1The Honorable Charles R. Wolle, United States District Judge for the Southern

District of Iowa, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-2445

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John Byron Newman, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Frank X. Hopkins, *

*

Appellee. *

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Submitted: July 3, 2000

Filed: April 27, 2001

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Before WOLLMAN, Chief Judge, RICHARD S. ARNOLD, Circuit Judge, and

WOLLE,1 District Judge.

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WOLLMAN, Chief Judge.

In Newman v. Hopkins, 192 F.3d 1132 (8th Cir. 1999) (Newman I), we reversed

the district court’s denial of a writ of habeas corpus to John Byron Newman, who is

serving a twenty-five to fifty-year sentence on his conviction in a Nebraska state court

on a charge of first-degree sexual assault. The United States Supreme Court granted

certiorari, vacated our judgment, and remanded the case for further consideration in
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light of the Court’s holding in Williams v. Taylor, 529 U.S. 362, 404-05 (2000).

Hopkins v. Newman, 529 U.S. 1084 (2000). Having reviewed the case in the light of

Williams, we adhere to our holding in Newman I.

I.

The facts of this case are set out more fully in Newman I. At trial, Newman

challenged the victim’s identification of him as her attacker from a photo line-up. Prior

to picking out Newman’s picture, the victim had given police a physical description of

her attacker and told them that he spoke with a Hispanic accent. Newman sought to

offer a voice exemplar to demonstrate that he had no accent, proposing that he be

permitted to read a neutral statement aloud in order to allow the jury to hear his

speaking voice. After the trial court ruled that introducing the voice exemplar would

waive his Fifth Amendment protection against self-incrimination and subject him to

cross-examination, Newman chose not to offer the exemplar.

On appeal, the Nebraska Supreme Court ruled that the trial court erred in holding

that offering the voice exemplar would have waived Newman’s Fifth Amendment

rights, but concluded that the error did not require reversal because Newman had made

no offer of proof that the voice exemplar would be reliable, because an accent was

easily manipulated by a speaker and because the conditions under which the victim

heard her attacker’s voice could not be replicated. The voice exemplar, it concluded,

was so unreliable as to be inadmissible under Nebraska’s evidentiary rules. State v.

Newman, 548 N.W.2d 739, 752 (Neb. 1996). The district court, construing the holding

as a straightforward evidentiary ruling, denied Newman habeas relief. We concluded

that the Nebraska Supreme Court’s ruling was in effect a per se exclusion of voice

exemplar evidence that infringed on Newman’s right to present his defense and

remanded the case to the district court with instructions to grant the habeas petition and

order that Newman be released or be given a new trial.
2As amended, section 2254(d) states:

(d) An 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.

28 U.S.C. § 2254(d)(1) .

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II.

Williams v. Taylor governs the degree of deference that must be afforded to state

court determinations on the merits in federal habeas proceedings concerning state

prisoners under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA),

which amended 28 U.S.C. § 2254(d)(1).2 529 U.S. 402-03. We decided Newman I

under AEDPA, but before the Court’s clarifying decision in Williams. Thus, the sole

question before us on remand is whether, in light of the Court’s articulation of the

Williams standard, we correctly determined that Nebraska’s per se exclusion of

Newman’s voice exemplar entitled Newman to habeas relief.

In Newman I, we framed our inquiry on review under AEDPA as “whether the

Nebraska Supreme Court’s failure to remedy the denial of Newman’s right to present

the voice exemplar without waiving his Fifth Amendment right against selfincrimination resulted in an outcome that cannot reasonably be justified under existing

Supreme Court precedent.” 192 F.3d at 1136. Thereafter, the Court announced the

more elaborate Williams standard: A state prisoner may obtain federal habeas relief

with respect to a claim adjudicated on the merits in state court only through a showing

that the state court’s decision was either (1) contrary to, or (2) an unreasonable
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application of, clearly established federal law as determined by the Supreme Court.

Williams, 529 U.S. at 404-05. Because the Supreme Court has not considered the

question whether a defendant has a right to present a voice exemplar in his own

defense, the “contrary to” clause is not implicated in this case, and thus habeas relief

was appropriate only if the ruling of the Nebraska Supreme Court amounted to an

unreasonable application of federal law clearly established by the Supreme Court. See

Closs v. Weber, 238 F.3d 1018, 1020 (8th Cir. 2000).

“Under the ‘unreasonable application’ clause, a federal habeas court may grant

the writ 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.” Williams, 529 U.S. at 413. “Stated simply, a federal court making the

‘unreasonable application’ inquiry should ask whether the state court’s application of

clearly established federal law was objectively unreasonable.” Id. at 410. A state court

decision does not meet the AEDPA standard for unreasonableness simply by virtue of

being erroneous. Id. In reading the “contrary to” and “unreasonable application of”

language in AEDPA as two discrete sources of authority to review a state court’s

determinations, id. at 404-05, the Court acknowledged that “[a] state-court decision

that correctly identifies the governing legal rule but applies it unreasonably to the facts

of a particular case certainly would qualify” as an unreasonable application of federal

law. Id. at 407-08.

In holding that the voice exemplar was too unreliable to be admitted as

demonstrative evidence under Nebraska law, the Nebraska Supreme Court ruled that

voice exemplar evidence by its very nature is different from other

common types of exemplar or demonstrative evidence . . . . [V]oice

exemplar evidence is relatively easy to feign. An accent can be

exaggerated or muted through a person’s conscious efforts, such as

avoiding particular words that one cannot pronounce without an accent.

Since Newman made no offer to establish the genuineness of the
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exemplar, it would have been properly excluded as irrelevant. That is to

say . . . the conditions under which Newman spoke to the victim could not

be reproduced.

State v. Newman, 548 N.W.2d at 752.

In Newman I, we held that this holding amounted to a per se bar on a

defendant’s presentation of voice exemplar evidence, because the reliability

determination was based not on an individualized inquiry into the facts and

circumstances of Newman’s proposed voice exemplar but rather on characteristics

common to all voice exemplars. 192 F.3d at 1136. On remand, we hold that

Nebraska’s adoption of a per se exclusion of voice exemplars constitutes an

unreasonable application of clearly established federal law.

Although the Supreme Court has not addressed the question whether a defendant

has a constitutional right to present a potentially exculpatory voice exemplar, the right

to present favorable evidence to a jury is clearly established by the Court’s precedent.

“Our cases establish, at a minimum, that criminal defendants have the right . . . to put

before a jury evidence that might influence the determination of guilt.” Pennsylvania

v. Ritchie, 480 U.S. 39, 56 (1987). The role of evidentiary rules in the adversarial

process is to “govern the orderly presentation of facts and arguments to provide each

party with a fair opportunity to assemble and submit evidence to contradict or explain

the opponent’s case.” Taylor v. Illinois, 484 U.S. 400, 410-11 (1988). Although “[t]he

accused does not have an unfettered right to offer testimony that is incompetent,

privileged, or otherwise inadmissible under standard rules of evidence,” id. at 410,

“[t]he right of the defendant to present evidence ‘stands on no lesser footing than the

other Sixth Amendment rights that we have previously held applicable to the states,’”

id. at 409. 
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Given that a defendant’s right to present evidence stands on equal footing with

other Sixth Amendment rights, the Court’s holdings concerning the blanket exclusion

of evidence that tends to impeach the state’s witnesses are of special relevance on the

question whether Nebraska’s per se rule constitutes an unreasonable application of

federal law. In Delaware v. Van Arsdall, 475 U.S. 673 (1986), the Court held that a

criminal defendant who was not permitted to offer evidence that a witness was biased

by the state’s dismissal of charges against him “states a violation of the Confrontation

Clause by showing that he was prohibited from engaging in otherwise appropriate

cross-examination designed to show a prototypical form of bias on the part of the

witness.” 475 U.S. at 680. In Davis v. Alaska, 415 U.S. 308 (1974), the Court

concluded that a defendant was entitled to present evidence of a witness’s juvenile

records despite a state policy of sealing such records, where effective impeachment of

the witness required that “defense counsel should have been permitted to expose to the

jury the facts from which jurors, as the sole triers of fact and credibility, could

appropriately draw inferences relating to the reliability of witnesses.” 415 U.S. at 318.

In United States v. Scheffer, 523 U.S. 303, 315 (1998), the Court noted that it

had declared to be unconstitutional categorical exclusions of evidence that

“significantly undermined fundamental elements of the defendant’s case.” The Court

has thus struck down per se exclusions that categorically excluded a defendant’s

hypnotically refreshed testimony, Rock v. Arkansas, 483 U.S. 44, 62 (1987), that

prevented codefendants or coparticipants in a crime from testifying for one another,

Washington v. Texas, 388 U.S. 14, 23 (1967), and that prevented a defendant from

impeaching his own witness and from introducing evidence that the witness had

confessed to having committed the crime of which the defendant was accused,

Chambers v. Mississippi, 410 U.S. 284, 302 (1973). In Scheffer, the Court concluded

that the President’s adoption of Military Rule of Evidence 707, which excludes

polygraph evidence in all military trials, was “a rational and proportional means of

advancing the legitimate interest in barring unreliable evidence.” 523 U.S. at 312. In

so ruling, the Court noted that “the . . . members [of the general court-martial] heard
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all the relevant details of the charged offense from the perspective of the accused, and

the Rule did not preclude him from introducing any factual evidence. Rather,

respondent was barred merely from introducing expert opinion testimony to bolster his

own credibility.” Scheffer, 523 U.S. at 317.

In contrast to the situation in Scheffer, the Nebraska Supreme Court’s imposition

of a categorical bar on the introduction of voice exemplar evidence prevented Newman

from offering factual evidence and significantly undermined his ability to establish the

essential elements of his defense. See Taylor, 484 U.S. at 408 n.13. As the Nebraska

court recognized, the factual question whether Newman spoke with a Hispanic accent

was relevant and potentially exculpatory. Unlike the polygraph evidence at issue in

Scheffer, the record does not reveal that a voice exemplar requires the introduction of

expert testimony, nor is there any indication that the determination of its reliability lies

beyond the ability of lay jurors to evaluate. We recognize full well that the state of

Nebraska has a legitimate interest in the reliability of evidence, and if the facts and

circumstances surrounding a particular voice exemplar make it so unreliable as to

render it inadmissible under Nebraska’s evidentiary rules, a defendant would have no

absolute right to introduce it. See Chambers, 410 U.S. at 302. Rather than balancing

the state’s concern with the defendant’s Sixth Amendment rights, however, Nebraska’s

per se rule bars not only unreliable evidence but also evidence that may, in individual

cases, be reliable. This the state may not constitutionally do, for “[a] State’s legitimate

interest in barring unreliable evidence does not extend to per se exclusions that may be

reliable in an individual case.” Rock, 483 U.S. at 61. Nebraska’s per se exclusionary

rule impermissibly requires the defendant to “bear the full burden of vindicating the

State’s interest” in limiting the type of evidence that may be submitted to a jury. Davis,

415 U.S. at 320. The decisions of the Supreme Court clearly establish that such a per

se rule is unconstitutional. Rock, 483 U.S. at 61. We therefore conclude that the

Nebraska court’s per se exclusion of voice exemplar evidence is an unreasonable

application of clearly established federal law.
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We adhere to our holding in Newman I. Accordingly, the judgment denying the

petition for writ of habeas corpus is reversed, and the case is remanded to the district

court with instruction to enter a writ discharging Newman from custody unless the

state, within a reasonable period of time, grants him a new trial.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.