EVIDENCE NOTES10

Chapter 6: Other Exclusions of Relevant Evidence I. 412—SEX OFFENSE CASES and VICTIM’S PAST SEXUAL BEHAVIOR: a. 412: Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition i. (a) Evidence generally inadmissible.--The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): 1. (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. 2. (2) Evidence offered to prove any alleged victim's sexual predisposition. ii. (b) Exceptions: 1. (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: a. (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence b. (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and c. (C) evidence the exclusion of which would violate the constitutional rights of the defendant 2. (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim iii. (c) Procedure to determine admissibility: 1. (1) A party intending to offer evidence under subdivision (b) must: a. (A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and b. (B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim’s guardian or representative 2. (2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise b. 412—federal version of Rape Shield Statute i. Applies in civil sexual harassment cases and criminal cases 1. Focus is on protecting the character of the victim 2. 404(a) = D can offer evidence of victim’s character [most common in self-defense and fairly often in sexual harassment cases] ii. 412(a)—D prohibited from offering evidence [would have been admissible under 404(a), but 412(a) specifically bars in rape and sexual assault cases] 1. Victim’s sexual behavior 2. Victim’s sexual predisposition iii. Relevant? 1. Consent—sexual predisposition: relevant if type of person that consents in past, more likely to consent at this time 2. Way victim dressed—lace dress with no underwearshe wanted it [victim encouraged or incited the attack] 3. Exclude even if relevant because rape victims would NOT bring suit [do anything to NOT have their sexual history brought up]; damaging victim; preventing victim from coming forward; unfairness of victim justifying their life with minimal relevance iv. EXCEPTIONS: still NO reputation/opinion evidence allowed!! 1. If exclusion would violate the constitutional rights of D, can admit evidence of victim’s conduct or predisposition [RARE] a. E.g.—fact that woman was living with another person involved in altercation offered to show bias on part of victim b. E.g.—woman pregnant and invented rape to explain pregnancy…consensual relationship with another man resulted in pregnancy 2. Consent situation: D may offer prior sexual behavior WITH the DEFENDANT!! a. Whether she consented to this defendant…if that is issue, then it may make it more likely that she consented on this occasion or that D reasonably believed she consented b. Past sexual conduct here is MUCH more probative that past sexual history II. Defense of Identity: D says it wasn’t mevictim’s sexual conduct with another person at or about same time is admissible to prove that D was NOT the source of semen or physical injury v. 412(a)(2)—probative value substantially outweighs the danger of unfair prejudice [Inverse 403 TEST] 1. Unlike 403, the balance favors exclusion 2. Evidence excluded UNLESS probative value substantially outweighs danger 413-415: SEX OFFENSE CASES and DEFENDANT’S PAST SEXUAL BEHAVIOR: a. 413: Evidence of Similar Crimes in Sexual Assault Cases: i. (a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant ii. (b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date or at such later time as the court may allow for good cause iii. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule iv. (d) For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under Federal law or the law of a State that involved: 1. (1) any conduct proscribed by chapter 109A of title 18, United States Code; 2. (2) contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person; 3. (3) contact, without consent, between the genitals or anus of the defendant and any part of another person’s body; 4. (4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or 5. (5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4) b. 414: Evidence of Similar Crimes in Child Molestation Cases: i. (a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant ii. (b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date or at such later time as the court may allow for good cause iii. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule iv. (d) For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and "offense of child molestation" means a crime under Federal law or the law of a State that involved— 1. (1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child; 2. (2) any conduct proscribed by chapter 110 of title 18, United States Code; 3. (3) contact between any part of the defendant's body or an object and the genitals or anus of a child 4. (4) contact between the genitals or anus of the defendant and any part of the body of a child; 5. (5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or 6. (6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5) c. 415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation i. (a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules. ii. (b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. iii. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. d. 415—because of this rule, enacted under Clinton = evidence of law suit filed by Paula Jones became relevant in Monica Lewinsky case e. 413-15: Open the door to D’s commission of another actD’s prior sexual history is WIDE OPEN!! [opposite of 404(a) and (b)] i. Limitation: for its bearing on any matter to which it is relevant [VERY broad] ii. Justification—people inclined to engage in these behaviors do so repeatedly and are unlikely to change [some behaviors could come in under 404(b) to show MOTIVE/INTENT] 3. III. A lot MORE than what would be allowed Government can offer specific instances of past conduct to prove D’s character/disposition, then use to prove that D acted this way on a specific occasion 3. Act can by ANY other act, so long as the court finds that there is enough evidence that jury can conclude by a preponderance of evidence that act occurred [Conditional Relevance] iii. NO ruling that 403 is NOT available—but specific rule makes it tantamount to dangers…exclude if probative value is substantially outweighed by danger of unfair prejudice f. Problems: i. 6-18: D and C had sexual relationship, characterized by his aggressiveness and her passivity…several violent sex acts in relationship initiated by D…one night, after dating more than year, D unexpectedly showed up at C’s house after drinking and demanded to come in and C reluctantly agreed…D began to undress C, who told him she did NOT want to have sex with him, he kissed her and she again informed that she did NOT want to have sex with him…D began to kiss again and she did not pull away because she generally feared him and they had sex and D subsequently charged with rape 1. Prior sexual relationship between D and C is RELEVANT because bears upon consent [whether she actually consented and reasonableness of his belief that she consented]evidence could come in as evidence of PRIOR sexual behavior between victim and D bearing upon consent 2. Relevant if C did NOT report alleged rape until several days, weeks, or moths latermore relevant for D to offer…would NOT be excluded under 412 [fact that she didn’t report it]…issue is NOT the intercourse, but the filing of the report a. If limited at all, it will be limited under 403 [admit evidence unless probative value is outweighed by danger of unfair prejudice; misleading jury; confusing issues; undue delay; wastes time; needlessly cumulative] b. Do NOT know why it wasn’t reported immediately—fear or that there was no rape c. Ambiguity as to what evidence proves tends to lower probative value and tends to mislead or confuse jury = could be excluded under 403!! 3. Relevant if D was silent after being informed of rape charges against himrelevant if can show adoptive admission…but if he had been Mirandized, silence becomes ambiguous [right to remain silent] = likely will be kept out ii. 6-19: which evidence admissible in rape cases… 1. Victim’s marital statustypically excluded under 412, because implies something about sexual activity of victim [victim can offer, but the prosecution can NOT] 2. Victim had child out of wedlockkept out under 412, tends to show unchaste 3. Reputation evidence of victim’s lack of chastityany time you see victim’s reputation/opinion = will NOT come in…barred under ALL aspects of 412 4. Victim made prior false accusation against another man of rapefalse accusation is NOT prior sexual conduct, so 412 does NOTHING other than to limit prior sexual conduct [accusation is NOT sexual conduct]…relevant because bears upon the credibility of accusing witness [admissible impeachment evidence] = ALLOWED REVIEW PROBLEMS: a. 6-20: D, BC, charged with sexual battery…at trial, evidence of his prior sexual misconduct on 3 separate occasions was offered by prosecution and defense objected on 403 grounds that unfairly prejudicial and prosecution offered that evidence is relevant to determining whether D committed crime in this case pursuant to 414414 specifically comes in…can make 403 argument, but because have rule that specifically admits evidence, it is tantamount that evidence is particularly probative = therefore would be admissible i. 403 tips in favor of admission (probative value must be substantially outweighed by 6 dangers to be excluded, difficult to prove this because specific rule saying that it is specifically coming in) ii. Congress = sexual predators are so likely to be repeat offenders that should admit this evidence b. 6-21: DD preoccupied with spring break plans and absentmindedly spilled ink on PP…ink toxic and caused serious adverse reaction…P sued D and Ink Co., manufacturer…at trial, P testifies: i. D Ink Co. changed ink formula to reduce toxicity after incident in questionSubsequent remedial measure evidence [objection under 407] = EXCLUDED! ii. DD has spilled ink on at least 5 occasionsPropensity Character Evidence…problems: 1. Civil case 2. Even if were criminal prosecution: a. Wrong party offering—government can’t offer 1st, D has to open the door b. Then it would ONLY be admissible if in the form of reputation/opinion [direct examination]…NOT specific acts as here iii. DD’s reputation in community for carelessness, known for always being in a hurryPropensity Character Evidence = excluded because wrong type of case [civil]; right form [reputation on direct]; wrong party offering 1. 2. c. iv. Immediately after spill DD said that he’d pay for P’s visit to doctorStatements of offers to pay medical expenses NOT admissible under 409 = EXCLUDED v. After incident DD said that when he doesn’t concentrate on where he is going, he often spills ink or just bumps into peoplemight be able to argue that should be kept out under propensity evidence…putting character at issue, therefore excluded under character evidence [Hearsay issue, but get around because P offering D’s own admission…party admission 801(d)(2)(A)] vi. When asked how careful P was behaving at time of incident, P responded ‘Me? I’m always careful’can ask what you were doing, but INADMISSIBLE as to how careful she was being character evidence [character trait for caution, rather than specific conduct] vii. When asked what occurred immediately preceding incident P responded that she saw D running away from some guy, at whom he had just yelledadmissible under res gestae = admissible to explain either conduct before or after [part of the same act…NOT separate act] viii. P said that she was generally careful; only been careless on 2 occasions, when she accidentally caused car collisionsgenerally how careful she is as a person, CIVIL CASE therefore inadmissible character propensity evidence [wrong party offering; and specific acts of carelessness resulting in car wrecks is wrong form for direct examination (specific acts NOT allowed)] 6-22: CC, cabbie, was driving A and CC got into an accident and apologized to A offering to pay medical expenses and admitted that not paying attention…trial of A v. CC and Orange Cab Co., suit seeking damages for personal injuries resulting from driver’s alleged negligence, A testifies… i. When asked what happened on 9/3 at 4 pm A gives long-winded story of accidentobjection because answer is a narrative [NOT covered yet] because long-winded ii. A testified that he knows that CC was in 5 previous accidents all resulting in injuriespersonal knowledge issue…do NOT know how he knows CC was in 5 previous accidents [if someone told him = HEARSAY problem] 1. NOT going to come in because civil case, inadmissible character evidence 2. UNLESS Cab Co. being sued for negligent retention—cab company’s hiring is at issuetherefore can come in as reputation, opinion, or specific act [404(b)] iii. A testifies that told CC to drive slowly as he always did and CC responded ‘I always drive slowly’, to which A adds Hah! And I’m Joe Demaggio 1. ‘I always drive slowly’could come in under habit evidence, but type of evidence that is NOT always credible [CC said it] 2. HS—not really problem because not offering to prove TOMA [that he drives slowly] 3. However, this looks like habit, but slides into character [NOT enough evidence of sampling to prove habit]propensity character evidence that is inadmissible in CIVIL case iv. After crash, A testifies CC jumped out cab and saw he was limping and offered to pay medical expenses, said he wasn’t looking at road, said he had been drinking at Shooters just before he picked A up 1. Offer to pay medical expenses = excluded under 409 2. Remainder is admission by party opponent to get around HS [801(d)(2)(A)] 3. Remainder will also come in under 408 offers to compromise…NOT a dispute as to validity of claim/amount of claim, therefore 408 will NOT keep out!! v. A testifies 45 minutes after accident A told CC he was going to sue and CC said ‘a suit will be messy; I’d lose my license because of shots, and could possibly go to jail. If it went to trial, I might have a shot at winning…so why don’t I pay for your lost time and overall suffering, $2,000 and call it even, no suit’HINT ‘I was going to sue’ indicates that there is now a dispute…objection 408 offer to settle a dispute 1. Threat to sue = shows that there is a dispute [408 requires] 2. However, vague statement like I am going to seek justice is probably NOT enough vi. A testifies that learned that CC and his company were both insured, which explains why CC drove way he didObjection 411 evidence of insurance is NOT admissible to prove liability or fault!!