Doe v. United States
666 F.2d 43 (4th Cir. 1981)


BUTZNER, J. These appeals concern the district court's evidentiary ruling in a pretrial proceeding held pursuant to rule 412 of the Federal Rules of Evidence. The court held that evidence concerning the past sexual behavior and habits of the prosecutrix was admissible in the rape trial of Donald Robert Black. We conclude that we have jurisdiction to hear her appeal, and we affirm in part and reverse in part the order of the district court.


The appellant is the alleged victim and chief government witness in the impending rape trial of Black. Pursuant to rule 412 of the Federal Rules of Evidence, Black made a pre-trial motion to admit evidence and permit cross-examination concerning the victim's past sexual behavior. After a hearing, the district court ruled that Black could introduce the evidence which he proffered.

Several days later, the district court granted Black's motion for the issuance of subpoenas for individuals who were to testify about the victim's sexual history. These included the victim's former landlord, a social worker who had previously investigated the victim, a sexual partner of the victim, and two people who claimed to be aware of the victim's reputation for promiscuity....


Black asserts that this court lacks jurisdiction to entertain the victim's appeal from the district court's order in the rule 412 proceeding. Resolution of this issue requires an examination of the procedural provisions of the rule....

Section 1291 of title 28 U.S.C. confers on courts of appeals jurisdiction to review final decisions of the district courts. The Supreme Court has held that this finality requirement should be "given a 'practical rather than a technical construction.' " Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152 (1964). The Court also has instructed that the most important considerations for determining whether an order is final are "the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.'' Dickinson v. Petroleum Corp., 338 U.S. 507, 511 (1950).

In this case the balancing of these factors weighs heavily in favor of a conclusion of finality. The inconvenience and costs associated with permitting the victim to appeal are minimal. Certainly, they are no greater than those resulting from government appeals of suppression orders that are authorized by 18 U.S.C. 3731. Because the rule provides for pre-trial evidentiary hearings, appeals are unlikely to involve significant postponements of criminal trials. Indeed, in this case, we heard the appeal and filed an order resolving the issues without any delay of the criminal trial.

On the other hand, the injustice to rape victims in delaying an appeal until after the conclusion of the criminal trial is manifest. Without the right to immediate appeal, victims aggrieved by the court's order will have no opportunity to protect their privacy from invasions forbidden by the rule. Appeal following the defendant's acquittal or conviction is no remedy, for the harm that the rule seeks to prevent already will have occurred. Consequently, we conclude that with respect to the victim the district court's order meets Gillespie's test of practical finality, and we have jurisdiction to hear this appeal.


At the pre-trial rule 412 evidentiary hearing, Black presented several witnesses who told about the victim's past sexual behavior and reputation. Black testified that although he had talked on the phone with the victim several times, he did not meet her until the night of the alleged crime. Several men previously had told him the victim was promiscuous, and he had read a love letter she had written to another man.

At the conclusion of the hearing, the district court ruled that the following evidence was admissible:

(1) evidence of the victim's "general reputation in and around the Army post ... where Mr. Black resided'';

(2) evidence of the victim's "habit of calling out to the barracks to speak to various and sundry soldiers'';

(3) evidence of the victim's "habit of coming to the post to meet people and of her habit of being at the barracks at the snack bar'';

(4) evidence from the victim's former landlord regarding "his experience with her'' alleged promiscuous behavior;

(5) evidence of what a social worker learned of the victim;

(6) telephone conversations that Black had with the victim;

(7) evidence of the defendant's "state of mind as a result of what he knew of her reputation ... and what she had said to him.''

Black argues that all of the evidence delineated in items 1-7 is admissible to support his claim that the victim consented, to show the reasonableness of his belief that she consented, and to corroborate his testimony. He relies on the rule's provision for the admission of constitutionally required evidence. Exclusion of the evidence, he maintains, will deprive him of the rights secured by the due process clause of the fifth amendment and the right of confrontation and compulsory process guaranteed by the sixth amendment....

The evidence delineated in items 1-5 of the district court's order clearly falls within the proscription of subsection (a) of the rule. Though sometimes couched in terms of habit, this evidence is essentially opinion or reputation evidence. Consequently, the exceptions set forth in subsection (b) do not render it admissible.

The constitutional justification for excluding reputation and opinion evidence rests on a dual premise. First, an accused is not constitutionally entitled to present irrelevant evidence. Second, reputation and opinion concerning a victim's past sexual behavior are not relevant indicators of the likelihood of her consent to a specific sexual act or of her veracity.... We are not prepared to state that extraordinary circumstances will never justify admission of such evidence to preserve a defendant's constitutional rights. The record of the rule 412 hearing in this case, however, discloses no circumstances for deeming that the rule's exclusion of the evidence classified in items 1-5 is unconstitutional.

The evidence described in items 6 and 7 of the district court's ruling is admissible. Certainly, the victim's conversations with Black are relevant, and they are not the type of evidence that the rule excludes. Black's knowledge, acquired before the alleged crime, of the victim's past sexual behavior is relevant on the issue of Black's intent. See 2 Weinstein and Berger, Evidence 412(01). Moreover, the rule does not exclude the production of the victim's letter or testimony of the men with whom Black talked if this evidence is introduced to corroborate the existence of the conversations and the letter.

The legislative history discloses that reputation and opinion evidence of the past sexual behavior of an alleged victim was excluded because Congress considered that this evidence was not relevant to the issues of the victim's consent or her veracity. Privacy of Rape Victims: Hearings on H.R. 14666 and Other Bills Before the Subcomm. on Criminal Justice of the Committee on the Judiciary, 94th Cong., 2d Sess. 14-15, 45 (1976). There is no indication, however, that this evidence was intended to be excluded when offered solely to show the accused's state of mind. Therefore, its admission is governed by the Rules of Evidence dealing with relevancy in general. Knowledge that Black acquired after the incident is irrelevant to this issue.

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Professor Althouse asks about the court's admission of reputation evidence to prove the accused's state of mind:

How could the court avoid the impact of the clear text of the rule by pointing to an absence of legislative history? Wouldn't the clear text of the rule supersede even a direct statement in the legislative history to the contrary? Would it be better not to have a specific rule of evidence about past sexual behavior and to rely on the general rules? (Keep in mind the capacity of courts to distort neutral rules as they apply them in the rape context.) Even if it would be better to have a general rule, how can the court make this choice?

See Althouse, Nw. U.L. Rev., supra, at n.169.


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