
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-2141                                    UNITED STATES,                                      Appellee,                                          v.                                   THOMAS A. SHAY,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Boudin, Circuit Judge,                                        _____________                           and Barbadoro,* District Judge.                                           ______________                                _____________________               Kathy B. Weinman, by Appointment of the Court, with whom Amy               ________________                                         ___          Baron-Evans, and Dwyer & Collora were on brief for appellant.          ___________      _______________               Frank A. Libby, Jr.,  Assistant United States Attorney, with               ___________________          whom  Donald K. Stern, United States Attorney, and Paul V. Kelly,                _______________                              _____________          Assistant United States Attorney, were on brief for appellee.                                 ____________________                                    June 22, 1995                                 ____________________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                    BARBADORO, District  Judge.  Thomas Shay  Jr. was found                    BARBADORO, District  Judge                               _______________          guilty of conspiracy and  aiding and abetting an attempt  to blow          up his father's car.  In proving its  case, the government relied          in part on  incriminating statements  that Shay Jr.  made to  the          police, the media, and fellow  inmates.  The defendant  responded          by arguing  that his  statements were  unreliable  and should  be          disregarded.  In  this opinion,  we determine  whether the  court          properly prevented the defendant  from supporting his argument by          calling  a psychiatrist to testify that he suffered from a mental          disorder that  causes its  victims  to make  false and  grandiose          statements without regard  to the consequences.   We also address          various other issues that the defendant raises on appeal.                                    I.  BACKGROUND                                    I.  BACKGROUND                                        __________          A.  The Explosion          A.  The Explosion              _____________                    Two  officers from  the Boston  Police Department  Bomb          Squad were  sent to the  home of  Shay Jr.'s father,  Thomas Shay          Sr., after Shay Sr. informed the police that he  had discovered a          suspicious black  box in his  driveway that had  become dislodged          from  the  undercarriage of  his car.    While the  officers were          examining the  box, it exploded, killing  Officer Jeremiah Hurley          and seriously  wounding Officer Frances  Foley.  Agents  from the          Bureau of Alcohol,  Tobacco and Firearms, working with the Boston          Police Department, later determined that the box contained two to          three sticks  of repackaged dynamite, a remote control device and          other components necessary  to detonate  the bomb  from a  remote          location.                                         -2-          B.  The Government's Case          B.  The Government's Case              _____________________                    The  government's  trial  theory   was  that  Shay  Jr.          conspired  with a  friend,  Alfred Trenkler,  to kill  Shay Jr.'s          father by  blowing  up  his  car.    In  proving  its  case,  the          government  relied primarily on  several incriminating statements          that  Shay Jr.  made  after the  bombing.   We describe  his most          damaging  statements   to  illustrate  their  importance  to  the          government's case.                    1.  Shortly after  the bombing, Shay Jr. told  a police          officer, "he was sorry about it and wished he could turn back the          hands of time  and make it  not have  happened."  The  government          argued  at trial that this  statement was evidence  of Shay Jr.'s          guilty conscience.                    2.  Shay Jr. told  reporters covering the bombing  that          he  had been questioned about  whether his father  was capable of          constructing a remote control device.  Because the police claimed          that  they  did not  question Shay  Jr.  about the  bomb's remote          control detonator until  after Shay Jr. made  this statement, the          government argued  that the statement demonstrated  that Shay Jr.          had special knowledge  about the bomb that  only a co-conspirator          would possess.                    3.  Shay Jr. gave an interview to a television reporter          in  which  he made  several  statements  concerning the  bombing.          Although  he claimed in the interview that  he was only guilty of          knowing who had built  the bomb after-the-fact, he  admitted that          Trenkler had told him  before the bombing that he  was planning a                                         -3-          "surprise"  for Shay Jr., which turned out  to be the bomb.  Shay          Jr. also acknowledged during the  interview that he had purchased          a toggle switch and an "AA" battery holder that Trenkler had used          in building the bomb.                    4.   Shay Jr.  allegedly told  a fellow  cellmate, "I'm          boom, boom.  Don't  you know me?  You  have to know me.   I'm the          one who  killed the Boston cop."  According to the cellmate, Shay          Jr.  also told  him  that  he and  Trenkler  had  built the  bomb          together and  attached it  to the  undercarriage of  his father's          car.                     The  government  supported  Shay   Jr.'s  incriminating          statements  about  the  bombing  with other  evidence  that:  (a)          Trenkler and Shay Jr.  were friends who were in  sporadic contact          from 1988 through the fall of 1991; (b) Trenkler had the skill to          construct  the bomb; (c) gray  duct tape consistent  with that in          the  bomb  was  discovered in  a  search  of Trenkler's  parents'          residence; (d) ten days prior to the explosion, someone purchased          a toggle switch and "AA" battery  holder of the same type used in          the bomb from  a Radio  Shack store located  directly across  the          street from where Trenkler was working; (e) Radio Shack's records          listed  the purchaser's  name as  "SAHY," and  his identification          number corresponding  to the  last four  digits of his  telephone          number as "3780," which  was similar to  the last four digits  of          Shay  Sr.'s  home  telephone number,  "7380";  (f)  Shay  Jr. was          strongly  motivated  to  kill  his  father  because  they  had  a          difficult "love-hate" relationship, and Shay Jr. believed that he                                         -4-          would  collect  a  substantial  inheritance if  his  father  were          killed; and (g)  Shay Jr. demonstrated consciousness  of guilt by          fleeing the jurisdiction after he was released on  bail following          his arrest on an unrelated matter.          C.  The Defendant's Case          C.  The Defendant's Case              ____________________                    Shay Jr. responded to  the government's case by arguing          that his statements about  the bombing were unreliable,  that the          rest  of the  evidence failed  to establish  his guilt,  and that          other evidence suggested that  Shay Sr. may have built  the bomb.          His attack on the statements comprised three parts.  First, in an          effort to demonstrate  that he  made the statements  in order  to          fulfill a  compulsive need for  attention even  though they  were          false, the defense elicited testimony from several witnesses that          Shay  Jr.  regularly  told  the  same  grandiose  stories,  often          changing significant  details each time he  told them; repeatedly          sought out the media to talk about the bombing even though it was          not in his interest to do so; made comments concerning the police          investigation  which  were  not  confirmed  by  the  police;  and          expressed abnormal interest in the media attention he received as          a result of his statements.                    Second, the  defense attempted to show  that Shay Jr.'s          many   statements  about   the  bombing   were  conflicting   and          demonstrably wrong  about important details that  would have been          known  by a co-conspirator.   In other words,  as defense counsel          stated in her summation, "[Shay Jr.] may be  trying to talk about          this crime, but  he doesn't make it.   He can't pull it off.   He                                         -5-          doesn't have the  facts right."   To illustrate  this point,  the          defense pointed  to Shay Jr.'s repeated  and incorrect statements          that  the  bomb  contained   C-4  explosive  (or  plastique)  and          batteries purchased from Radio Shack.                    Finally,  the  defense  attempted  to  call  Dr. Robert          Phillips, a psychiatrist, who  was prepared to testify that  Shay          Jr.  suffered   from  a  recognized  mental   disorder  known  as          "pseudologia  fantastica."1    According to  Dr.  Phillips,  this                                        ____________________          1  Pseudologia fantastica is categorized as a factitious disorder          in the Diagnostic and Statistical Manual of Mental Disorders  (3d          ed.  1987)   ["DSMIII-R"]  and   is  sometimes  referred   to  as          Munchausen's Disease named  after Baron von Munchausen  who was a          German  storyteller who  wandered the  countryside spinning  tall          tales.             Pseudologia  fantastica   is  a   variant   of  lying,   often          characterized  as an  extreme  form of  pathological  lying.   R.          Sharrock and  M. Cresswell, Pseudologia Fantastica:  A Case Study                                      _____________________________________          of a Man Charged with Murder, 29 Med. Sci. Law.  323, 323 (1989).          ____________________________          Unlike  "con-men" whose lying is for the purpose of some material          gain, victims  of this condition present  falsifications that are          "'disproportionate to  any discernable end.'"   Id.  Pseudologues                                                          ___          represent fantasies as real  occurrences.  "These fantasies often          involve  dramatic, grandiose, and  exaggerated events consciously          acknowledged as false  by the patient,  yet presented as  truth."          Charles  W. Dithrich,  Pseudologia Fantastica,  Dissociation, and                                 __________________________________________          Potential  Space, in Child  Treatment, 72  Int. J.  Psycho. Anal.          _____________________________________          657, 657 (1991).  "External reality is negated by an enthralling,          seductive  and   exciting  inner  world  in   which  anything  is          possible." Id. at 658.  The gain for the pseudologue could be ego                     ___          enhancement or the attention  received as a result of  the story.          Sharrock and Cresswell, supra at 323.   Many lie for no  apparent                                  _____          reason, in circumstances where they have nothing to gain from not          telling the truth.  Anne Vaughan, "Believe me - I cannot tell the          truth," The Independent, July 9, 1991, at 13.             Pseudologues are also  often highly compliant  and suggestible          to misleading information.  Sharrock and Cresswell, supra at 323.                                                              _____          "'They are  often histrionic or  suggestible types who  thrive on          attention  and lie for a  quick high...and don't  worry about the          consequences.'"  Vaughan, supra.  Furthermore, even when they are                                    _____          confronted  with  their lies,  many  pseudologues  are unable  to          control their lies.  Id.                               ___                                         -6-          condition caused Shay Jr. to                      spin  out   webs   of  lies   which   are                      ordinarily self-aggrandizing and serve to                      place  him in  the  center of  attention.                      Put otherwise, coping for Mr. Shay, given                      his   personality   structure,    entails                      seeking attention, tailoring his words to                      the audience, creating fantasies in which                      he  is  the central  figure,  and through                      which he attempts  to enlist his audience                      .  .  . .    Mr.  Shay's stories  are  an                      attempt to draw  others into his  fantasy                      world in order  to meet the interpersonal                      needs  which  were  not  met  during  his                      childhood.                    The  district court prevented the defense from offering          this testimony,  concluding that the evidence  should be excluded          pursuant  to Fed.  R. Evid.  702 primarily  because the  jury was          capable of  determining the reliability of  Shay Jr.'s statements          without the testimony.2                                        ____________________             As  noted  by one  doctor, "[i]t  is  quite common  for people          suffering  from pseudologia  fantastica to  turn up  at a  police          station confessing to a crime they did not commit.  Usually these          have  been  high-profile,  well-publicized  cases  such  as  bank          robberies.   'This group of pseudologues loves the excitement and          power  that  helping  the police  brings.    It  makes them  feel          important  and they relish all  the attention and  fame that they          receive from the case...'."  Id.                                       ___          2  The court offered the following explanation:                         With respect to the psychiatric expert                      offered by the defendant, as I understand                      that, it  is  offered to  show  that  the                      defendant has an  uncontrollable need  to                      draw  attention to  himself and  will say                      anything  to  satisfy  his  need,  and in                      particular, it is offered to explain away                      his  inculpatory  statement.   Under  702                      expert evidence is  admissible to  assist                      the  jury  to understand  evidence  or to                      determine a fact in issue.  The record in                      this case is replete with the defendant's                      contradictory  statements,  indeed,   his                                         -7-                                   II.  DISCUSSION                                   II.  DISCUSSION                                        __________          A.   Exclusion of Expert Testimony Concerning the          A.   Exclusion of Expert Testimony Concerning the               ____________________________________________               Reliability of Shay Jr.'s Statements               Reliability of Shay Jr.'s Statements               ____________________________________                    In   preventing  Dr.  Phillips   from  testifying,  the          district court relied on  its discretionary authority pursuant to          Fed.  R.  Evid. 702  to exclude  expert  testimony that  will not          "assist  the trier  of  fact to  understand  the evidence  or  to          determine a fact in  issue."  Shay Jr. contends that the decision          was based upon  an erroneous  interpretation of Rule  702.3   The                                        ____________________                      fantastic ones about  tanks and  bombers,                      and other things.                         Under  these  circumstances, the  jury                      does  not  need  expert evidence  on  the                      issue  of  the  defendant's  credibility.                      And   there  is,  with  respect  to  this                      evidence, the additional danger  that the                      expert   will   go   beyond   the   brief                      references  to -- I  think it's called --                      pseudologiafantastica [sic]  in the areas                      that are  in  fact inadmissible  such  as                      diminished     capacity,     personality,                      deficit, and so on.                         The quintessential question is whether                      the jury will  believe what the defendant                      says,  and on  that question,  given this                      record,   the  jury  does  not  need  any                      additional expert evidence or  any expert                      evidence.   Accordingly, I  will rule out                      the  defendant's  proffer on  that issue,                      and  your objection  is noted  as  is the                      Government's.          3   Shay Jr. also  argues that  the exclusion  of Dr.  Phillips's          testimony  violated  his  Sixth  Amendment  right  to  present  a          complete  defense.   The  Sixth   Amendment's Compulsory  Process          Clause  has been interpreted to entitle a defendant to both "'the          right to the government's assistance in compelling the attendance          of  favorable witnesses at  trial and the  right to  put before a          jury evidence that might  influence the determination of guilt.'"          Taylor   v.  Illinois,   484  U.S.   400,  408   (1988)  (quoting          ______       ________          Pennsylvania  v. Ritchie, 480 U.S. 39, 56 (1987)).  Nevertheless,          ____________     _______                                         -8-          government  argues  that the  district  court did  not  abuse its          discretion in  excluding the  evidence and  alternatively asserts          that the court was obligated to exclude the  evidence as a matter          of law because it  concerned a credibility question that  was the          jury's exclusive  province  to resolve.   We  first consider  the          government's argument for categorical exclusion.                    1.   Must expert testimony concerning credibility                    1.   Must expert testimony concerning credibility                         questions be excluded as a matter of law?                         questions be excluded as a matter of law?                    In arguing  that expert testimony  bearing directly  on          credibility  questions is never admissible, the government relies          on selected  quotations from decisions  in other circuits.   See,                                                                       ___          e.g., Bachman v. Leapley, 953 F.2d 440, 441 (8th  Cir. 1992) ("It          ____  _______    _______          is  the  exclusive   province  of  the  jury  to   determine  the          believability of the  witness . . . [a]n expert  is not permitted          to offer an opinion as to the believability or truthfulness  of a          victim's story.");  United States  v. Benson,  941 F.2d  598, 604                              _____________     ______          (7th  Cir. 1991)  ("[c]redibility  is not  a  proper subject  for          expert  testimony"),  modified, 957  F.2d  301  (7th Cir.  1992);                                ________          United  States  v. Barnard,  490 F.2d  907,  912 (9th  Cir. 1973)          ______________     _______          ("[c]redibility, however, is for the  jury - the jury is the  lie                                        ____________________          the  right to  present evidence  is not  unlimited.   Chambers v.                                                                ________          Mississippi, 410 U.S.  284, 302  (1973).  "The  accused does  not          ___________          have an unfettered right to  offer testimony that is incompetent,          privileged,  or otherwise  inadmissible under  standard rules  of          evidence."   Taylor,  484 U.S. at  410.   We need  not define the                       ______          outer limits of  Shay Jr.'s  Sixth Amendment rights  in order  to          decide the present case  because, at least in this  instance, the          Sixth Amendment offers  Shay Jr. no  greater protection than  the          rules of evidence.   See United  States v. Fosher, 590  F.2d 381,                               ___ ______________    ______          384 n.2 (1st  Cir. 1979)  (right to compulsory  process does  not          include the right to adduce properly excluded evidence).                                         -9-          detector in  the courtroom"), cert. denied, 416  U.S. 959 (1974).                                        ____________          We  think  the government  makes  too  much of  these  decisions.          Rather than requiring the wholesale exclusion of expert testimony          concerning  credibility issues,  these cases  stand for  the more          limited proposition that an expert's opinion that another witness          is lying or telling the truth is ordinarily inadmissible pursuant          to Rule 702 because the opinion exceeds the scope of the expert's          specialized knowledge and therefore  merely informs the jury that          it  should reach a particular  conclusion.    See, e.g., Bachman,                                                        ___  ____  _______          953 F.2d  at 441; Benson, 941  F.2d at 604-05; cf.  Fed. R. Evid.                            ______                       ___          704 advisory committee's note  (evidence can be excluded pursuant          to Rule 702 if it "would merely tell a jury what result to reach,          somewhat  in the manner of oath-helpers of  an earlier day").  In          the present case, the district court precluded  Dr. Phillips from          testifying rather  than merely limiting his  testimony to matters          that were within the scope of his expertise.  Thus, the decisions          the government cites do not justify the court's ruling.                    The government's position is further undermined  by the          rules  themselves which  recognize that  expert testimony  may be          admitted to  establish a  witness's  character for  truthfulness.          Fed.  R.  Evid.  402  provides  that  all  relevant  evidence  is          admissible unless its exclusion  is required by the Constitution,          an  act  of  Congress,  or another  rule,  and  no constitutional          provision,  law,  or rule  requires  the  automatic exclusion  of          expert  testimony  simply  because  it  concerns   a  credibility          question.    See Margaret  Berger, United  States  v. Scop:   The                       ___                   ______________     ___________                                         -10-          Common-Law  Approach to  an  Expert's Opinion  About a  Witness's          _________________________________________________________________          Credibility  Still Does Not Work,  55 Brook. L.  Rev. 558, 582-87          ________________________________          (1989).     Moreover,  Fed.   R.  Evid.  608(a),   governing  the          admissibility  of  opinion   testimony  concerning  a   witness's          character, contemplates that truthful or untruthful character may          be  proved by expert testimony.  The advisory committee's note to          Rule 608(a) references Fed. R. Evid.  405(a), which describes the          acceptable methods  for proving relevant character  traits.  Fed.          R.  Evid. 608  advisory committee's  note.   Rule 405's  advisory          committee's  note,  in  turn,  acknowledges that  expert  opinion          testimony is to  be included within  Rule 405's  scope.  Fed.  R.          Evid. 405(a) advisory committee's  note ("If character is defined          as the kind of  person one is, then account must  be taken of the          varying ways of arriving at  the estimate.  These may range  from          the opinion of  the employer who has found the  man honest to the          opinion   of  the   psychiatrist  based   upon  examination   and          testing.").   Thus, the  Federal Rules of  Evidence permit expert          testimony to be offered in appropriate circumstances to establish          a witness's truthful or untruthful character.4                    The government's  fall-back position  is  that even  if          expert  testimony can  be  used to  prove a  testifying witness's                                        ____________________          4   Our decision in United  States v. Kepreos, 759  F.2d 961 (1st                              ______________    _______          Cir.), cert. denied, 474 U.S. 901 (1985), is not to the contrary.                 ____________          Although  we  noted  in  Kepreos  that  "there  is  no indication                                   _______          whatsoever  that either  the  draftmen or  Congress  had in  mind          admitting  evidence  of  broad psychological  traits  or clinical          states such as 'repression' or 'dependency'  or the other similar          characteristics . . .  ,"  our observation was  expressly limited          to broad and undefined psychological traits that were at issue in          that case.  Id. at 965.                      ___                                         -11-          untruthful character, it cannot be used to attack the reliability          of a defendant's out-of-court statements because the defendant is          a  declarant, not a testifying  witness.  This  argument, too, is          unavailing.  Fed. R. Evid. 806 provides that:                      When a hearsay statement, or  a statement                      defined in Rule 801(d)(2)(C), (D) or (E),                      has  been  admitted   in  evidence,   the                      credibility  of  the  declarant   may  be                      attacked,   and   if  attacked,   may  be                      supported, by  any evidence   which would                      be  admissible  for  those   purposes  if                      declarant had testified as a witness.          Although the rule does not expressly include attempts to attack a          defendant's out-of-court  statements admitted pursuant to Fed. R.          Evid.  801(d)(2)(A),  the  Senate  Judiciary  Committee's  report          concerning the proposed rules states:                      The  committee considered  it unnecessary                      to include statements  contained in  Rule                      801(d)(2)(A) and (B)  - the statement  by                      the   party-opponent   himself   or   the                      statement of which he has  manifested his                      adoption - because the credibility of the                      party-opponent  is  always subject  to an                      attack on his credibility.          S. Rep. No. 1277, 93d  Cong., 2d Sess. (1974).  We agree with the          Seventh  Circuit  Court  of  Appeals that  the  Senate  Judiciary          Committee's report  correctly states the  law.  United  States v.                                                          ______________          Dent, 984 F.2d  1453, 1460 (7th Cir.),  cert. denied, 114  S. Ct.          ____                                    ____________          (1993).    Thus,   we  reject  the    government's  argument  for          categorical exclusion  and turn  to the district  court's reasons          for excluding the evidence.                    2.   Did the district court properly exclude the                    2.   Did the district court properly exclude the                         psychiatrist's testimony pursuant to Rule 702?                         psychiatrist's testimony pursuant to Rule 702?                    A district court's decision  to admit or exclude expert                                         -12-          testimony  is  entitled to  great  deference.   United  States v.                                                          ______________          Echeverri,  982 F.2d 675, 680  (1st Cir. 1993);  United States v.          _________                                        _____________          Hoffman,  832 F.2d 1299,  1310 (1st  Cir. 1987).   Thus,  we will          _______          reverse a decision  on this, or  any other evidentiary  question,          only  if: (1)  the  district  court  based  the  decision  on  an          incorrect  legal standard,  see United  States v. Rahm,  993 F.2d                                      ___ ______________    ____          1405,  1410 (9th Cir. 1993);  United States v.  Pelullo, 964 F.2d                                        _____________     _______          193, 198  (3d Cir. 1992),  or (2)  we have a  "definite and  firm          conviction that  the court made a clear  error of judgment in the          conclusion  it  reached based  upon  a weighing  of  the relevant          factors."   United States v.  Benavente G mez, 921  F.2d 378, 384                      _____________     _______________          (1st  Cir. 1990)  (internal  quotations and  citations  omitted).          Applying this standard, we conclude that the district court erred          in excluding Dr. Phillips's testimony pursuant to Rule 702.                      a.  Rule 702's Requirements                      a.  Rule 702's Requirements                          _______________________                    Rule  702  consists  of   three  distinct  but  related          requirements.  First, a proposed expert witness must be qualified          to  testify  as  an  expert  by  "knowledge,  skill,  experience,          training, or education." Fed. R. Evid. 702; accord United  States                                                      ______ ______________          v. Paiva,  892 F.2d  148,  160 (1st  Cir. 1989)  ("a witness  may             _____          qualify as  an expert  on any  one of  [Rule  702's] five  listed          grounds").     Second,  the   expert's  testimony   must  concern          "scientific, technical or other  specialized knowledge."  Fed. R.          Evid. 702;  accord Daubert v. Merrell  Dow Pharmaceuticals, Inc.,                      ______ _______    __________________________________          113  S. Ct. 2786, 2795  (describing criteria to  be considered in          determining reliability  of scientific testimony).   Finally, the                                         -13-          testimony  must "assist  the  trier  of  fact to  understand  the          evidence or  to determine a fact  in issue."  Fed.  R. Evid. 702;          accord Daubert, 113 S. Ct. at 2795.  Since the district court did          ______ _______          not question  Dr.  Phillips's qualifications  or the  specialized          nature  of  his opinions,  we focus  our  analysis on  Rule 702's          assistance requirement.                    The fundamental  question that  a court must  answer in          determining whether a proposed expert's testimony will assist the          trier  of  fact is  "'[w]hether  the  untrained layman  would  be          qualified to determine intelligently and to the best degree,  the          particular  issue  without  enlightenment  from  those  having  a          specialized  understanding  of  the  subject  matter  involved.'"          United  States  v.  Montas, 41  F.3d  775,  783  (1st Cir.  1994)          ______________      ______          (quoting  Fed. R.  Evid.  702 advisory  committee's note),  cert.                                                                      _____          denied,  63 U.S.L.W.  3818 (U.S.  1995); accord United  States v.          ______                                   ______ ______________          Lamattina,  889 F.2d 1191, 1194 (1st Cir. 1989); United States v.          _________                                        _____________          Rivera  Rodr guez, 808  F.2d  886,  888  (1st  Cir.  1986).    In          _________________          answering this  question, the court must  first determine whether          the  proposed testimony  is relevant  and fits  the facts  of the          case.5   Daubert, 113  S. Ct. at  2795-96; In Re  Paoli R.R. Yard                   _______                           ______________________                                        ____________________          5   The concept of "fit"  requires that a valid  connection exist          between the expert's  testimony and a  disputed issue.   Daubert,                                                                   _______          113  S.  Ct.  at  2796.    Judge  Becker,  who coined  the  term,          illustrates  the  concept  with  the  following  example.   If  a          plaintiff contends that  he or she  developed cancer after  being          exposed to chemical X  and seeks to support that  contention with          expert testimony  that chemical X  causes cancer in  animals, the          testimony will  not  fit the  facts  of the  case and  should  be          excluded  unless  the  plaintiff   also  offers  reliable  expert          testimony  that  results  observed  in  the  animal  studies  are          transferable to  humans.   In Re Paoli  R.R. Yard PCB  Litig., 35                                     __________________________________                                         -14-          PCB Litig.,  35  F.3d at  742-43.   The  inquiry  then shifts  to          __________          whether the witness's opinions  are based upon specialized skill,          training, or experience.   Benson, 941 F.2d at 604;  cf. Daubert,                                     ______                    ___ _______          113  S. Ct. at 2796 (relaxation of Fed. R. Evid. 602's first-hand          knowledge requirement  is justified for  expert testimony because          an  "expert's opinion will have a reliable basis in the knowledge          and  experience  of  his  discipline").    Unless  the  witness's          opinions are informed by expertise, they are no more helpful than          the opinions of  a lay witness.   Thus, such  opinions cannot  be          admitted  pursuant to Rule 702  and instead must  comply with the          requirements of Fed. R. Evid.  701 governing the admissibility of          opinion testimony by lay witnesses.  See generally  United States                                               ___ _________  _____________          v. Jackman, 48 F.3d  1, 4-5 (1st Cir. 1995)  (describing standard             _______          for  admissibility of opinion  testimony by  lay witness).   This          circuit  has   not  decided  whether,  after   Daubert,  reliable                                                         _______          testimony from a qualified  expert may be deemed  unhelpful under          Rule   702  even  if  these  aspects  of  the  rule's  assistance          requirement  are satisfied.   But cf.  In Re Paoli  R.R. Yard PCB                                        ___ ___  __________________________          Litig.,  35  F.3d  at  747  (noting  that  challenges  to  expert          ______          testimony as  prejudicial must be  analyzed pursuant to  Rule 403          rather than Rule  702).  We need  not resolve this  question here          because, as  we describe  in detail  below, the district  court's          reasons  for excluding  the evidence  are insufficient  under any          plausible reading of Rule 702.                                        ____________________          F.3d 717,  743 (3d  Cir. 1994),  cert.  denied, 115  S. Ct.  1253                                           _____________          (1995).                                         -15-                      b.  The District Court's Analysis                      b.  The District Court's Analysis                          _____________________________                    Dr.  Phillips was  prepared  to testify  that Shay  Jr.          suffered from a mental disorder that caused him to make grandiose          statements  similar   in  nature  to  the   statements  that  the          government  was seeking to use  against him.   The district court          excluded the  testimony because  it concluded that  the testimony          would  not assist  the jury  in light  of  other evidence  in the          record  concerning  the  reliability of  Shay  Jr.'s  statements.          However,  whether or not the  jury had the  capacity to generally                                                                  _________          assess  the reliability of these statements in light of the other          evidence in  the case,  it plainly  was unqualified  to determine          without  assistance the particular issue of  whether Shay Jr. may                                  __________          have  made false statements against  his own interests because he          suffered from  a mental disorder.   Common understanding conforms          to the notion that  a person ordinarily does not  make untruthful          inculpatory  statements.   See Fed.  R. Evid.  804(b)(3) advisory                                     ___          committee's  note  (statements  against  interest  are especially          reliable  because  "persons  do  not make  statements  which  are          damaging  to themselves  unless satisfied  for good  reasons that          they  are  true").    Dr. Phillips  would  have  testified  that,          contrary to this common sense assumption, Shay Jr.  suffered from          a recognized  mental  disorder  that caused  him  to  make  false          statements even  though they were inconsistent  with his apparent          self-interest.    Thus,  Dr.   Phillips  was  prepared  to  offer          specialized  opinion testimony,  grounded in  his expertise  as a          psychiatrist,  that could  have  "explode[d] common  myths" about                                         -16-          evidence vital to the government's case.  United States v. Moore,                                                    _____________    _____          786 F.2d 1308, 1312  (5th Cir. 1986) (citations omitted).   While          the  record contains other evidence  that Shay Jr.  told lies and          boasted  to an unusual degree,  this evidence, standing alone, is          much  less  powerful  than  the psychiatric  testimony  that  Dr.          Phillips  was prepared  to offer.   Moreover,  the court  did not          express any concern that Dr. Phillips was unqualified or that his          testimony  was unreliable because  it concerned some  novel or ad          hoc syndrome.   Under all of  the circumstances, it  was a  clear          error in judgment for the district court to exclude the testimony          under any plausible interpretation of Rule 702.6                    3.  Is a new trial required?                    3.  Is a new trial required?                    Although a  court  may  not  exclude  expert  testimony          simply because it concerns a credibility question or because non-          expert testimony  was presented  on the  same  issue, it  retains          ample discretion to  exclude or  limit such  testimony for  other          reasons.  Even if expert testimony is admissible pursuant to Rule          702, it  may be disallowed pursuant  to Fed. R. Evid.  403 if its          prejudicial,  misleading,  wasteful,  confusing,   or  cumulative          nature  substantially  outweighs its  probative  value.   As  the                                        ____________________          6   The district court  also expressed concern  that Dr. Phillips          should not testify  because he might stray into the impermissible          subject of Shay Jr.'s mental capacity to commit the  crime.  This          concern, essentially that the  testimony might have a prejudicial          effect, must  be addressed pursuant to Rule  403's balancing test          rather  than pursuant  to Rule  702's helpfulness standard.   See                                                                        ___          Daubert, 113 S. Ct. at 2798.  Applying Rule 403, we conclude that          _______          the  potential for prejudice cited  by the court  could have been          prevented  by  appropriate  limitations   on  the  scope  of  Dr.          Phillips's  testimony.  Thus, the court's concern cannot serve as          an independent basis for its decision.                                         -17-          Supreme Court recently observed,  "'[e]xpert evidence can be both          powerful  and  quite  misleading  because of  the  difficulty  in          evaluating  it.   Because  of this  risk,  the judge  in weighing          possible prejudice against  probative force under Rule 403 of the          present rules exercises more control  over experts than over  lay          witnesses.'"  Id.  at 2798  (quoting Weinstein, Rule  702 of  the                        ___                               _________________          Federal Rules of Evidence is Sound; It Should Not Be Amended, 138          ____________________________________________________________          F.R.D. 631, 632 (1991)).                    The  government  argues  on appeal  that  the  district          court's  decision  should  be  affirmed  because  Dr.  Phillips's          testimony does not  sufficiently fit  the facts of  the case  and          because  the potential  prejudice  resulting from  his  testimony          substantially outweighs its  probative value.   We are unable  to          address these  arguments  on the  present record.   The  district          court  did not hold an  evidentiary hearing on  these issues, nor          did  the court make any findings that would support the exclusion          of  the  evidence  for  the  reasons  cited  by  the  government.          Accordingly, the government's arguments must be addressed, in the          first instance, by  the district court on remand.   See United v.                                                              ___ ______          Streifel,  781 F.2d 953, 958 (1st Cir. 1986), appeal after remand          ________                                      ______ _____ ______          sub nom, United States v. Quinn, 815 F.2d 156 (1st Cir. 1987).          ___ ___  _____________    _____                    Finally, we note that  if the district court determines          on  remand  that  Dr.  Phillips  should  have been  permitted  to          testify,  the exclusion  of  the testimony  cannot be  considered          "harmless  error."   Although  not  all  erroneous exclusions  of          evidence  are harmful,  where  the exclusion  "results in  actual                                         -18-          prejudice because it  had a substantial  and injurious effect  or          influence  in  determining  the   jury's  verdict,"  reversal  is          required.  United States v. Legarda, 17 F.3d  496, 499 (1st Cir.)                     _____________    _______          (internal quotations and citations omitted), cert. denied, 115 S.                                                       ____________          Ct. 81 (1994).  Here,  the statements at issue were vital  to the          government's case.7   Moreover,  although the court  allowed Shay          Jr. to  indirectly attack the statements  through other evidence,          he  was deprived of the  opportunity to show  that his statements          were  the unreliable  product  of a  recognized mental  disorder.          Given the  importance of the statements to  the government's case          and  the  severe restriction  placed  on  Shay Jr.'s  ability  to          challenge   them,   we  cannot   say   that   the  exclusion   of          Dr. Phillips's  testimony did  not  substantially  influence  the          jury's verdict.   See id.;  United States v.  Versaint, 849  F.2d                            ___ ___   _____________     ________          827, 832  (3d Cir.  1988) (error  not  harmless where  improperly          excluded evidence went to heart of the defense); United States v.                                                           _____________          Ouimette, 753 F.2d 188,  193 (1st Cir. 1985) (error  not harmless          ________          because  excluded  testimony was  "the  core  of the  defendant's          case").          B.   Other Issues          B.   Other Issues               ____________                    Shay Jr. argues  that he is entitled to a new trial for          several additional reasons.  We examine these claims to determine          whether a  new  trial is  warranted irrespective  of whether  the                                        ____________________          7    The  district  court  acknowledged  the  importance  of  the          statements to the government's  case at a side bar  conference on          the  fourteenth day of trial  when it observed  that without Shay          Jr.'s statements, "the government would be sunk."                                         -19-          court erred in preventing Shay Jr. from offering expert testimony          to attack his statements.                    1.  Shay Jr.'s communications with his former                    1.  Shay Jr.'s communications with his former                        attorney                        attorney                    Shay Jr.'s  former attorney, William  McPhee, testified          as  a defense witness that he received  a copy of the Radio Shack          receipt  from the government  and gave it  to Shay Jr.  in May of          1992, prior  to  Shay  Jr.  making any  statements  about  having          purchased the items from Radio  Shack.  He was also permitted  to          testify that he and Shay  Jr. had several discussions  concerning          the  receipt.  However, Shay  Jr. claims that  the district court          improperly prevented  McPhee from  also testifying that  Shay Jr.          told him  that he had never  seen the Radio  Shack receipt before          May 1992.   We conclude that Shay Jr. has  forfeited his right to          raise  this  contention on  appeal  because the  record  does not          demonstrate  that  he  adequately   informed  the  court  of  the          substance of the excluded evidence.  See Fed. R. Evid. 103(a)(2).                                               ___                    McPhee's proposed testimony raised  several evidentiary          questions that the district court attempted to resolve in advance          of  his  actual  testimony.   Of  particular  concern  to defense          counsel was the  extent to  which the court  would deem  McPhee's          testimony  to result in a waiver of the attorney-client privilege          and open the door to cross-examination as to the substance of the          communications.  In  arguing that the  testimony would not  waive          the privilege, defense counsel repeatedly informed the court that          she did not  propose to ask  McPhee to describe the  substance of          his  conversations with  Shay  Jr.   Further,  in her  voir  dire                                         -20-          examination,  defense  counsel, true  to  her  word, limited  her          inquiry by not questioning McPhee concerning the substance of the          communications.                    McPhee's  testimony before the  jury followed  the path          traveled on voir dire.  After handing McPhee the redacted copy of          the  Radio  Shack  receipt,  defense  counsel  asked  McPhee  the          following questions:                    COUNSEL:  And did  you have  one conversation                    with Mr.  Shay on  [the subject of  the Radio                    Shack Receipt] or more than one conversation?                    WITNESS: I had more than one conversation.                    COUNSEL: Can you tell us 1,2,3,4?                    WITNESS: As many as I could focus Tom in on -                    -                    GOVT: Your honor, I object.                    COURT: You can or can't recall, tell us.                    WITNESS: I  can't recall the exact  number of                    conversations on the  subject I had  with Mr.                    Shay.                    COUNSEL: But the subject of  the conversation                    was --                    GOVT:  Objection   to  the  subject   of  the                    conversation.                    COURT:  I  think  he  already  answered  your                    question,  Ms.  Gertner.  You  may  be  going                    further than you really want to.                    COUNSEL: I want to make sure that the subject                    of the  repeated conversations was  the Radio                    Shack --                    GOVT: Your  honor, I object  to the substance                    of the conversation.                    COURT: But you've already done it.                    COUNSEL: I want to clarify that it was on the                    subject of this document.                    GOVT: Objection.                    COURT: The objection is sustained.          At no point did defense counsel inform the court that she planned          to have  McPhee testify that  Shay Jr. had  told him that  he had          never  seen  the Radio  Shack  receipt before  receiving  it from          McPhee.  To the  contrary, counsel's representations, both before                                         -21-          and during the  testimony, led the  district court to  reasonably          conclude that the additional  testimony defense counsel sought to          elicit  would   only  concern  matters  that   had  already  been          adequately covered.  Accordingly, Shay Jr. forfeited his right to          challenge  the excluded evidence  on appeal by  failing to inform          the court  in a timely  manner of the  substance of  the excluded          evidence.  Fed. R. Evid. 103(a)(2); United States v. Bonneau, 970                                              _____________    _______          F.2d 929,  933 (1st Cir.  1992); Earle  v. Benoit, 850  F.2d 836,                                           _____     ______          847-48 n.13 (1st Cir. 1988).                    2.   The adequacy of the jury instructions                    2.   The adequacy of the jury instructions                    Shay  Jr.  argues  that  the  district court  committed          reversible error  in failing to  instruct the jury  in accordance          with his  proposed instruction concerning the  reliability of his          statements.    Because Shay  Jr. did  not  object to  the court's          failure to  give the proposed  instruction,8 we review  the issue          for "plain  error."  United States  v. Nason, 9 F.3d  155, 160-61                               _____________     _____          (1st Cir. 1993), cert. denied, 114 S. Ct. 1331 (1994).                           ____________                    Although a defendant  has a right to  an instruction on          his theory of defense if that theory is valid and is supported by          the record, United  States v.  Flores, 968 F.2d  1366, 1367  (1st                      ______________     ______          Cir. 1992), he  "has no right to put words  in the judge's mouth.                                        ____________________          8  Fed.  R. Crim. P. 30 provides in pertinent part: "No party may          assign as error any  portion of the charge or  omission therefrom          unless  the party  objects  thereto before  the  jury retires  to          consider its verdict, stating distinctly the matter to which that          party  objects and the grounds  of the objection."   Although the          defendant made  several objections to  the charge, none  of those          objections   addressed  the   court's  instructions   on  witness          credibility or the reliability of Shay Jr.'s statements.                                         -22-          So  long  as  the  charge sufficiently  conveys  the  defendant's          theory,  it need not parrot the exact language that the defendant          prefers."   United States  v. McGill, 953  F.2d 10,  12 (1st Cir.                      _____________     ______          1992);  accord Nason,  9 F.3d  at 161  (reversible error  only if                  ______ _____          instruction was substantially correct,  was not covered in charge          given, and failure to  give it substantially impaired ability  to          present  a defense).  In  the present case,  the district court's          instructions adequately  covered the  general subject  of witness          credibility and the  specific subject of the  reliability of Shay          Jr.'s  statements.     Further,  the  instructions   sufficiently          conveyed  the defendant's  theory that  based on  the defendant's          many contradictory  statements, none of his  statements should be          found  reliable.   Under these  circumstances, it  was  not plain          error for the court to refuse to give the requested instructions.                    3.   Exclusion of expert testimony concerning                    3.   Exclusion of expert testimony concerning                         diminished capacity                         diminished capacity                    Shay  Jr.'s  principal trial  theory  was  that he  was          uninvolved  in the  bombing.   Nevertheless, prior  to  trial, he          filed a notice pursuant to Fed. R. Crim. P. 12.2 of his intention          to  offer expert  testimony  on  the  subjects  of  insanity  and          diminished  capacity.   In  later seeking  to obtain  a favorable          ruling  on a  motion in  limine, however,  Shay Jr.  informed the          court that  his "lack of  intent or knowledge  [would not  be] an          issue."   Moreover,  after  the court  denied  his motion  for  a          bifurcated  trial  on  the  issue of  insanity,  defense  counsel          informed the  court that "we  will withdraw  any questions  about          insanity  because I believe quite clearly that it is not possible                                         -23-          to  defend  on  the  merits  and  insanity  at  the  same  time."          Notwithstanding  these  representations,  Shay  Jr.  informed the          court  on the  16th day  of  trial that  he might  seek to  offer          evidence  on the subject of  diminished capacity.  In prohibiting          him from  raising the issue,  the court  found that Shay  Jr. had          withdrawn his  Rule 12.2 notice  and that it would  be "unfair to          the  government  at  this late  date  to  suddenly change  horses          again."  Shay Jr. challenges the court's finding that he withdrew          his  Rule 12.2 notice and therefore contends that the court erred          in  preventing him from offering expert testimony on the issue of          diminished capacity.9                    We  review for  abuse of  discretion the  trial court's          determination that Shay Jr.  withdrew his Rule 12.2 notice.   Cf.                                                                        ___          United  States v. Cameron, 907  F.2d 1051, 1057  (11th Cir. 1990)          ______________    _______          (applying abuse of discretion standard to district court decision          not to recognize defendant's  notice under Rule 12).   Since Shay          Jr. informed the court after filing the Rule 12.2 notice that his          knowledge  or intent  would  not  be an  issue  in the  case  and          expressly withdrew his  stated intention to  pursue any issue  of          insanity,  the record  contains  ample support  for the  district          court's  conclusion that Shay Jr. withdrew  his Rule 12.2 notice.                                        ____________________          9    We  have  previously   held  that  psychiatric  evidence  of          diminished mental  capacity is  inadmissible to negate  mens rea.          United  States  v. White,  766 F.2d  22,  24-25 (1st  Cir. 1985);          ______________     _____          Kepreos,  759  F.2d  at 964.    Although  we  have more  recently          _______          suggested that we might  be willing to reexamine this  holding in          light of recent  precedents in other  circuits, United States  v.                                                          _____________          L pez-Pe a, 912  F.2d 1536, 1541  (1st Cir. 1989),  cert. denied,          __________                                          ____________          501  U.S. 1249 (1991),  we need not  do so here  because we agree          with the trial court that Shay Jr. withdrew his Rule 12.2 notice.                                         -24-          Moreover,  since Shay Jr. did not restate his intention to pursue          a diminished capacity defense until  the trial was well underway,          we  take no issue  with the court's  conclusion that  it would be          unfair  to the government to  allow Shay Jr.  to attempt to offer          evidence on the subject of diminished capacity.   Accordingly, we          determine that the district court did not abuse its discretion in          preventing  Dr.  Phillips  from  testifying  on  the  subject  of          diminished capacity.10                                        ____________________          10   Shay Jr.'s argument is  also defective because he  failed to          make  a  timely offer  of proof  with  respect to  his diminished          capacity evidence.   See Fed.  R. Evid. 103(a)(2).   Although  he                               ___          produced  a report from Dr. Phillips, that report did not discuss          the subject  of diminished  capacity.  Moreover,  defense counsel          made no other offer of proof concerning the evidence she proposed          to offer on  the subject.   Accordingly, Shay  Jr. forfeited  his          right  to challenge the evidence on appeal.  Id.; accord Bonneau,                                                       ___  ______ _______          970 F.2d at 933 ("A party may not claim that evidence was wrongly          excluded unless the substance  of the evidence was made  known to          the trial court or the offer was apparent from the context.").                                         -25-                                  III.   CONCLUSION                                  III.   CONCLUSION                                         __________                    For the reasons described  herein, the case is remanded          to  the district  court for  further proceedings  consistent with          this opinion.11   We retain jurisdiction  to review the  district          court's conclusion as to whether it should permit Dr. Phillips to          testify.                                        ____________________          11  In  light of this result,  we need not, at  this point, reach          defendant's sentencing arguments.                                         -26-
