FRE 801(d)(1)(B)(i)

In January 1964 two armed men robbed the Mutual Savings and Loan Association of Alhambra and a police officer who entered during the robbery was killed. Petitioner Gilbert was convicted in the Superior Court of California of the armed robbery and the murder. There were separate guilt and penalty stages of the trial before the same jury, which rendered a guilty verdict and imposed the death penalty. The California Supreme Court affirmed the judgment. Gilbert was arrested in Philadelphia by an FBI agent and later provided handwriting exemplars to another agent during questioning about Philadelphia robberies in which the robber used a handwritten note. The exemplars were admitted in evidence at his California trial over objection. Officers entered Gilbert's apartment without a search warrant after receiving information from an accomplice that led them to believe a suspect might be inside. They found and seized photographs of Gilbert in an envelope on the top of a bedroom dresser. Eyewitnesses viewed the photographs within hours after the crime. Sixteen days after his indictment and the appointment of counsel, Gilbert was exhibited at a lineup conducted without notice to his counsel in a Los Angeles auditorium. Three eyewitnesses to the Alhambra crimes who identified Gilbert at the guilt stage had observed him at the lineup. The manager of the apartment house in which incriminating evidence was found also identified Gilbert in the courtroom and testified to her prior lineup identification. Eight witnesses at the penalty stage who were not eyewitnesses to the Alhambra crimes but to other robberies allegedly committed by Gilbert likewise identified him both in court and at the same lineup. The California Supreme Court affirmed the conviction in 63 Cal. 2d 690. The United States Supreme Court granted certiorari and set the case for argument with related matters.

The litigation arose from the July 13, 1982 crash of a Navy T-34C Turbo-Mentor aircraft at Middleton Field, Alabama, during touch-and-go exercises. Lieutenant Commander Barbara Ann Rainey, a flight instructor, and her student Ensign Donald Bruce Knowlton were killed when the plane banked sharply right after a premature left turn, lost altitude, and crashed. The surviving spouses of the pilots filed a product liability action against Beech Aircraft Corporation, the manufacturer, and Beech Aerospace Services, Inc., which serviced the plane, alleging that a defect in the fuel control system caused an engine rollback and loss of power. Because the aircraft was destroyed and there were no survivors, the cause of the accident could not be determined from the available evidence. The defense presented an investigative JAG Report prepared by Lieutenant Commander William Morgan pursuant to Navy authority. The report contained sections on findings of fact, opinions, and recommendations, including statements that the engine was operating at reduced power at impact and that the most probable cause was the pilots' failure to maintain proper interval, while noting the possibility of rollback. Five or six months after the accident, plaintiff John Rainey, the deceased pilot's husband and a Navy flight instructor, sent a letter to Morgan outlining his own investigation and concluding that the most probable cause was a loss of useful power due to a pneumatic sensing or fuel flow malfunction. At trial, the defense called Rainey as an adverse witness and questioned him about portions of the letter concerning his wife's attempt to cancel the flight and a hard right turn by the aircrew. On cross-examination, the court sustained an objection to a question asking whether Rainey had stated in the letter that rollback was the most probable primary cause. After a two-week trial, the jury returned a verdict for the defendants. A panel of the Eleventh Circuit reversed, and on rehearing en banc the court divided evenly on one issue while unanimously holding that the district court erred in restricting cross-examination. The Supreme Court granted certiorari.