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US v. Van Meerbeke

"Fife was called to testify on March 25, 1976. In the course of describing his exploits, he identified the suitcase that had contained the opium, which was then introduced into evidence. Fife pointed out that small pieces of opium remained in the suitcase mixed with bits of fiberglass. At some point during his testimony on March 25, Fife removed a small chip of opium from the suitcase and swallowed it. Though his action was not perceived by either prosecution or defense counsel, it was observed by the trial judge, Judge Bramwell, and possibly by some jurors as well. Judge Bramwell did not comment on Fife’s behavior or take any other action in response to this untoward incident.

When trial resumed on March 29, Fife continued his testimony. Apparently, bits of opium had fallen to the floor from the suitcase and remained in the witness box. Following a recess, a defense counsel observed Fife pick up a small piece of opium from the floor and place it in his mouth. The attorney did not immediately object, but questioned Fife about the incident during cross-examination. Fife admitted he had ingested small amounts of opium both that day and on March 25. The defendants immediately moved for a mistrial, or to strike Fife’s testimony. Judge Bramwell denied both motions, and in so doing, revealed for the first time his own observations of Fife’s behavior on March 25. He stated:

There was nothing This is a person who used a lot of drugs. It is true when the suitcase was in front of him he took a small snip, the Court saw him and the jury saw him…”

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