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The Champion

April 2003 , Page 56 

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RICO Report

By Barry Tarlow

Read more RICO Report columns.


Stubbornness as a defense to intent and creative use of expert testimony

Easily led and stubborn. Perhaps not a particularly good combination of attributes to have if you happen to be a defendant accused of fraud. However, with a qualified expert witness, they can be the basis of an innovative defense.

In a unanimous opinion authored by Judge Myron Bright of the Eighth Circuit sitting by designation, the Ninth Circuit reversed a conviction for bank fraud based on the district judge's rejection of psychiatric testimony that the defendant was easily led to credit facts that he wished to believe and then prone to stubborn intransigence in his beliefs and not easily amenable to rational persuasion. The panel affirmed that this testimony was not only admissible but, if credited by the jury, would have undermined the prosecution's contention that Finley acted with the specific intent to defraud. United States v. Finley, 301 F.3d 1000 (9th Cir. 2002). Although the holding is capable o

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