Barnett v. Norman

Summarized by:

  • Court: 9th Circuit Court of Appeals Archives
  • Area(s) of Law: Civil Rights § 1983
  • Date Filed: 03-31-2015
  • Case #: No. 13-15234
  • Judge(s)/Court Below: Circuit Judge Owens for the Court; Circuit Judges Berzon and Bybee
  • Full Text Opinion

Where a “necessary and material” witness refuses to testify (notwithstanding constitutional, statutory, or common-law rules that bar the testimony), a judge must attempt to encourage the testimony—or explain on the record why no attempt was made—and cannot permit witnesses to opt out of testifying.

In 2003, Troas Barnett fought two prison guards in his cell. Barnett alleged that the guards attacked him with a baton and a flashlight without provocation, then pepper-sprayed and continued to strike him with the baton after his submission. Barnett brought 42 U.S.C. § 1983 claims against two guards for malicious and sadistic use of force in violation of the Eighth Amendment, and against a third guard for failing to timely intervene to protect Barnett. Barnett filed to produce three prisoner-witnesses, whom were identified as “necessary and material” and ordered for production at trial. In response, one such prisoner, Darrell King declared that he had not seen the guards “apply any force to Barnett,” could not provide information, and did not wish to be present at trial. Barnett’s former cellmate, Sven Johnson, testified that he did not want to attend the trial, and that he had “nothing to add to [the] matter.” When prompted to respond to Johnson’s statement, the magistrate judge offered that she could not “compel him to answer if he’s not going to answer.” Barnett’s additional witnesses were similarly uncooperative. Without hearing testimony about the fight, the jury ruled in favor of the guards. On appeal, the Ninth Circuit held that the district court abused its discretion by disclaiming its authority to compel witnesses to testify. The panel explained that judges have a “wide array of tools—from the pillow of additional questions to the sledgehammer of contempt—to ensure that witnesses provide truthful testimony.” Furthermore, by permitting the prisoner-witnesses to opt out of testifying, the district court could not say it was more probable than not that the jury was unaffected by the error. REVERSED and REMANDED.

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