                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-2445
                                    ___________

John Byron Newman,                       *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Frank X. Hopkins,                        *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: July 3, 2000

                                   Filed: April 27, 2001
                                    ___________

Before WOLLMAN, Chief Judge, RICHARD S. ARNOLD, Circuit Judge, and
      WOLLE,1 District Judge.
                              ___________

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

      1
        The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa, sitting by designation.
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.


                                           -2-
                                            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 self-
incrimination 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


      2
          As 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) .

                                            -3-
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

                                           -4-
      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.




                                          -5-
       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

                                          -6-
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.


                                            -7-
       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.




                                          -8-
