

added that psychiatric testimony as to a

defendant’s mental health history,

stopping short of a conclusion regarding

a capacity to form intent, could be

admissible to cast doubt as a factual

matter on whether a defendant had the

specific intent to commit the crime

alleged. At the same time, the court

granted trial judges considerable

discretion to evaluate the evidence as to

relevance, reliability, and the

possibility of prejudice and confusion.

See also State v. Repp, 122 Wis. 2d 246

(1985).

 Taking heart from Flattum and Repp,

Morgan contends that in the guilt phase

of her trial she was prevented from

introducing admissible evidence regarding

her mental health history. In general,

her claim is that in the environment in

which she grew up, she lived through

several traumatic incidents which caused

her to suffer from PTSD and Brief

Reactive Psychosis. These conditions

caused her to "act unintentionally" in

killing Adams. She wanted to present

expert psychiatric evidence regarding her

condition; lay testimony regarding 17

specific incidences of trauma and

violence she experienced which trigger

symptoms of PTSD, one of which goes back
to an incident when she was 3 years old

when her father shot at her mother

"because there was too much salt in the

gravy"; and her own testimony that she

was in a trance-like state of mind when

she killed Adams. Morgan contends that,

in excluding this evidence, the Wisconsin

courts were confused as to the "use of

ultimate opinion testimony and the use of

causation testimony." In an attempt to

clarify the distinction, she says "It was

not Felicia Morgan’s post-traumatic

stress disorder which caused her to

unintentionally kill Brenda Adams, but

the flashbacks and resulting trance-like

states which were unavoidable symptoms of

PTSD." Apparently she believes that it

might be proper to exclude evidence that

the disorder itself made her incapable of

forming intent, but not to exclude

evidence that the symptoms of the

disorder caused her actions to be

unintentional. This is a razor-thin

distinction, to say the least. In any

case, the essence of her argument is that

her evidence does not go to the ultimate

issue of her capacity to form intent, and

therefore its exclusion is not supported

by the Steele-Flattum rule. So banning

the evidence, Morgan says, violated her

constitutional rights to due process, to

present a defense, and to testify in her

own behalf.

 We proceed under sec. 2254 which, even

prior to the amendments made to the

habeas statute by the Antiterrorism and

Effective Death Penalty Act (AEDPA),

placed constraints on the issues federal

courts may consider when reviewing state

convictions. There were limits to our

review of state fact-finding set out

under the previous version of sec.

2254(d). For instance, when a petitioner

has had a "full and fair opportunity" to

litigate a Fourth Amendment claim in

state court, we will not grant habeas

relief on a claim based on an

unconstitutional search and seizure.

Stone v. Powell, 428 U.S. 465 (1976). And

more than ever, after the revisions set

out in AEDPA, we must clearly focus on

what our role as federal judges is.

 As amended by AEDPA, sec. 2254 provides

that

(d) [a]n application for a writ of habeas

corpus on behalf of a person in custody

pursuant to the judgment of a State court
shall not be granted with respect to any

claim that was adjudicated on the merits

in State court proceedings unless the

adjudication of the claim--

(1) resulted in a decision that was

contrary to, or involved an unreasonable

application of, clearly established

Federal law, as determined by the Supreme

Court of the United States[.]

In Williams v. Taylor, 120 S. Ct. 1495

(2000), Justice O’Connor, writing for the

court on the meaning of this provision

(Justice Stevens’ views prevailing as to

other issues), said the phrases "contrary

to" and "an unreasonable application of"

are separate concepts. A state court

decision can be "contrary to" Supreme

Court precedent if the state court

arrives at a conclusion "opposite to that

reached by this Court on a question of

law." At 1519. It can also be "contrary

to" the Court’s precedent if "the state

court confronts facts that are materially

indistinguishable from a relevant Supreme

Court precedent and arrives at a result

opposite" the Court’s. At 1519. A

decision is an "unreasonable application"

of Court precedent if "the state court

identifies the correct governing legal

principle from this Court’s decisions but

unreasonably applies that principle to

the facts of the prisoner’s case." At

1523. Unreasonableness is judged by an

objective standard, and under the

"unreasonable application" clause,

a federal habeas court may not issue the

writ simply because that court concludes

in its independent judgment that the

relevant state-court decision applied

clearly established federal law

erroneously or incorrectly. Rather, that

application must also be unreasonable.

120 S. Ct. at 1522. See also Anderson v.

Cowan, 2000 WL 1310513 (7th Cir. 2000).

 In Morgan’s case, applying principles

from Steele, Flattum, and other Wisconsin

cases, the Wisconsin Court of Appeals

determined that the exclusion was proper-

-that Morgan’s evidence was not relevant

during the guilt phase of her trial nor

was it tied to any defense recognized

under Wisconsin law. Any alleged fact

that she was in a dissociative state was

said not to carry with it the automatic

supposition that she lacked the specific
intent to kill Adams. Citing Chambers v.

Mississippi, 410 U.S. 284 (1973), the

court then concluded that exclusion of

the evidence at the guilt phase did not

deprive Morgan of her constitutional

right to present a defense.

 Was this conclusion an "unreasonable

application" under sec. 2254? To decide,

we must first examine Supreme Court

precedent, set out both in Chambers and,

because Chambers presents a broad general

principle, in other cases which involve

the right to present a defense. In 1967

the Sixth Amendment right of a defendant

to have compulsory process for obtaining

witnesses in his favor was found to be

incorporated into the Due Process Clause

of the Fourteenth Amendment and thus

applicable to state criminal trials.

Washington v. Texas, 388 U.S. 14 (1967).

In Chambers, the Court said that the

right of an accused in a criminal trial

to due process is essentially the right

to a fair opportunity to defend himself.

Chambers was arrested for murder, but a

fellow named McDonald made and later

repudiated a written confession. In

addition, McDonald orally admitted the

killing on separate occasions to three

friends. During his trial, Chambers was

blocked from cross-examining McDonald,

whom he had called to testify, on the

basis of a Mississippi rule that

prevented a party from "impeaching" his

own witness./1 Chambers was also

prevented, on hearsay grounds, from

introducing the testimony of the three

persons to whom McDonald confessed. The

Supreme Court found that the exclusion of

evidence, coupled with the denial of

cross-examination, denied Chambers a fair

trial. Perhaps recognizing that it was

approaching territory traditionally left

to the states, the Court cautioned that

it was not establishing a new principle

of constitutional law, nor was it

"signal[ling] any diminution in the

respect traditionally accorded to the

States in the establishment and

implementation of their own criminal

trial rules and procedures." 410 U.S. at

302-303.

 Neither the rights of the states to

define crimes and establish procedures

for prosecuting them nor the

constitutional rights of defendants in

criminal cases are absolute. A

defendant’s right to present a defense
does not mean he has a right to

irrelevant evidence or even relevant

evidence which, for instance, is

privileged. Taylor v. Illinois, 485 U.S.

400 (1988). On the other hand, the

state’s well-recognized right to control

its criminal code does not mean it has

unfettered power. Apprendi v. New Jersey,

120 S. Ct. 2348 (2000). These competing

interests often intersect, as they do in

Morgan’s case.

 They also intersected in Montana v.

Egelhoff, 518 U.S. 37 (1996). Egelhoff

was before the Supreme Court on direct

appeal from a Montana criminal

conviction. Montana had a law that said a

defendant’s intoxicated condition could

not be admitted to cast doubt on whether

he possessed the mental state required as

an element of the crime charged. The

Montana Supreme Court reversed Egelhoff’s

conviction, saying that his rights under

the Due Process Clause were violated by

the statutory exclusion of evidence; the

court said he had a right to have the

jury consider all relevant evidence to

rebut the State’s evidence and his

intoxicated state was relevant to the

issue whether he acted knowingly and

purposely. The United States Supreme

Court reversed. While noting that

Chambers and Crane v. Kentucky, 476 U.S.

683 (1986), say that in the absence of a

valid state justification, exclusion of

evidence may deprive a defendant of due

process, the Court emphasized that a

defendant does not have an unfettered

right to present evidence, even relevant

evidence. Citing Patterson v. New York,

432 U.S. 197 (1977), the Court pointed

out that, within reason, states may

regulate procedures under which their

laws are carried out. Furthermore, the

Due Process Clause does not permit

federal courts to "engage in a finely

tuned review of the wisdom of state

evidentiary rules." At 43, quoting

Marshall v. Lonberger, 459 U.S. 422

(1983). The Court upheld the Montana law:

The doctrines of actus reus, mens rea,

insanity, mistake, justification, and

duress have historically provided the

tools for a constantly shifting

adjustment of the tension between the

evolving aims of the criminal law and

changing religious, moral, philosophical,

and medical views of the nature of man.

This process of adjustment has always
been thought to be the province of the

States.

At 56, quoting Powell v. Texas, 392 U.S.

514, 535-536 (1968).

 In cases like Morgan’s, the role of any

federal court under sec. 2254 is limited.

The issue here is not whether the

exclusion of any particular piece of

evidence was error in light of Steele,

Flattum, and Repp. A state court of

appeals said it was not. That is the end

of the matter of possible error based on

the measuring of the evidence against

state law because state, not federal,

courts decide these things. And even if

there had been an error of Wisconsin law

regarding the admission of evidence, it

is not our role to correct it. It has

never been our job unless the error rises

to the level of a constitutional

violation. See, e.g., Burrus v. Young,

808 F.2d 578 (7th Cir. 1986). It remains

decidedly not our business under AEDPA.

No federal court may second-guess a state

court’s adjudication of an issue simply

because we disagree with it. The drastic

act of upsetting a judgment entered by

another judicial system, after full

litigation of the question, "is reserved

for grave occasions." Lindh v. Murphy, 96

F.3d 856, 871 (7th Cir. 1996) (en banc),

rev’d on other grounds, 521 U.S. 320

(1997). So the only question for us is

whether the exclusion of evidence was not

just wrong, but whether it was

unreasonable to say that it did not

violate Morgan’s due process right to

present a defense.

 It is perfectly clear, at least after

Egelhoff, that Wisconsin’s bifurcated

trial scheme itself does not run afoul of

Supreme Court precedent--and, in fact,

Morgan does not argue that it does. But

it is that scheme which makes Morgan’s

task so difficult. If excluding at least

most psychiatric evidence from the guilt

phase of a trial is within the power of

the State, and if the exclusion of

evidence in her case is proper under

state law according to a court which has

the authority to decide that issue, then

Morgan has to argue that despite what the

state court said, the exclusion of

evidence in her case was nevertheless so

serious as to violate her right to

present a defense, a defense which

attempts to cast doubt on the existence
of specific intent by using evidence the

State says is not relevant as to that

element. Morgan does not, in our view,

successfully jump over the state-law

fence which surrounds her. What she is

arguing is, in reality, a state law

claim. It is that somehow in her case the

evidence should have been admitted

through a door left sightly ajar in

Flattum.

 Even were the state law issue our

business, we would not agree with Morgan

that the state trial judge’s barring of

the evidence was error under state law.

Despite the fact that Wisconsin remains

skeptical of psychiatric evidence, Morgan

contends that her evidence was different

from that prohibited by Steele. However,

when one looks at her proffered evidence

as a whole, it really adds up to

something very much like opinion evidence

on capacity to form intent. There would

be testimony about the nature of PTSD--

that it is caused by traumatic incidents

and that traumatic events may cause

flashbacks, trance-like states, etc., in

which a person might act unintentionally.

That testimony would be coupled with

testimony that Morgan’s life was filled

with traumatic incidents and her own

testimony that when she killed Adams she

was in a trance-like state. Her evidence

differs only subtly from psychiatric

evidence that she lacked the capacity to

form intent. It is not at all clear that

Morgan’s evidence is more like that

possibly admissible under Flattum than

that which is clearly precluded by

Steele. In addition, Flattum made it very

clear that the trial judge retains

considerable discretion in evaluating

psychiatric evidence.

 It is obvious that Judge Guolee, the

state trial judge, wrestled with Morgan’s

proffer, cited appropriate case law, and

ultimately determined that, given

Wisconsin’s skepticism about psychiatric

testimony, much of Morgan’s evidence

should be excluded. He showed concern for

Morgan’s right to present a defense, but

he also correctly noted that normally a

defendant must rely on a recognizable de

fense--that there are "certain parameters

as to defenses." He referred to the

struggle the Wisconsin appellate courts

have had in evaluating psychiatric

testimony and their conclusion that such

testimony often goes to a moral issue,
which is the relevant inquiry in the

second stage of a bifurcated trial. As to

whether an expert might be allowed to

testify to matters stopping short of the

ultimate issue of capacity to form

intent, the judge recognized the very

"real dilemma" for a court in drawing and

enforcing the boundaries between the two

types of evidence. He then made clear

that Morgan’s own testimony was relevant

as to what she was doing at the moment of

the killing and why she "closed her

eyes," for instance. When pressed as to

whether he was excluding entirely the

other lay testimony about the 17

incidents of trauma, he said, "That’s

pretty broad." He said he was excluding

"irrelevant social testimony" but that he

could not "anticipate what that would

be," thus leaving the door open to some

testimony, the precise contours of which

would be determined as the evidence was

presented. It was this ruling that the

Wisconsin Court of Appeals affirmed. Even

if it were our role to agree or disagree

with this conclusion, we cannot say the

court made the wrong call. And that’s

what it means to give "discretion" to the

trial judge on evidentiary calls.

 As an aside, we note that Morgan would

have placed a very heavy burden on the

trial were she allowed to present 17

separate incidents of past traumatic

incidents, some dating back to when she

was a little girl. For instance

(according to her pretrial submissions),

she wanted to offer, through testing of

friends and family, that when she was

"four to six years old, [she] witnessed

her mother and father regularly dine with

loaded revolvers at their sides during

family dinners so that neither one would

be unprotected from the violent outbursts

of the other." She also wanted to show

that her "cousin was shot in a 1988

street fight and subsequently lost the

use of her arm" and that her mother "shot

a man, in front of Morgan, because he was

molesting Morgan while giving her a

bath." We mentioned earlier that she also

wanted to offer evidence that when she

was only 3 years old, her father shot her

mother "because there was too much salt

in the gravy."

 Unless Morgan assumed the State would

just sit back and listen to all this

testimony without investigating its

accuracy, she was in effect asking the
trial judge to hold 17 mini-trials on

collateral events, some of which were far

outside any conceivably relevant time

period.

 With that detour into Wisconsin law

(which is not really our business) out of

the way, we finally arrive at what is our

business. We must decide whether it is

unreasonable, given what the Supreme

Court has said, for the Wisconsin Court

of Appeals to conclude that the exclusion

of Morgan’s evidence did not deprive her

of her right to present a defense. The

exclusion of evidence of intoxication in

Egelhoff, evidence which was offered to

cast doubt on whether the defendant’s

actions were taken knowingly and

purposely, is closely analogous to the

exclusion of psychiatric evidence on the

issue of specific intent. As we have

already said, it is more than reasonable

to conclude that under Egelhoff,

Wisconsin’s exclusion of psychiatric

evidence during the guilt phase of a

bifurcated trial does not violate a

defendant’s rights. There can be no

misunderstanding the Wisconsin Supreme

Court’s mistrust of such evidence. That

mistrust, as Justice Heffernan clearly

set out in Steele, is grounded in a

belief that the causal link is not

sufficiently strong between a mental

disease and a defendant’s state of mind

at the precise moment a crime is

committed. Furthermore, it seems likely

that the Wisconsin courts might very well

find PTSD evidence less, rather than

more, reliable than evidence of other

mental conditions. According to Morgan,

the relevant symptoms of PTSD, such as

the trance-like state, are not

persistent, but rather are triggered by

specific events. For instance, Morgan

does not claim that she was suffering

from PTSD during the entire 15-minute

crime spree, but only at the moment she

pulled the trigger and shot Adams. It

would require a good deal of precision to

determine just when the PTSD kicked in.

We think it is not an unreasonable

application of United States Supreme

Court precedent to conclude that

Wisconsin can exclude psychiatric

testimony as irrelevant in the first

stage of the trial, and further that the

exclusion of evidence in Morgan’s case

did not violate her constitutional

rights.
 In sum, precedent tells us that in

appropriate instances, the exclusion of

evidence violates a defendant’s right to

present a defense. But the defendant’s

right to present evidence is not

absolute, and the exclusion of even

relevant evidence does not automatically

create a Due Process violation. We also

know that the states retain the right,

also not absolute, to establish

procedures for running its criminal

trials. At the present time, for

Wisconsin to exclude psychiatric

testimony on the capacity to form intent

is within its power. That means that many

defendants who have mental diseases,

which some might think would cast doubt

on their ability to form the intent

necessary to commit a crime, can be

precluded from presenting that testimony

during the guilt phase of their trials.

The exclusion in Morgan’s case is well

within the norm and does not rise to the

level of a constitutional violation.

 We have framed our analysis in terms of

Morgan’s right to present a defense. The

right to present a defense includes a

right to testify on her own behalf. Rock

v. Arkansas, 483 U.S. 44 (1987). Morgan

also seems to make a claim that she was

prevented from testifying. The claim is

not supported by either common sense or

the record. The state trial judge did not

prevent Morgan from testifying. He

indicated that there could be testimony

regarding what Morgan did at the time of

the shooting: "[S]he closed her eyes,

that’s a fact that can be brought out."

Additionally, she could testify as to why

she closed her eyes: "Why she closed her

eyes, what she was doing during those

facts is a fact." If, in reality, the

trial judge had prevented Morgan from

testifying, common sense tells us we

would not now be tangled up in

Wisconsin’s esoteric bifurcation

procedure. Any attorney would have

raised, starkly and with emphasis, the

fundamental issue regarding her right to

testify. If Morgan had been prohibited

from testifying entirely, the Wisconsin

Court of Appeals would certainly have

ordered a new trial. Rather, the court of

appeals never even considered the issue--

more than likely because it was not

raised. If by some chance the case got to

us before some other court corrected the

error, we would waste no time finding

that a decision upholding her conviction
was "contrary to" established Supreme

Court precedent.

 But to be charitable, although Morgan

says in her brief with us that she was

prohibited from testifying, her argument

is, in fact, that the exclusion of the

other testimony "effectively precluded"

her from testifying, another issue not

presented to or considered by the

Wisconsin Court of Appeals.

 We will briefly discuss the issue

despite a possible problem regarding the

exhaustion of state remedies on this

subset of Morgan’s primary claim. No

doubt sensing that the jury might be

skeptical about her testimony that she

was in a trance or did not know what she

was doing, Morgan wanted to present the

whole package: the testimony that she

had PTSD; the symptoms of PTSD that, for

instance, a sufferer may experience

trance-like states; and lay testimony

about traumatic experiences (the 17 inci

dents) and Morgan’s behavior. With that

testimony as a base, she hoped that her

own testimony that she suffered a trancelike state at the time of the murder

would gain a measure of credibility.

That’s why, when she was not allowed to

present the base, she claims she was

"effectively precluded" from testifying.

To that we say two things. She has no

right to present evidence which is

irrelevant in order to bolster her own

testimony. And it is not unusual for

defendants in criminal cases to be

"effectively precluded" from testifying.

A defendant with a nasty criminal record,

for instance, may make a strategic

decision that it is better to remain

silent than to let the jury find out too

much about him. He is effectively

precluded from testifying, but his

constitutional rights are not violated.

 For all these reasons, the judgment of

the district court granting Morgan’s

petition for a writ of habeas corpus is

REVERSED.

/1 

 Not much is left of the hoary rule against

"impeaching" one’s own witness, a rule that has

been discredited as a remnant of the old "voucher" rule (with "oath-takers" summoned to support
one’s case) under primitive English trial practice.