Grant of New Trial Based on Erroneous Admission of Testimony Affirmed

US v. Grigsby, No. 07-7014 (10th Cir. April 9, 2008) (unpublished): A defense win! The Tenth affirms the district court's granting a new trial to a defendant convicted of sexually abusing his grandneice in Indian Country. The district court was concerned because it had allowed defendant's niece (not the victim) testify that 20 years earlier, the defendant had tried to abuse her. The niece was impeached (prior forgery convictions and a motive to lie), but the district court concluded that the unfair prejudice created by her testimony outweighed the probative value, and the curative instruction was insufficient, and accordingly granted a new trial. The Tenth, in affirming, also noted that the other evidence was weak -- the victim clearly could not distinguish between reality and fantasy and her statement included a clear falsehood (she claimed the defendant had stabbed one of his grandchildren that same evening as the incident, but that had not happened) and the defendant's "confession" -- obtained by an investigator with the Cherokee Nation Marshal Service -- was subject to attack. The Court noted that the investigator's own testimony raised concerns regarding the integrity of the interrogation because the investigator admitted the words in the confession were his, not the defendant's, and there were inconsistencies with the investigator's suppression hearing testimony.