The
University of Florida
Fredric
G. Levin College of Law
Evidence
• Spring 2003
Prof.
Pedro A. Malavet
Practical
Project FEEDBACK MEMORANDUM
Compliance with the submission requirements
of the practical project was overwhelmingly complete. All but one of the
students in the class submitted a practical project on a timely basis.
Everyone who submitted a project will receive a passing grade.
The content of the projects ranged from
a few that were very well done both in form and in substance, to many that
displayed complete ignorance of what a judicial motion looks like (which
is not terribly surprising), and those that lacked adequate substantive
discussion.
As to the form requirement, the complaint
that I attached to the project at least gave you the “look” of the opening
of any court document, which will include the designation of the court
in which the action is pending, and the names of the parties (the case
title) and the case number. I explain the form requirements in general
at the end of the memo, but I am generally not especially concerned with
that in evaluating the motions.
However, I was more concerned about the
he lack of adequate substantive discussion in the motions. The project
gave you an opportunity to articulate a completeresponse to an evidentiary
problem. This substantive discussion would have been helpful to clarify
many evidentiary issues, and to illustrate how to approach an exam answer
in my course. But many of the motions included rather inadequate discussion.
The facts given in the project itself
were supplemented by the allegations of the complaint. It was crucial to
refer to the allegations in the complaint in order to establish the evidential
hypos to be argued in the case, both by Plaintiff, the offering party,
and by the defendant in opposing admissibility.
I will abstract the possible discussion
in the following pages. Do understand that this is just an abstract outline
of the possible areas of discussion and the basic thrust of the appropriate
analysis. It is not in any way a complete answer.
Preliminarily
As you know, you always start with the 104(a) vs.
104(b) discussion. Here, there are clearly legal questions that require
the court to make findings regarding the admissibility of the alleged prior
acts under FRE 404(b), 415 and 608 (there are other arguments, but these
are the strongest ones).
However, as to the occurrence
of the prior acts, there is a factual disagreement among the parties. Jones
argues that both incidents occurred, Clinton has only made a limited admission
as to the Lewinsky relationship and he denies the Willey allegations.
The most recent caselaw suggests that
the question “did the prior acts occur?” will be treated as a matter of
conditional admissibility under FRE 104(b), with the court exercising only
a minimal threshold inquiry into the factual sufficiency of the allegations.
In
other words, treatment similar to that in Huddleston. Certainly,
Jones would prefer this liberal standard. Nevertheless, Clinton, or any
other party opposing admissibility, would argue in favor of treating this
under FRE 104(a) and requiring the offering party to prove the acts at
least by a preponderance of the evidence (similar to what we saw in Bourjaily,
in the context of co-conspirator statements). The sensitive nature of prior
acts evidence argues in favor of judicial intervention and a high evidentiary
standard such as preponderance. But, as we saw in Huddleston, and as seen
in the recent cases referenced in the website, this may well be a losing
argument.
In this case, with the proffer of the
Willey and Lewinsky testimony, the threshold factual standard of FRE 104(b)
will easily be met. The preponderance standard under 104(a) would of course
be more difficult. As to the occurrence of the Lewinsky matter, Clinton
has not denied it, so Jones would be able to establish the “inappropriate
relationship” as well. The Willey matter, which has been denied, would
be more difficult under a preponderance standard, though certainly not
impossible. (Who would you believe, the woman who claims to be his victim,
or Mr. “I did not have sex with
that woman ... Ms. Lewinsky”?).
In any case, once the facts have been
established to satisfy the applicable standard, the technical legal questions
regarding admissibility of the acts under the rules belong to the court.
I. Relevance
The liberal relevance standard clearly favors the
offering party, but the opponent should not abandon the field at any stage
of the analysis. Nevertheless, the court is not required to accept the
strongest evidential hypothesis, just a reasonable one. Therefore, the
objecting party has to argue that the evidence lacks any relevance.
Mrs. Jones alleges in her complaint that
Clinton had her brought to his hotel room in Arkansas, where he tried to
get her to engage in unwanted sexual conduct. He exposed himself to her,
and engaged in unwanted physical contact with her. Paragraph 72 of the
complaint characterizes this conduct as “sexual advances, assaults upon
and imprisonment of Jones’ person.”
She might argue that she would present
sufficient proof to establish the prior acts, and that those acts prove
that Clinton has displayed a sexually-predatory patternof conduct towards
women at his place of employment. She alleges that Clinton mentioned that
he knew the director of the government office in which she worked, and
she clearly knew that, as Governor, Cinton was the highest administrative
official in the state and thus her employment superior. She might then
argue that Clinton has engaged in allegedly consensual relationships with
employees (like Lewinsky, an intern at the White House) and assaulted women
who would not submit to his requests (her, and Ms. Willey, who was working
as a volunteer at the White House). Accordingly, Lewinsky/Willey acts should
be admitted as proof that Clinton in fact attacked her. In the words of
the rule, a man who pursues and harasses or assaults women employees is
more likely to have committed the act against her.
As I have mentioned in class, the propensity
argument meets the standard of FRE 401 and 402, and thus makes other acts
evidence potentially admissible.
Clinton might counter that there is no
pattern of conduct shown by the acts here, and that neither should be admitted.
I think that the stronger argument can be made against admitting evidence
regarding voluntary encounters, like the one with Lewinsky, but at this
stage, it would be difficult to justify the exclusion of the Willey act.
Given the liberal standard of FRE 401/402, Clinton has the more difficult
task, at this stage of the analysis.
I should also point out that the argument
that there is a pattern would become stronger if there was evidence of
more acts. In the actual Clinton case there were many dozens of other allegations,
but I chose to limit the number in order to make the project a bit easier.
As a matter of practice, the party favoring
admissibility must establish that all elements in favor of admissibility
are present, hence, they must go through the entire “Forest” analysis.
On the other hand, a well-crafted opposition argues that none of the elements
of admissibility is present. While a court has the luxury of saying that
it need go no further once it finds a reason to exclude the evidence, the
party making an argument in opposition to admission in a motion cannot
make the assumption that it will win so easily. Therefore, they must make
the entire “Forest” analysis, but arguing against admissibility at every
stage.
II. Another Specific Rule
The General Disallowance of Character Evidence.
FRE 404(a) generally forbids the use of character evidence to establish
action in conformity therewith on a particular occasion. FRE 405(a) explains
that reference to specific acts constitutes the least-favored character
evidence. Moreover, the first sentence of FRE 404(b) specifically provides
that “[e]vidence of other ... acts is not admissible to prove the character
of a person in order to show action in conformity therewith.”Even though
many of the exceptions are limited to use in criminal cases, the prohibitions
are phrased in general terms that apply both to criminal and to civil cases.
Therefore, despite passing the FRE 401/402
standard, the acts run into the general prohibition against character evidence
in FRE 404. An express exception must be found. I asked you to focus on
FRE 404(b) and 415, as well as the FRE 608 credibility use.
The general disallowance of character
evidence, together with the always-unfairly-prejudicial “bad person” inference,
must be kept in mind both by the offering and by the opposing side in evaluating
the admissibility of these acts.
Prior Acts? This entire
area is often referred to in practice as “prior acts” or “prior bad acts.”
But the rule does not expressly include a temporal requirement, rather
it merely refers to “other acts or wrongs.” Accordingly, the fact that
the Lewinsky and Willey acts occurred several years after the alleged attack
on Jones is not a bar to admissibility.
Although temporal proximity between the
alleged“other acts” and the ultimate fact in the underlying litigation
is one factor to be considered by the court in deciding on admissibility,
federal courts have held that the “other acts” language of FRE 404(b) allows
admissibility of prior or subsequent acts. See, e.g., U.S. v. Bibo-Rodríguez,
922 F.2d 1400 (9th Cir. 1991). I would expect courts to take
a similar tack with the “another offense or offenses” language of FRE 415.
FRE 415. FRE 415 allows the use
of “other acts” evidence in civil cases, as provided in FRE 413 for criminal
cases. Accordingly, “other acts” which would constitute the “offense of
sexual assault” can be used against the defendant in a civil case like
the Jones v. Clinton lawsuit. The first question under 415 is if the “other
offenses” constitute a violation of the type described in FRE 413(d). This
argument is very hard as to the Lewinsky matter . The argument as to the
Willey allegations is easier, in that it is un-consented contact. But Jones
would still have to establish that the act is the type of conduct that
would constitute an offense under the referenced statute. To Jones’ benefit,
however, the courts seem to take a liberal approach to defining acts that
would constitute such offenses. Clinton, on the other hand, would make
a very specific argument that this conduct, even if true, does not constitute
such a violation. If the act(s) become admissible under FRE 415, they may
be used to argue action in conformity therewith.
Rule 413(d)(1) specifically refers to
the crime of “sexual abuse” defined in Chapter 109A of title 18 (18 U.S.C.
§ 2241) which forbids “knowingly caus[ing] another person to engage
in a sexual act—(1) by using force against that other person; or (2) by
threatening or placing that other person in fear that any person will be
subjected to death, serious bodily injury, or both.” Rule 413(d)(5) states
that “an attempt or conspiracy to engage in conduct described in paragraphs”
is also admissible against the perpetrator.It seems clear that even if
it violated a sodomy statute, the relationship with Lewinsky is unlikely
to constitute “sexual abuse.” However, the encounter with Willey could
be classified at least as an attempt at sexual abuse, thus possibly coming
under the allowance of FRE 415.
FRE 404(b). The strongest 404(b)
argument in this case is to use the “other acts” to establish Clinton’s
modus operandi, as is discussed in the 404(b) sexual-assault cases
that I posted to the website. Clinton would counter that there is no pattern
and no real similarity sufficient to establish any specific allegation
allowed by 404(b). Note that unlike FRE 415, there must be a specific fact
that is proved by the other acts under FRE 404(b) that must be something
other than action in conformity therewith.
FRE 608. I suppose that you could
argue that cheating on your spouse (and Clinton was married at all times
pertinent hereto), is an act of dishonesty and that therefore, actual cheating
and attempts to cheat are acts that go to credibility.
Therefore, Jones could ask Clinton questions about those acts during her
cross-examination of him when he testifies, under FRE 608(b)(1). Extrinsic
evidence, i.e., the testimony of Lewinsky and Willey regarding their contacts
with Clinton, would not be admissible under 608. However, if Clinton is
asked about his relationship with Lewinsky and Willey and his testimony
opens the door to contradiction, then the Lewinsky and Willey testimony
might be admitted, even if it was otherwise completely excluded. This is
why Clinton wants to win on the motion in limine to preclude even cross-examination
questions regarding these incidents.
III. The 403 Balance
Several students have asked if they should do the
FRE 403 balance as to each specific rule discussed in the previous section.
That is not the best practice. The better practice is to establish all
legitimate and illegitimate uses of the evidence and to then
conduct the FRE 403 balance. That said, however, there is one very specific
discussion of FRE 403 that must be tied to Rule 415.
The 403 balance is the final hurdle to
admissibility, unless the rule expressly eliminates the requirement. An
example of such a rule is FRE 609(a)(2), which establishes “automatic admissibility”
of prior convictions used for impeachment purposes, when the crimes involved
“dishonesty or false statement.”
Some have argued that FRE 415 is an “automatic
admissibility” rule that precludes the exercise of discretion under FRE
403. Judge Wright specifically rejected that argument in her opinion, but
since the matter is not entirely settled, plaintiffs in Jones’ position
should make “automatic admissibility” argument.
The better rule, however, is that FRE
403 does apply, and that has been the finding of several circuit courts.
(There is an extensive note about the recent cases in the web site. Some
of these cases find that 403 balancing is in fact constitutionally required,
otherwise, FRE 415 would not pass constitutional muster).
The court might reconsider a 403 ruling
under the circumstances discussed in part II above relative to FRE 608,
but in making its initial ruling regarding admissibility, the court should
make a totality analysis. That way the court can, for example, rule that
even if the evidence is admissible under FRE 415 and 404(b), it is appropriate
to narrow its admission to the limited 404(b) specific uses, rather than
to permit the full propensity argument under FRE 415. This would be an
alternative short of full exclusion and short of full admission (i.e.,
a balancing approach!).
The fundamental unfair prejudice argument
in this situation, which Clinton should certainly raise and which applies
to any use of bad “other acts” evidence, is that the jury will simply find
that he is a “bad person” and therefore find in favor of Jones. The “bad
person” inference is always unfairly prejudicial. However, the court could
find that the evidence is admissible under FRE 415, and that the specific
inference that Clinton acted in conformity with that sexually-predatory
character in the hotel room in Arkansas may be argued. However, the court
should at this stage balance the real probative value of the evidence that
might be admissible, against the unfair prejudice of the “bad person” inference.
Admission should occur only if the court believes legitimate probative
value is not substantially outweighed by the unfair prejudice (or any of
the other five reasons to exclude). The use of a limiting instruction might
be part of the court’s balancing (i.e., the court will admit it, but only
after giving a limiting instruction, unless Clinton would prefer that no
instruction be given.)
The parties would hedge in arguing a
motion in limine, in order to make sure that the court considers all possible
alternatives.
Accordingly, Jones would argue that the
full 415 propensity inference use should be allowed, but, in the alternative,
she would argue that the court should at least allow her to use it under
FRE 404(b) to prove “attitude/conduct towards women in the workplace” by
this serial “sexual predator” or “sexual harasser.” Jones might make a
tactical choice
Clinton would consistently oppose any
use of the evidence. Also, if the plaintiff were to offer dozens of examples
of particular conduct by Clinton, the unfair prejudice effect would increase
(although it can also be argued that the pattern becomes even more clear).
If many, many “other acts” are allowed into evidence, the facts of the
underlying case might become overwhelmed. Thus, Clinton might ask the court
totally to exclude, or at least to limit the number of other acts as to
which evidence might be admitted under the efficiency portions of FRE 403.
Post-Admission
If the evidence is admitted, unless the court reconsiders
its ruling, you need go no further. However, if the court admits the evidence,
Clinton might have grounds to request certain limiting instructions under
FRE 105, depending on the specific ruling made by the court in allowing
admission.
Post-Exclusion
Even if the court excludes the evidence, it is possible
that the matter might be reconsidered at trial in response to the defense
case-in-chief, and perhaps to defendant Clinton’s testimony on direct or
cross-examination. Impeachment uses of the evidence might be allowed, at
least in cross-examination, and contradiction might become available.
APPENDIX
ON Form
A typical federal
motion looks roughly like this:
|
Case
Caption
|
[Counsel]
[Court:]
In the United States District
Court
For the Eastern District of Arkansas—Western
Division
[Case Title]
Paula Corbin Jones,
Plaintiff
vs.Civil
ACTION No. 94-290
William Jefferson
Clinton,
et al.
Defendants
|
|
Substance
|
[Document
Title]
MOtion in Limine
[You
might add Specific purpose: e.g. “To Admit ...” Or “To Exclude ...”]
[opening]
[Body of the document]
[Prayer]
|
|
closing
|
[Date]
[Certificate of
service]
[Counsel’s signature,
address and telephone number.]
|