Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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D. Character Evidence in Sexual Assault Cases (274)

This section starts with an examination of the crime of rape from the victim's point of view, and then gets into some of the policy and relevancy questions posed by "rape shield" provisions such as FRE 412 . We then proceed to discuss the use of evidence of prior sexual conduct of the accused under new FRE 413-415.

We do not avoid raising questions about whether the protection afforded victims in sexual assault cases to prevent evidence of their prior sexual activities can always be justified solely on relevancy grounds, at least as that term is defined in FRE 401. Or whether these protections can be justified by the familiar prejudice considerations of FRE 403, 404, 405 or 609, which are concerned with prejudice to the accused, not to witnesses against the accused. Exclusion of relevant sexual history could be justified in some cases on grounds that evidence of the victim's prior sexual history a) misleads the jury, b) confuses the issues, or c) wastes time -- other 403 grounds for exclusion of relevant evidence. But exclusion on these bases would be on a case-by-case, not a per se, basis.

The per se exclusions of the rape-shield law are predicated on assertions about relevance. There is some tendency for people to think about the concept of relevance as logical and objective. It is important, however, to recognize that concepts of relevance are very much dependent on one's point of view. This was the point of several problems in Chapter I, particularly Problem - Time Travel to Old Salem (15). The law of sexual assault has unquestionably been dominated by conceptions of relevance derived from centuries of development by male judges. The rape shield laws assert a different concept of relevance, stemming from a different point of view. It is precisely this difference in point of view which makes discussion of the problems in this section both intense and interesting.

FRE 412, which was enacted after the adoption of the FRE in 1975, can also be thought of as creating a privilege for the victims of sexual assaults. As with other privileges, (see below Chapter VII), the sexual assault victim's privilege often works to exclude evidence that is relevant. Like other privileges, the sexual assault victim's privilege can be conceptualized in terms of privacy or instrumental utilitarianism.

The rape-shield statutes are strongly grounded in privacy and respect for the integrity of the victim. Details of a person's sexual life lie close to the heart of the privacy considerations articulated by Krattenrnaker and Westin. See text at pages 604-607. They also are strongly grounded on utilitarian objectives: without the privilege, victims will be hesitant to come forward and press charges, or guilty defendants will get off because they succeed in playing to the jury's prejudices by putting the victim on trial; in either case, dangerous criminals will not be brought to justice, which endangers society.

Whether the force of these justifications is powerful enough to overcome a defendant's right to present relevant evidence in his defense and to confront the witnesses against him is explored in the problems and cases which follow. These materials also provide an excellent means of reviewing the various rules relating to character, habit, credibility and modes of proof.

These principled justifications (privacy and utility) for the privilege, while not without some force, suffer from the same defects as the justifications for the other privileges. See infra at Ch. VII. Perhaps the most accurate explanation for the enactment of the privilege statutes is political. In this view, the privilege is a result of the ongoing feminist movement and the power that the members of that movement have exerted on legislatures and courts to reform the rules in this area. This is not necessarily bad, but it does make the privilege harder to defend against confrontation and other policy attacks.

Had FRE 412 only eliminated use of propensity logic as it related to actions of a rape victim, the statute would have created no serious constitutional problems. Propensity logic -- that is, the use of character to prove action on a specific occasion in conformity with character -- is pretty thin stuff. Its marginal relevance partially accounts for the limitations on its use in 404(a) and 405. By contrast, FRE 404(b) emphasizes that there are situations in which proof of specific instances of conduct may be highly relevant to some material issue although the proof may also show character. FRE 404(b) deals with situations in which the logical line of inference does not go through character.

But by purporting to bar evidence of past instances of the victim's sexual behavior for virtually all purposes, FRE 412 went beyond the elimination of propensity logic. FRE 412 eliminated as well use of specific instances of the victim's past sexual behavior, even though the inference to be drawn from proof of such instances may bear on a material issue without inferentially going through character. In this sense FRE 412 may be thought of as having eliminated 404(b)-type uses of past conduct as well as 404(a)-type uses. These uses may be highly relevant in a particular case, and therefore their elimination raises serious questions of violation of a defendant's right to present his defense. Compare the statutory proposal of Professor Berger (page 288, note 41). She articulates a number of situations in which past specific instances of the sexual conduct of the victim would be highly relevant. Unlike FRE 412, however, Professor Berger's statute would provide a limited and exclusive number of affirmative justifications for admissibility rather than (like FRE 404(b)) a series of examples in which a general rule of exclusion does not logically apply.

Problem - Prostitution, Rape, or Both? (296)

Answer and Analysis:

See the note following this problem at pp. 296-297 of the text. In Commonwealth v. Joyce, 1981 Mass. Adv. Sh. 39 (1981), the Massachusetts Supreme Judicial Court held that it was reversible error to exclude evidence under the Massachusetts rape-shield statute that the victim had twice previously been charged with prostitution. In Joyce, the court held that the evidence was admissible not to show that the victim was a prostitute and that it was more likely that she had consented to sex with defendant, but rather that the victim's allegation against the defendant might have been motivated by her desire to avoid further prosecution against her.

D can testify himself to the transaction he had with V. But FRE 412 apparently would bar other efforts by D to prove that V is a prostitute. Of course, just because V is a prostitute does not mean that she is incapable of being raped. But the fact of her being picked up in a bar and going to a hotel room, coupled with proof that she was a prostitute, would indicate that she had made a bargain to engage in sex, thereby consenting. This distinguishes this problem from the preceding one, and makes the proof of her prior sexual behavior much more pertinent here. This is another example of a case in which the defendant's due process right to defend himself should override the limitations imposed by FRE 412. See

See Prosecutor Fairstein's discussion of the issues raised by rapes of prostitutes (297-299).

Problem - Explanation for Pregnancy (299)

The point:

In some sexual assault cases, evidence of the victim's sexual activity with others is admissible.

Answer and Analysis:

FRE 412 (b)(2)(A) provides that evidence of the victim's past sexual behavior with persons other than the accused is admissible on the issue of whether the accused was the source of semen or injury. This contemplates the situation where medical evidence offered by the prosecution shows that semen or injuries were found on the victim, and the defendant's response is that he was not their source.

Although the rule does not address the pregnancy situation presented by the problem, the situations are similar. If this evidence is not admissible by logical extension of FRE 412(b)(2)(A), it should be admitted under FRE 412(b)(1) (constitutionally required). To exclude this evidence would be to deny D the opportunity to present his defense. Moreover, this evidence does not go to V's general sexual character. Rather, it goes to her motive in accusing D of rape. Thus, it is independently relevant, like evidence of motive in other types of cases that is held admissible under FRE 404(b) as not implicating the propensity rule.

The question regarding the DNA evidence is to show that there are various ways to prove sexual activity.

State v. Jacques, 558 A.2d 706 (Me. 1989) (300)

This case arises under a state version of FRE Rule 412, but employs the kind of analysis that would be used under the federal rule. The court holds that admission of evidence of prior sexual activity (sexual abuse) of the victims by others was constitutionally required despite the rape shield law. The inference that such evidence would tend to rebut was the inference that the child victim's apparent familiarity with sexual activity was the result of the actions by the defendant. The path of reasoning is similar to that used in Problem: Explanation for Pregnancy. Here the evidence of sexual activity with others is an explanation for the victim's unexpected familiarity with sexual activity.

Problem - False Accusation? (303)

The point:

Evidence of prior (probably false) allegations of rape is not evidence of an alleged victim's past sexual behavior. Under the familiar doctrine of limited admissibility such evidence is not necessarily barred by FRE 412, even though it may also reveal something about the victim's past sexual conduct.

Answer and Analysis:

This problem is based on the case of Commonwealth v. Bohannon, 376 Mass. 90, 378 N.E.2d 987 (1978). In Bohannon, the Massachusetts Supreme Judicial Court held that evidence of prior false rape allegations was admissible to impeach the complaining witness's credibility. The use of such evidence did not implicate the state's "rape-shield" statute because it "dealt with prior allegations of rape; [it] in no way sought to elicit a response concerning the complainant's prior sexual activity or reputation for chastity."

The Bohannon court disclaimed any special rule regarding the credibility of women in rape cases. Rather, the court approached the issue of prior false claims generally, pointing out that prior false accusations of the specific crime that is the subject of the trial might seriously damage the complainant's credibility. Because of the special dangers in these cases, however, an offer of proof that indicates a strong factual basis for the questions is required.

Problem - Victim's Rights/Defendant's Rights)(304)

Answer and Analysis:

This problem poses the question of who is benefitted by admission of all relevant evidence. The rape-shield law is one of a very few provisions of evidence law which exclude evidence in order to protect someone other than one of the parties on trial. Usually the party most benefitted by exclusionary rules (including Rule 403) is the criminal defendant. Would the Federal Rules be constitutional if protections such as Rule 403 were legislatively overridden?

This issue is raised by new Federal Rules 413-415, which expressly make admissible evidence of a sexual assault defendant's prior sexual misconduct. The question of whether this provision overrides Rule 403 as well as Rule 404 is a threshold question relevant to its constitutionality. See U.S. v. Guardia, p. 320 in the text.

Commonwealth v. Stockhammer, 409 Mass. 867, 570 N.E. 2d 992(1991)(304)

This case under the Massachusetts common-law doctrine of exclusion of evidence of a sexual assault victim's prior sexual activity. The defendant sought to cross-examine the complainant about her concern that her boyfriend would find out about her sexual activity with the defendant and that her parents would find out about her being sexually active with the boyfriend. The Massachusetts court held that exclusion of such cross-examination was error. The court also ruled that the defendant's counsel was entitled to review certain records of psychiatric treatment of the complainant to search for evidence of bias or motive to lie. This decision represents one of those difficult instances of balancing the victim interests supporting rape shield statutes with the defendant's interest in an effective defense.

Problem - The Beach Party (310)

The Point:

Evidence of prior sexual activity by a victim and by a perpetrator are not treated the same way (nor should they be).

Answer and Analysis:

Here the evidence of a prior sexual encounter between the complainant and a third party, even that weekend while at the compound, would be excluded by FRE 412 and its analogues. The evidence that the defendant attacked another guest that weekend would be admissible under Rule 413 for whatever inferences the jury would choose to draw from it.

Although the different treatment of these two kinds of evidence might seem assymetrical at first, it is based on different perceptions of the relevance of prior sexual behavior to later sexual consent or attack, as the case may be, and different policy judgments with respect to protecting the privacy of participants in the justice process.

Florida v. William Kennedy Smith, (The Boston Globe, Brian C. Mooney) (311),

(The Boston Globe, Larry Tye & Irene Sege) (311)

This high profile case presents a dramatic example of the force and possible prejudice of similar acts evidence, especially in sexual assault cases where credibility and consent are the key issues. Videotapes of this trial are available from Court TV. Although the trial judge in the actual case excluded the evidence of prior sexual activity by Kennedy Smith, the result would likely be otherwise under new FRE 413-415.

Williams v. Florida, 110 So. 2d 654 (Fla. Sup. Ct. 1959)(314)

This is the leading Florida case on the admissibility of similar acts evidence, and it played a key role in the William Kennedy Smith case. It is useful to ask students to analyze the evidence outlined in the Boston Globe articles in light of the Williams standard. This case predated new Federal Rules 413-415 and considered the evidence of prior attacks under the state counterpart to FRE 404. Here the court found that the evidence of the prior attacks was relevant other than as showing propensity and affirmed the admission of this evidence.

United States v. Guardia, 135 F.3rd 1326 (10th Cir. 1998)(320)

This is one of the relatively rare Federal cases in which the court construed and applied new Rule 413. The defendant was accused of sexually abusing female patients during the course of gynecological examination and treatment. The prosecution sought to offer testimony of other patients to incidents of abuse at the hands of the defendant. The defendant objected under Rule 403. The District Judge excluded the evidence. The prosecution appealed.

The court concluded that despite the unconditional language of Rule 413, any evidence proffered under that rule would be subject to Rule 403. The court went on to describe the Rule 403 balancing test and found that the District Court had not erred in excluding the evidence.

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