The 10th Circuit Court Appeals addressed the 6th Amendment Right to a speedy trial in U.S. v. Seltzer. Though the constitutional protections under New Mexico law are typically more expansive than federal law, the 10th Circuit in the Seltzer case appears more respectful of the 6th Amendment than the recent New Mexico Supreme Court decision of State v. Garza.

In State v. Garza, the court set forth a sliding scale related to a criminal defendant's right to a speedy trial in New Mexico. The court suggested speedy trial parameters as follows: 1) 12 months for simple cases, 2) 15 months for cases with intermediate complexity, and 2) 18 months for complex cases. The New Mexico Supreme Court even allowed for some leeway in the these standards by stating that these time limits were mere thresholds for further inquiry.

The 10th Circuit in U.S. v. Seltzer set forth a number of considerations in the determination of whether or not a defendant's right to a speedy trial have been violated. The Court stated that a delay of more than one year from the date of arrest or indictment, whichever is earlier, was "presumptively prejudicial" to the defense. The court noted that in particularly complex cases, longer delays, even a two year delay might not be unreasonable. The court noted further that in straightforward cases, even a minor delay might be considered prejudicial and unreasonable.

The Court found that the charges against the defendant Seltzer related to counterfeiting, drug possession, and firearm possession by a felon were not complex and a delay of more than one year was presumptively unreasonable. The Court stated that even lesser delays might prove prejudicial in cases involving eyewitness testimony.

Once the presumption of prejudice has been found, it is up to the State to "provide an inculpable explanation for delays in speedy trial claims." The Court cited the 1972 United States Supreme Court case of Barker v. Wingo as follows: "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." Thus the burden quickly shifts to the State to show a legitimate reason for any delay impacting the defendant's speedy trial rights. This burden becomes harder to meet in cases involving simple charges.

Unlike the New Mexico Court in State v. Garza, there is a heavy burden on the State to justify any delay impacting the defendant's 6th Amendment right to a speedy trial. New Mexico typically zealously protects the constitutional rights of its citizens. The protections under New Mexico's Constitution are generally much broader than under federal law. In State v. Garza, the burden appears to be on the defendant to prove prejudice, rather than on the State where the burden belongs. Hopefully, the New Mexico Supreme Court will take the lead of the 10th and revisit the 6th Amendment rights that are so important to due process and a fair trial.

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The New Mexico Supreme Court addressed expert testimony given by police officer in DWI/DUI trials in State v. Marquez. The case involved an Albuquerque police officer who gave testimony regarding the statistical correlations between a suspect's performance on field sobriety tests and the probability of a blood alcohol score over .08.

The defendant's attorney had argued that the officer was not qualified as an expert to testify on statistical probabilities under the U.S. Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals. Interestingly, the State conceded that the testimony given by the officer was improperly admitted. Instead, the State argued that the admission of the evidence was harmless because there was sufficient legally admitted evidence for the conviction.

The case of State v. Marquez is interesting because the New Mexico Supreme Court found that the testimony was unnecessary for the conviction. The Court cited New Mexico Uniform Jury Instruction 14-4501 along with the well established New Mexico case law suggesting that the true standard is whether the defendant's ability to drive was impaired to the slightest degree.

The testimony of the officer undoubtedly would have established this without the statistical testimony. The officer testified that she saw the defendant stumble out of a bar, get in his car, almost strike another vehicle as he backed out of his parking space, and then back 60 feet into oncoming traffic on a congested and dangerous street. In addition, the officer testified that the defendant was slow to respond to questions, fumbled with his identification, was slow getting out of his vehicle, had to brace himself against his vehicle for balance and generally performed poorly on the field sobriety tests.

In light of impaired to the slightest degree standard, the statistical evidence was hardly necessary. However, the prosecutor got a little greedy perhaps and solicited the testimony anyway over the objection of the defense attorney. Basically, the officer gave testimony on statistical studies suggesting that poor performance on the field sobriety tests correlates to a high probability that the defendant's breath score exceeded the .08 limit.

The Court recognized that because of the impaired to the slightest degree standard, the breath alcohol score is not necessary for a DWI/DUI conviction in New Mexico. The Court further recognized that it is common knowledge that a breath score of over .08 is an indication of impairment. Thus, the testimony of the Albuquerque police officer, though unnecessary for a conviction, could have confused and misled the jury. In short, the testimony may have distracted the jury from its role of weighing properly admitted evidence by undue attention to the wrongfully admitted statistical evidence. In essence, the statistical evidence improperly undermined the credibility of the defendant.

Because the evidence was improperly admitted and could have confused or distracted the jury, the defendant's DWI conviction was reversed. The case was remanded for a new trial. In light of the evidence available to the State, and the Court's ruling that the breath alcohol score is unnecessary, the outcome of the new trial is likely to be the same as the first.

The case is somewhat paradoxical that the Court further restricts the bounds of admissible DWI evidence while at the same time reiterating its position that such evidence is unnecessary anyway. However, the case should prove important in cases where the evidence of intoxication is not so overwhelming as was the case here.

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There are often delays in indictment on felony cases in Albuquerque, and throughout New Mexico. We often get questions regarding the legality of the delay in indictment following the first appearance.

When a felony action is commenced in Albuquerque, the case typically begins in the Metropolitan Court on a first appearance. During the first appearance, the court will address the statement of probable cause. The burden for probable cause is pretty low at this stage. The statement of probable cause need only establish that a crime was committed and that logically a jury could find the defendant guilty based upon that statement if true.

It is rare that the court would find probable cause lacking. In cases where probable cause is found, the Albuquerque Metropolitan Court judge will first address bond. Assuming that bond has been satisfied, the judge will set 60 day conditions of release. These conditions are fairly routine such as no further violations of the law, no contact with the alleged victim, no return to the scene of the crime, no deadly weapons, no drugs or alcohol, and no leaving the County without approval of the Court.

Many people accused of crimes believe that once the 60 days is up, the State is barred from taking the case to grand jury. That is not the case. The only consequence of failing to take the case to grand jury within the 60 day conditions of release is that those conditions lapse. The State is still free to bring the charges at a later date, and unfortunately for the defendant over whom the charges are hanging, often a much later date.

The only deadlines for getting the case to grand jury and formal charges filed is the statute of limitations. The statute of limitations for criminal cases in New Mexico are quite lengthy as set forth in by statute as follows:

• • Capital or 1st degree violent felony - no limitation,
• • 2nd degree felony - 6 years from the date of the crime,
• • 3rd or 4th degree felony - 5 years from the date of the crime,
• • Misdemeanor - 2 years from the date of the crime, and
• • Petty Misdemeanor - 1 year from the date of the crime.

These deadlines are pretty lengthy so that a delay generally does not mean much regarding the intentions of the District Attorney. However, in less serious cases, no news is good news. In the meantime, if you are in this situation, you should keep your head down and avoid any contact with law enforcement. This means at a minimum staying out of trouble. It would be unfortunate to raise a red flag on an old case due to subsequent violations of the law.

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The 10th Circuit Court of Appeals ruled that a common drug supplier does not make a conspiracy. In U.S. v. Caldwell, Michael Caldwell was convicted for conspiracy to distribute marijuana with two other individuals based upon the mere presence of a common supplier to Caldwell and another party. The jury determined that the three men had entered into a single a three party conspiracy to distribute at least 100 kilograms of marijuana over a two-year period.

The defendant admitted to a conspiracy with his supplier but denied the conspiracy with respect to the third party. It may sound like an inconsequential rhetorical argument but the finding of the tri-party conspiracy had significant consequences for Caldwell's sentencing. Because of the jury's erroneous finding of a three party conspiracy, the quantity of marijuana involved in the alleged conspiracy pushed Caldwell into a higher sentencing category.

The facts are pretty straightforward. Caldwell had purchased marijuana from Herrera. Caldwell then sold the marijuana to other users. A friend of Caldwell's, Anderson, source had dried up. Caldwell introduced therefore introduced Anderson to Herrera. Anderson then began buying his marijuana from Herrera. Caldwell received no economic benefit for the introduction nor was he involved in the exchanges between Herrera and Anderson other than the initial introduction.

The 5th Circuit Court of Appeals found that no single tri-party conspiracy existed. Instead, the government had shown only the existence of multiple conspiracies. The court stated that it is often difficult to distinguish between a single large conspiracy and several small conspiracies. However, the Court stated that it would not uphold the finding of large scale conspiracy by "piling inference upon inference...The evidence supporting the conviction must be substantial and do more than raise a suspicion of guilt."

Citing United States v. Sells (10th Cir. 2007), the Court set forth the following requirements for a finding of a conspiracy:

(1) two or more persons agreed to violate the law, (2) the defendant was aware of the essential objectives of the conspiracy, (3) the defendant knowingly and voluntarily became a part of the conspiracy, and (4) the alleged co-conspirators were interdependent.

The pivotal question according to the court was the existence of interdependence of the parties which is present only where the co-conspirators intended to act in concert for their shared and mutual benefit. Citing U.S. v. Evans (10th Cir.1992).

The court boiled the issue down to the question of whether "the mere introduction of a common supplier, made by one drug dealer to another, is sufficient to create a single conspiracy among all the dealers?" The court concluded that it was not.

The finding of a single large scale conspiracy created an erroneous factual basis for Caldwell's sentence. The court should not have included quantities sold by Herrera to Anderson. The case was therefore remanded to district court for resentencing based purely upon the transactions established at trial between Caldwell and Herrera.

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A case in Ohio's Supreme Court recently set forth a framework for protection against the unlawful search & seizure of a suspect's cell phone. The case hopefully signifies a legal trend that should will across the country, including Albuquerque and the remainder of New Mexico.

The case of State v. Antwuan Smith established a warrant requirement prior to the search of person's cell phone. This marks the first time that the Supreme Court of any state has addressed this issue.

It is well established that searches conducted without a warrant are presumed unreasonable. There are exceptions related to officer safety and preservation of evidence which allow the officer to search the area within the arrestee's immediate control. If there is no issue of officer safety or preservation of evidence, then the exception no longer applies. It is equally well established that an officer may search any containers or articles on the defendant' person such as purses. Law enforcement have attempted to equate a person's cell phone to a purse or in the alternative to argue that search of a cell phone is necessary for the preservation of evidence. The Supreme Court of Ohio has refuted these arguments.

The Court's analysis rested upon the classification of a cell phone. A 5th Circuit Court of Appeals case analogized a cell phone to a closed container in the possession of the accused. However, this ruling partly arose as a result of the defendant's legal theory which in part conceded the analogy. The United States District Court for Northern California suppressed the warrantless search of a cell phone. The court reasoned that cell phones are far more than communication devices. Instead, they store immense volumes of personal information and the court said they were more akin to laptop computers which have far greater privacy protections than do purses.

The Ohio court took the latter position. As a result, the evidence seized from the warrantless search of the cell phone was ordered suppressed. The court's ruling recognized that the defendant's phone was not a smart phone but rather a less sophisticated model with phone, texting and camera capabilities.

The Ohio court stated that the 4th Amendment serves to protect the reasonable and justifiable expectations of privacy. The court found that citizens have reasonable expectation of the privacy of their cell phones. Moreover, there is no issue of officer safety or preservation of evidence that would suggest a warrantless search of a cell phone.

The law often trails behind the development of technology. The Ohio Supreme Court serves notice to law enforcement its own state as well those in other states that the warrantless search of cell phone which has become routine in criminal investigations will likely be challenged under the 4th Amendment. The issue is likely to become even more prevalent as many individuals now possess a variety of devices such as I-Pods, flash drives, and other devices capable of voluminous data storage.

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Federal prosecution for immigration violations reached a record high of 169,612 in 2009. According to the study out of Syracuse University, this number represents more than ½ of all criminal cases brought by the federal government.

Prosecution of immigration violations is up by almost 16% and reflects the Bush era policies of strict and speedy enforcement of the immigration laws. Many of the cases represent illegal reentry cases. Others related relate to crime related bases for removal and deportation. The Bush administration greatly increased the number of I.C.E (Immigration and Customs Enforcement) agents, Border Patrol agents, and federal prosecutors for purposes of enforcement.

Much of the increase is also, according the New York Times, related to the Department of Justice program Operation Streamline which relies on speedy and large-scale processing of plea bargains in immigration cases. It is suggested that the Department of Justice goes after the relatively simple immigration cases since these cases are very rapidly processed and closed compared to other cases. White-collar criminal cases take an average of 460 days for disposition. Narcotics cases take 333 days. By contrast, the immigration cases typically reach disposition in 2 days.

The success of the Operation Streamline program has now met with constitutional challenges particularly in Arizona which accounted for more than 22,000 of the federal criminal immigration cases in 2009. The 9th Circuit Court of Appeals recently ruled in U.S. v. Roblero-Solis that the process of mass pleadings is a violation of Rule 11 of the Federal Rules of Criminal Procedure regarding the taking of pleas in federal court. Interestingly, despite the finding by the court that the plea process was a violation of Rule 11 which fundamentally a Due Process protection, the convictions in the case were upheld since the defendants failed to show that the process affected their decisions to enter the pleas.

The growth in the number of immigration prosecutions shows that the Obama Administration is equally serious about immigration enforcement. In fact, the data from the Syracuse study indicate that the rate of prosecution has accelerated. These numbers appear to conflict with the Administration's public statements regarding immigration reform. Perhaps, the tough position on enforcement is seen as necessary for progress on future reform.

In any event, it is clear that immigration enforcement will remain a high priority at the Department of Justice for some time to come. In addition, though the mass plea process under Operation Streamline is a violation of Rule 11, it appears that the process will stand in light of the ruling in Roblero-Solis.

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In U.S. v. Pena-Montes, the 10th Circuit Court of Appeals addressed the legality of questioning under the 4th Amendment of an individual following a traffic stop. The case involved the prosecution of the defendant Jose Luis Pena-Montes for illegal reentry into the United States following his arrest following the traffic stop.

During the course of the traffic stop based upon the officer's belief that the car in which Pena-Montes was a passenger lacked dealer plates. Upon further investigation, the officer determined that the car did have dealer plates. However, he wrongfully believed that the use of dealer plates was restricted to certain times of day. Because there had been auto thefts from Albuquerque car dealers in the recent past, he suspected that the vehicle was stolen.

Due to his suspicions, he continued to question the driver. He then turned his questioning to Pena-Montes questioning him on his identity. Pena-Montes gave false and misleading answers regarding his identify. Due to the false identity provided by Pena-Montes, the officer arrested him for concealing identity.

Upon arrest, Pena-Montes was transported to and identified by Albuquerque Police identification. Upon identification, it was determined through the NCIC national database that he had previously been convicted of a felony in California and subsequently deported.

Based upon these findings, Pena-Montes was indicted on one count of illegal reentry of a removed alien following a felony conviction in violation of 8 U.S.C. §1326(a) and (b). Pena-Montes moved for suppression of all evidence derived from the traffic stop, including his identity. The district court denied his Motion finding that the questioning following the stop was not illegal under the 4th Amendment.

The Court of Appeals reversed the District Court holding that the officer had violated the 4th Amendment by continuing to question the occupants of the vehicle once the basis for the stop, illegal plates, was found to me missing. The Court provided an excellent analysis of search and seizure law in New Mexico

The court began by citing the 2008 10th Circuit case of United States v. Rodriguez-Rodriguez for the assertion that "A routine traffic stop is indisputably a seizure within the meaning of the Fourth Amendment." Citing United States v. Winder (10th Cir. 2009), the Court set forth the requirements under Terry v. Ohio that the stop must be justified at its inception and the resulting detention must be reasonably related to the basis for the stop.

Under this standard, the Court found that the continuing questioning of both the driver and Pena-Montes did violate the 4th amendment prohibitions against illegal search & seizure since questioning continued following the determination that the basis for the stop proved to be lacking. Unfortunately, this may not have saved Pena-Montes as will be seen in part II of this blog.

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It is estimated that drug violence has claimed over 16,000 lives in Mexico during the past three years. These deaths have resulted from a virtual war between the Mexican government and the drug cartels. The cash crop is marijuana.

The cartels are turning increasingly to child runners. Mexican drug gangs are recruiting children as drug runners and mules. The Texas Department of Public Safety refers to the child recruitment campaign as "scare and awe." The awe comes in the form of the promise of easy money and status while the fear comes in the form of torture and death.

Several states now have medicinal marijuana programs, including New Mexico. It is estimated that California has up to 2000 medical marijuana dispensaries. There is now even a Cannabis University, Oaksterdam University, that teaches people how to grow and dispense weed. Yet New Mexico, and Albuquerque in particular, continues to prosecute possession very aggressively. God forbid, you have over 8 ounces in your possession because you will likely then be charged with distribution.

Lives continue to be ruined on both sides of the border as a result of the war on drugs and the prosecution of marijuana possession. Thousands of lives have been lost, children are exploited and even tortured, immigrants are deported routinely for marijuana possession, people are hauled into court for minor possession, and those with more than 8 ounces can face 2nd degree felony trafficking charges carrying up to 9 years in prison.

No amount of reason has worked thus far to alter the enforcement of the marijuana laws. Perhaps, reason simply lacks the persuasive force of profits. This is particularly so when the insurance industry is involved. Due to the explosive growth of the medical marijuana industry, a new cottage insurance industry catering to the needs of the medical marijuana industry has sprouted up. Insurance is now available for everything from standard worker's compensation to crop theft insurance.

Medical marijuana is becoming big business California leads the country with as many as 2000 medical marijuana dispensaries. Colorado is a distant second with 60. However, the number is growing in the states that have legalized medical marijuana. You can bet the industry is growing when the insurance industry has taken note.

The insurance industry is generally much maligned and for good reason. Maybe, the very greed that is generally so repulsive in the insurance industry will lead to positive social change as the medical marijuana industry takes root. Perhaps, similar profit motives will dictate more enlightened marijuana policies across the board as the insurance industry spots new profit centers. Where the logic of saving lives, saving children from exploitation and torture, saving immigrants from deportation for minor possession, and saving otherwise law abiding citizens from often harsh and inhumane prosecution has fallen on deaf ears, the logic of capitalism will hopefully carry the day. This is a rare occasion when I am pulling for the insurance industry to make more money.

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The felony process can be pretty confusing for accused persons in Albuquerque and throughout New Mexico. In addition, the process differs from county to county. The process below applies to the process followed by the district attorney's office in Albuquerque.

A felony criminal action may begin with an arrest or a felony warrant. If you are arrested, you are taken into custody until your first appearance or until you are able to post bond. If you are able to post bond, then you are released pending the first appearance which will generally occur within a few days of your release.

If you are unable to post bond, then the prosecutor must take the case to the grand jury within 10 days of arrest. Failure to bring the case to grand jury within 10 days will result in release from custody. It does not mean the case goes away. It simply means that the State must release you from custody pending the grand jury investigation.

If you are able to post bond, the case will be set for first appearance. At the first appearance, the prosecutor will present a statement of probable cause outlining the charges against you. The statement of probable cause requires no presentation of evidence. The defendant may dispute probable cause but again the statement is taken at face value and the statements very rarely fail to state adequate probable cause for the arrest. It is simply a statement of the case by the prosecutor or the arresting officer. These are taken at face value by the judge.

Assuming the judge finds probable cause, the judge will then set conditions of release and bail. The conditions of release for felony cases typically include the following terms:

1. The defendant may no possess firearms or dangerous weapons,
2. The Defendant will not return to the location of the alleged incident,
3. The Defendant will not possess or consume alcohol/illegal drugs or enter liquor establishments,
4. The Defendant will not violate federal, state or local criminal law,
5. The Defendant notify the Court of any change of address,
6. The Defendant will not leave the jurisdictional county of the court,
7. The Defendant will maintain contact with his or her attorney,
8. The Defendant will have no contact with the alleged victim or any witnesses,
9. The Defendant will no drive without a valid license.

The conditions of release continue for 60 days or until the date of arraignment if the Defendant is eventually indicted. This does not mean the case goes away after 60 days if the prosecutor has not indicted the Defendant by that time. It simply means the conditions of release lapse.

The prosecutor has very liberal time limits on obtaining the indictment. The only limitation is set by the statute of limitations which are very long in criminal cases. On rare occasions, a Motion to Dismiss for pre-indictment delay may be filed but these are very difficult to win.

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The United States Supreme Court finds that the 6th Amendment right to confrontation requires that an analyst who tested drugs in the lab must testify in court to get those lab results entered into evidence. This important case will impact both drug cases and DWI/DUI cases in Albuquerque and throughout New Mexico.

The United States Supreme Court case of Melendez-Diaz v. Massachusetts involved the introduction of evidence by the prosecution of laboratory certificates from the state laboratory regarding cocaine connected to the defendant. The analyst that conducted the testing of the cocaine was not present at trial.

The defendant objected to the admission of the lab certificate without in-court testimony by the lab analyst. The defendant argued that the practice was a violation of the 6th Amendment confrontation clause as set forth in the 2004 Supreme Court case Crawford v. Washington.

The United States Supreme Court in Melendez-Diaz v. Massachusetts agreed that the practice of admitting lab certificates in lieu of or in the absence of foundational testimony was a violation of the confrontation clause as set forth in Crawford.

The court rejected the prosecution's arguments that these analyst were not accusatory witnesses. The court stated that there was no exemption from the confrontation clause for those witnesses testifying to facts other those observed at the crime scene. The court found any witness who offers his testimony is subject to the confrontation clause.

The court also refused the prosecution's argument that these certificates are excluded from the hearsay rules as official business record. Likewise, the Court refused the argument that these lab analysts are neutral and unbiased simply applying scientific methods to the substance in question. Finally, the court stated that it was immaterial that the defendant himself could have subpoenaed the analyst to court holding that it was the State's burden to bring their witnesses to court for foundational purposes.

The Melendez case could have significant impact on cases throughout the State of New Mexico. It appears that the ruling will cover the admission of lab results from New Mexico's scientific lab division in both drug cases and DWI/DUI cases. The cases are winding their way through the New Mexico courts now as the Courts here attempt to deal with the Melendez-Diaz rulings.

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The recent New Mexico Supreme Court case of State v. Joshua Garcia makes clear that Article II, Section 10 of New Mexico's Constitution extends greater protection from illegal search and seizure than that set forth in the 1991United States Supreme Court case of California v. Hodari D.

State v. Garcia involved a domestic violence call whereby the caller indicated that she wanted an individual named Joshua Garcia removed from her home. Upon responding to the call, the officer saw a man walking across the street near the caller's address. The officer immediately flashed his spot light on the unidentified man and told the man to stop. The officer had no prior knowledge of the identification of the defendant. Garcia continued walking past the patrol car and which point the officer again instructed him to stop. Garcia ignored the instructions of the officer and continued walking. The officer sprayed Garcia twice with pepper spray. As Garcia continued walking, the officer saw something fall from his pocket at which time the officer tackled and handcuffed Garcia. The article that fell from Garcia's pocket was identified as crack cocaine.

Garcia was charged which possession of crack cocaine. The question that arose was whether the evidence of crack cocaine should be excluded from evidence as the fruit of an illegal search and seizure by the officer. The District Court refused to suppress the evidence under the "fruit of the poisonous tree" doctrine. Garcia pled guilty to the charges reserving his right to challenge the court's suppression ruling.

The Court followed the ruling set forth in the 1997 New Mexico Supreme Court case of State v. Gomez. State v. Gomez explicitly recognized that New Mexico's constitutional protections could at times exceed the protections afforded under federal law. Upon applying the law set forth in Gomez, the Court found in Garcia that New Mexico's Constitution, Article II, Section 10 provided greater protection than that set forth in Hodari D.

In Hodari D, officers drove up on a group of youths huddled together. Upon seeing the patrol unit, the youth took flight. The officers pursued the youth on foot. During the pursuit, one of the youth discarded a rock of crack cocaine. The officer tackled the youth and recovered the discarded crack. The United States Supreme Court found that the youth was not seized at the time the crack was discarded. The Court determined that a seizure is defined by the reaction of the suspect. Because the suspect fled, there was no seizure despite the fact that the pursuit lacked any reasonable basis from its inception. Because there was no seizure, the evidence was not illegally seized.

The New Mexico Court in Garcia reverted back to the law as previously set forth by the United States Supreme Court in the 1980 case of U.S. v. Mendenhall. Mendenhall stated that a person is seized when a reasonable person under the circumstance would not feel free to leave. Utilizing the Mendenhall standard, and the protections set forth in Article II, Section 10, the Court found that Joshua Garcia was illegally seized at the moment the officer shown his spot on him and commanded him to stop. Because there was no reasonable suspicion for the stop, the search and seizure that ensued was illegal, and the crack cocaine should have been excluded from evidence.

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