Seattle University
School of Law
Evidence
• Fall 2004
Prof. Pedro A. Malavet
Practical Project
Feedback Memorandum
All students submitted their practical projects either within the original deadline or within the brief extensions that I granted because of individual exigent circumstances. All students passed the project and will earn the points allocated therefor in my grading scheme.
The most common form mistakes were an absence of a certificate of service (a certification that you had notified, i.e., sent or given a copy of your motion to the opposing side and, under 412, to the alleged victim or her counsel). Another common mistake was to refer to the United States of America as the “plaintiff.” Since this is a criminal case, the USA is the prosecuting authority and is simply identified in the caption as the United States of America.
Substantively, this is essentially the same feedback memo that I posted for my Florida students in the Fall of 2003. I have, however, made some changes to address more specifically the content of the practical projects for the Fall of 2004, and my discussions with many of you regarding individual projects.
In preparing your motions, as in resolving any evidentiary question in this course, you should start with your class materials: casebook, rules supplement and notes (your own and those I post for you in the website). Therefore, the readings on this subject in your casebook at pages 492-495 were very important. Additionally, the webnotes supplemented the readings, especially by providing the discussion points for Problem 5-K at page 493.
As a matter of structure, I have given you a very particular way to discuss the material, and you should use it. While original thinking is important to scoring well in graded projects, like the exam, you should also show that you are able to use the structure that we used to deconstruct problems during the entire semester.
In this feedback memorandum, I give you the general structure and legal content of the discussion. I also posit some particular arguments that should be made. However, I will not discuss the facts of the case in the level of detail that a good motion (or, for that matter, a good exam answer) would have included.
It was important to identify the two other acts of sexual conduct as the organizing basis of your discussion. This would give your motion, or exam essay, a basic focus and justify complete analysis. As I have told several of you during our office conversations, you have two sexual encounters to which the defense wishes to refer in addition to the alleged rape. As to the one preceding the alleged rape, both parties agree that it occurred, that it involved the alleged victim and an identified male, and that it was consensual.[1] As to the alleged rape, the parties agree about when and where it occurred, and who the parties were, and disagree as to the presence or absence of consent. As to the third act (the second “other act”) the parties disagree on the timing, though not on the identity of the participants or its consensual nature. The acts are proved by a complex evidentiary picture that includes the physical evidence pointing to sexual encounters between the alleged victim and two men other than the defendant that was gathered during the sexual assault examination; medical/other expert reports; expert opinion and factual testimony related to the examination of the alleged victim and to the gathering and examination of the physical samples; and factual witness testimony by the alleged victim and the two men (and perhaps others with personal knowledge pertinent to those sexual encounters).
Huddleston, discussed in Chapter 4, in the notes at pages 489-490, explains the general rule regarding the occurrence of other acts: it is a matter of conditional admissibility under FRE 104(b) so the judge decides merely if the offering party has produced enough evidence so that a reasonable jury could find that the act occurred, as the offering party claims (the jury must make a finding by a preponderance). What the acts might be admitted to prove, is a matter for the judge.
As originally passed, FRE 412(c) required the judge to make an evidentiary finding regarding the occurrence of the alleged acts prior to admissibility, notwithstanding FRE 104(b). But the language was amended in 1994 to eliminate that provision. As the Advisory Committee explains:
One substantive change made in subdivision (c) is the elimination of the following sentence: "Notwithstanding subdivision (b) of Rule 104, if the relevancy of the evidence which the accused seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the hearing in chambers or at a subsequent hearing in chambers scheduled for such purpose, shall accept evidence on the issue of whether such condition of fact is fulfilled and shall determine such issue." On its face, this language would appear to authorize a trial judge to exclude evidence of past sexual conduct between an alleged victim and an accused or a defendant in a civil case based upon the judge's belief that such past acts did not occur. Such an authorization raises questions of invasion of the right to a jury trial under the Sixth and Seventh Amendments. See 1 S. Saltzburg & M. Martin, Federal Rules Of Evidence Manual, 396-97 (5th ed. 1990).
So, it is fairly clear that the question of the occurrence of the acts is a matter of conditional admissibility under FRE 104(b), as required by Huddleston. In United States v. Platero, 72 F.3d 806 (10th Cir. 1995), the 10th Circuit so ruled, after addressing the Huddleston (104(b)) v. Bourjaily (104(a)) issue.
That said, the determination of the proper purposes to which the evidence might be put is clearly a question of law for the court to resolve. FRE 412(c)(2) expressly requires the court to hold a hearing “before admitting evidence under this rule.” As I have indicated in class, I am not all that picky as to whether you call the legal part of the finding, which is essentially all that is discussed next, a 104(a) question, or a 104(b) legal question, a la Summary Judgment; but the latter is probably the better view. In this case you can also refer directly to FRE 412(c)(2), of course.[2]
It is very important to
identify all possible uses of the evidence at the relevance stage, legitimate
and illegitimate, fair or unfair. The offering party must naturally identify
the permissible uses of the evidence it is offering, but it should also
identify impermissible uses in order to assure the court that it is not
offering the evidence for that purpose, and to overcome possible objections.
The objecting party identifies impermissible/unfair uses of evidence in order
to support its objections.
Federal Rule of Evidence 402 provides that irrelevant evidence is not admissible, and that only relevant evidence is potentially admissible, subject to other exclusionary rules. FRE 401 defines “relevance.” At page 72, your casebook explains “that evidence is relevant if it makes the point to be proved more probable than it was without the evidence [by meeting a minimal, commonsensical, standard of logic and reason]. Here is the most lenient standard of all-the one most favoring admissibility. It is the one adopted in FRE 401.” (CB-74).
Few students addressed the relevance/materiality dichotomy. In the exam, you must develop these themes in order to describe the strength or weakness of each evidential hypothesis. Students would have identified here that the prosecution’s emphasis of the SANE’s conclusions about the severity of the alleged victim’s injuries made counter-evidence relevant and highly material. Some students writing for the prosecution cleverly offered to stipulate that the injuries were not severe.
At page 492, the casebook authors describe that under the common law questions about the alleged victim’s sexual history were routinely allowed. The evidence was generally viewed as relevant for two issues: (a) the credibility of the complaining witness (on the absurd assumption that someone who engaged in sex lacked “character for truth telling,” i.e., was more likely than others to lie) and (b) consent. As your authors explain: “This sorry sexist tradition had it that such cross-examination bore upon both the credibility of the woman as a witness and the issue of consent.” (CB-492).
“Against this backdrop, ‘rape shield’ statutes were enacted in nearly every state. Congress did likewise by enacting FRE 412, which qualifies FRE 404(a)(2) by restricting the use of evidence relating to the sexual history of a sex crime victim.” (CB-492).
In modern practice, it is difficult to accept that prior sexual conduct by itself should be admissible to attack the witness’ credibility by questioning their character for truth telling (“character for truthfulness or untruthfulness” in the language of Rule 608). The argument here is that we have (probably) evolved and that we have gotten better at identifying evidence which really relates to character for truth telling. As note 1 at page 493 discusses, sex is normal, therefore its use to attack credibility should fail even the liberal rationality test of FRE 401 and 402. Alternately, you might find that there is some remaining, albeit quite marginal, relevance as to this issue (an argument that will not go over well in a modern courtroom).
One mistake that I noted
among the projects for the Fall of 2004 was that some students seemed to either
ignore the nature or limitations of the explanation regarding the use of sexual
conduct to challenge character for truth telling that is given above, or
believed incorrectly that FRE 608 governs all uses of character evidence when
cross-examining the alleged victim. While the sexual relationship(s) or acts
might legitimately be used to impeach the alleged victim, and perhaps other
witnesses for bias, that form of
impeachment is not governed by 608. Therefore, such references to 608 reflected
a misunderstanding of the character area generally, which is governed by 404,
and of impeachment, since 608 governs only one of five modes of impeachment.
Non-character forms of impeachment might be based on sexual relationships or sexual acts. For example, to the extent that the credibility attack raises a possible motivation to fabricate, it is naturally a bias/corruption type of attack, which is one of the “definitive” types of impeachment. Additionally, if the alleged victim were to deny the occurrence of the other acts during her testimony, which she appears likely to do as to one of them, another “specific” type of impeachment comes into play: contradiction. (CB-585, et seq.). Note 2 at page 493 in your casebook offers specific evidential uses of “sexual history” to attack the alleged victim’s credibility:
“2. Is the defendant constitutionally entitled to introduce evidence of the victim's sexual history to show a motive for making a false charge against the defendant? See Olden v. Kentucky, 488 U.S. 227 (1988) (reversible error to refuse to let defendant ask complainant whether she claimed rape in order to preserve relationship with boyfriend with whom she was cohabiting); Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 1985) (unconstitutional to preclude sexual history evidence of victim's incestuous relationship with brother "which may logically demonstrate" complainant's "bias, interest or prejudice" against defendant father for stopping relationship).” To expand on this “In Olden, the Supreme Court held that the defendant’s constitutional rights were violated by a ruling that blocked him from showing that the complaining witness may have fabricated her claim that defendant raped her in order to conceal from her boyfriend that she had spent time with the defendant. In Pennsylvania, the decision in Black reaches a similar result.”
These decisions are essentially based on Sixth Amendment Confrontation Clause concerns, which could then be related to the exception in 412(b)(1)(C). In this case, you might argue possible motivation(s) of the alleged victim falsely to accuse the defendant, in order to protect her existing relationship. The alleged victim might not wish her current boyfriend to find out about any consensual sexual encounters with men other than her current boyfriend. Even accounting for counter-arguments (such as those of “open” relationships) several reasonable evidential hypos regarding credibility could have been constructed. These hypos would allow the defense to explore the “sexual history” of the relationship between the alleged victim and her boyfriend, in order to show, directly or inferentially, that she would fabricate the rape claim in order somehow to preserve or promote that relationship. This is a broad exception in which the sexual act with the boyfriend then becomes one element in their relationship in addition to its possible use to show injury. The sexual act with the co-worker might also be tied to the relationship, in that it might create even more reason to hide or to characterize the encounter with the defendant as rape rather than consensual (this argument is weaker than the former, but together with the use to show injury may also pass muster under 403).
Additionally, the evidence regarding the (alleged) other sexual encounters may have relevance and thus is potentially admissible to prove consent. As I indicated in class, it is my view that this particular use, which is based on a propensity inference (someone who consents to sex with X is more likely to consent to sex with Y), survives the adoption of the Federal Rules of Evidence, specifically FRE 401 and 402. Otherwise, you would not really need FRE 412. As indicated in the Advisory Committee Notes related to the 1994 amendments:
Subdivision (a). As amended, Rule 412 bars evidence offered to prove the victim's sexual behavior and alleged sexual predisposition. Evidence, which might otherwise be admissible under Rules 402, 404(b), 405, 607, 608, 609, or some other evidence rule, must be excluded if Rule 412 so requires. The word "other" is used to suggest some flexibility in admitting evidence "intrinsic" to the alleged sexual misconduct.
The prosecutors would emphasize the irrational nature of the relevance hypotheses (perhaps winning as to general credibility attacks) and the at best marginal nature of relevance, even as to consent.
The defense would emphasize that it has legitimate credibility attack(s) to launch. Credibility attacks could naturally be launched during cross-examination of the alleged victim. However, further discussion of the sexual acts to argue for injury might have to wait until the defense case-in-chief, unless the court were to vary the order under 611(b).
Additionally, the defense would argue that the evidence is relevant to prove certain specific propensity inferences (certain actions in conformity therewith, especially consent) as opposed to one “bald” one. But, given that you are walking on sensitive ground (you know you are going to run into 412) you should craft the evidential hypothesis and accompanying 401/402 arguments in terms of the exceptions that you are trying to argue (in this case, non-character impeachment; 404(b)[2] other acts to show injury, rather than action in conformity therewith; and 412(b)(1)(A) (injury) and 412(b)(1)(C) (Confrontation Clause-based impeachment). Therefore, you would argue that you are offering evidence related to two sexual encounters other than the alleged rape to prove that the source of the alleged injuries was the other sexual encounters, or, a more complete evidential hypothesis would be that the injuries suffered by the alleged victim are more consistent with three consensual sexual encounters within 72-hrs. of the sexual assault examination, than with one act of violent rape (this argument also develops consistency with the medical evidence that the injuries are not severe enough to be inconsistent with consensual sex). The “sexual history” of the boyfriend-girlfriend relationship is explored more generally to establish bias, and you may tie the two sex acts a part of that discussion.
Conversely, the objecting party, the prosecution, would emphasize that other acts are the least favored type of character evidence (405(a)[2]); the impermissible “bad person” or bald propensity inferences (404(a) and 404(b)[1]); and more generally the very specific type of “bad person” inference that arises in cases like these: the “loose woman” social construct based on “Victorian” notions of morality and sexuality that is problematic under 404 and absolutely forbidden by 412(a).
The starting point in this section of the analysis is Rule 404, because you are using evidence of specific acts, which is character evidence, as it is defined in Rule 405(a), and is generally governed by Rule 404.
The commentary to FRE 405 states that Rule 412 governs the area of character evidence of the victim in a sexual assault case. While that is ultimately correct, the statement must be viewed with care. The prohibition of FRE 412 is needed because the evidence might otherwise be allowed by other rules, including 404, as the quotation from the Advisory Committee notes in the previous section indicates. Moreover, the exceptions in 412(b) expressly require that the evidence be “otherwise admissible under these rules” before it can be used under the 412 exceptions.
The prosecution in the project certainly would stand behind the express language of 412(a) to state that the evidence is not admissible for substantive (consent) or impeachment purposes. But, when discussing the exceptions, you are required to address the other rules by the express language of FRE 412(b)(1): “(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules.” The prosecution, as the objecting party, would argue that neither the other rules nor FRE 412 allow admissibility, the defense, as the offering party would argue that it meets all the standards.
But the prosecution can, and should, also use the general character rules to support its objection. The prosecution would argue that FRE 405(a) creates a general scheme that mostly and especially disfavors specific acts evidence, which is precisely what the defense is offering. It would emphasize that FRE 404(a) generally disallows the use of such character evidence against any person in support of the propensity inference. (Note that in the absence of 412 and under the old common law practice discussed in the relevance section, witness reputation testimony or opinion about the alleged victim’s lack of “chastity” might be a “pertinent trait of character” for 404(a)(2) purposes.) Finally, 404(b)[1] establishes that specific acts evidence is not admissible in support of the bald propensity inference, again, against any person. To the extent that 404(b)[2] does allow certain specific propensity inferences --which arguably includes consent, source of the injuries, and motivation to fabricate the charge (naturally, if the alleged victim testifies, then you look at 404(a)(3) and 608, but with care to understand that they are limited to character for truth telling attacks on credibility, not all five types of impeachment). Then the defense runs into the express prohibition of FRE 412(a). The prosecution would also argue that the offered evidence does not meet the applicable exceptions of FRE 412(b).
The defense would argue that it is not violating any of the prohibitions that were just discussed. Rather than attempting to “assassinate” the character of the alleged victim, the defense is using other acts for two very specific purposes that are allowed by FRE 412(b): credibility (via bias impeachment, and perhaps contradiction) and source of the injuries.
FRE 412(b)(1)(A) covers the use of evidence in a criminal case like this one “offered to prove that a person other than the accused was the source of semen, injury or other physical evidence.” Additionally, cases cited in the relevance section have ruled that the defendant has a confrontation clause right to attack the alleged victim’s credibility by using other sexual acts or relationships to show a motive to lie. You might argue that such use is beyond the coverage of the rule (as some cases have ruled regarding other issues), but, given the confrontation clause basis of the bias credibility cases, it is probably better to use the “constitutional rights” language of FRE 412(b)(1)(C).
Courts are strict in applying the technical requirements of rule 412. In particular, prior, timely notice and filing under seal. The U.S. Supreme Court has upheld the constitutionality of notice requirements in state rape-shield statutes, citing approvingly to FRE 412. See Michigan v. Lucas, 500 U.S. 145 (1991) (exclusion is the appropriate sanction for failure to comply with notice rules). One defendant in a civil case was precluded from introducing any evidence that might otherwise have been proper under 412(b), because he had not filed his motion under seal as required by 412(c)(2)[B]. S.M. v. J.K., 262 F.3d 914 (9th Cir. 2001) (in fact, all records of this case were ordered sealed, pursuant to FRE 412, in order to protect the alleged victim/plaintiff’s privacy). Since I told you that a hearing had already been held, your project only brought this into play in the certificate of service (the most common oversight among students), in which you were required to provide notice not only to the opposing party but also to the alleged victim or their counsel.
Rule 403 is the final hurdle to admissibility. The balancing formula of rule 403 is weighted in favor of admissibility and Rule 412 does not change that, despite some arguments to the contrary. The FRE 403 balance normally requires the court to assess probative value against the six possible rationales for exclusion as they relate to the parties, the government and the defendant in this criminal case. But, FRE 412 also requires the court to consider the possible prejudice to the alleged victim in making its decision. 404 also benefits the alleged victim as does 611(a).
Even though the occurrence of the acts is a matter of conditional admissibility under FRE 104(b), the court may consider its doubts (if any) regarding the occurrence of the acts in the manner alleged by the defense, when discharging its obligation to assess the “probative value” of the evidence, as we discussed in relation to Huddleston (the famous footnote 6 discussed at page 490 of the casebook) and FRE 403. In this particular scenario, it is difficult to conceive that the judge would exercise this discretion, since there is physical evidence and expert testimony regarding the defense timeline.
Consider (a) the defendant’s need for the evidence, (b) the degree of probative worth on the particular question (source of injuries and motive to lie), and (c) nature of prior acts (consensual sexual acts). In this case, I would not call the defense evidence weak (the prosecution, however, would emphasize its strong evidence to the contrary here). Physical injury will be argued by the prosecution to be inconsistent with consensual sex. Therefore, substantively, the defense evidence challenges the prosecution’s expected argument that the physical injuries suffered by the alleged victim are consistent with rape, and the result of her involuntary encounter with the defendant. The defense is using the other acts to make an indirect consent argument that is not based on a propensity inference. Moreover, if impeachment is allowed, it goes to the credibility of the complaining witness in a sexual assault case in which her denial of consent is the issue. The evidence is arguably highly probative, and it relates to important issues in the case.
In the project and in the real case on which it is based, the prosecution may have made a blunder by emphasizing the nurse examiner’s statement that the injuries were quite severe. Since the defense would argue that the injuries were not that severe, with important support from the medical records and supported by the opinion of a prosecution consultant, it might have been better for the prosecution to drop that claim. Lack of injury does not mean that the alleged victim was not raped. Moreover, emphasizing the injuries made it more necessary for the defense to counter that inference with evidence of its own. In other words, the prosecution’s argument increased the materiality and probative value of the defense injury evidence.
On the other side of the scale, 412(a) provides the “unfairly prejudicial” uses of the evidence by specifically forbidding the use of specific sexual acts, and of evidence that goes to the alleged victim’s “sexual predisposition.” The use of sexual acts with persons other than the defendant to prove consent would be unfairly prejudicial because it is forbidden by the rule (FRE 412(a); cf. FRE 412(b)(1)(B)). More generally, attempting to besmirch the character of the alleged victim and to appeal to the passions of the jury by using evidence of “sexual predisposition” would be unfairly prejudicial both under 412 and under 404. Certainly, the exploration of the “sexual history” of the boyfriend-girlfriend relationship is even closer to the prohibited uses, and thus arguably produces more concerns regarding unfair prejudice. The protections of FRE 611(a) might also preemptively come into play here on behalf of the alleged victim.
The effect of a 105 limiting instruction in reducing unfair prejudice would also come into play here. The defense would argue that this is a normal situation in which unfair prejudice and legitimate probative value can be managed by properly and carefully instructing the jury. The limiting instruction thus increases probative value and reduces unfair prejudice, which makes admissibility more appropriate. The prosecution on the other hand might argue that this is a Bruton situation in which we should not trust the jury to follow instructions that require them to ignore highly prejudicial but very real inferences. The existence of a specific exception makes the latter argument difficult.
[F-2] confusion of the issues, or [F-3] misleading the jury: It is difficult to conceive that these rationales would result in exclusion if the court finds that probative value is not substantially outweighed by the unfair prejudice. However, as to specific evidence or testimony, such as expert testimony in particular, the court might have to consider these rationales with more care. These might also come into play depending on the manner in which the evidence is used, but that is a trial matter, although the judge might warn the parties about what she would consider misconduct.
[E-1] considerations of undue delay, [E-2] waste of time, or [E-3] needless presentation of cumulative evidence. The prosecution might argue that to the extent that the other acts will require the presentation of substantial demonstrative and witness evidence, including the testimony of expert witnesses, it will take a lot of time. While this evidence will take time, if the court finds that the probative value is not substantially outweighed by the unfair prejudice, then it is in fact time well spent. However, if the defense were to offer many witnesses to prove the same thing (too many experts, multiple lay witnesses testifying to the same thing), then these rationales might come into play.
Finally, these rationales for exclusion might play an important role in limiting the exploration of the sexual history of the boyfriend-girlfriend relationship, certainly a much higher role than in the other-sexual-acts-to-show injury scenario. Note however that the probative value of the relationship-impeachment evidence is quite high, especially since it is constitutionally required.
The court may only allow the evidence to be admitted for the very limited purposes allowed by FRE 412(b) or the caselaw exceptions (such as impeachment uses) that have been developed (which might easily be at least partially related to 412(b)(1)(C), though perhaps not contradiction). Therefore, the court should, upon request, give a limiting instruction that explains to the jury (1) the proper use(s) under FRE 412(b) and (2) the improper character inferences under at least FRE 412(a) and perhaps more generally under FRE 404. Huddleston requires the instruction.
[1] In the Bryant case there were some significant questions about the details of at least one of the sexual encounters. The defense was arguing that any injuries in the alleged victim’s vaginal area were more consistent with consensual sex three times shortly before the sexual assault examination than with one violent rape. For this inference to be drawn, the defense would have to convince the jury that the two other sexual acts involved vaginal sex. The alleged victim described one of them as involving only felatio, which would not produce vaginal injuries. This would have been a factual question for the jury to resolve.
[2] An interesting technical issue arises as to foundation under FRE 104(a) vs. 104(b). Under 104(a), the court may base its admissibility decision on evidence that might otherwise be inadmissible. But, if the matter is for the jury to find under 104(b), that can only be based on admissible evidence. For example, several of my Fall 2003 students discussed a possible hearsay problem regarding the alleged victim’s consent to sexual activity with the two men other than the defendant, which, they surmised, might have been accomplished verbally. This was an interesting discussion, though a bit more than I expected in the project. To the extent that consent was asserted, it would likely be a non-hearsay verbal act.