Tuesday, August 26, 2008
Because I'm teaching Federal Rule of Evidence 104(b) today, I figured it would be an opportune time to do my first post on this rarely invoked rule of evidence. In United States v. Dillon, 532 F.3d 379 (5th Cir. 2008), former Assistant City Attorney of New Orleans Henry Dillon appealed conviction for depriving two women of their right to bodily integrity under color of law by sexually assaulted them. One of the grounds for his appeal was that the trial court erred by permitting Sheena Cheneau to testify that Dillon sexually assaulted her after he prosecuted a battery case in which she was the victim
The trial court admitted this evidence under the controversial Federal Rule of Evidence 413, which abrogates the ban on propensity character evidence and allows the prosecution in a sexual assault case to present evidence of the defendant's commission of another offense of sexual assault. While the other offense does not have to result in a conviction or even criminal charges, there does need to be sufficient proof that it occurred, which is where Federal Rule of Evidence 104(b) comes into play. Federal Rule of Evidence 104(b), which covers conditional relevance, states that "[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition."
In other words, a judge must admit conditionally relevant evidence if he believes that a reasonable jury could find the conditional fact (the sexual assault on Cheneau) by a preponderance of the evidence. Even if the judge thinks it is more likely than not that the conditional fact did not occur, he must admit the evidence if he thinks that a reasonable juror could find that the fact occurred. This is an extremely liberal standard of admissibility, which is why the Fifth Circuit found that Dillon's argument that Cheneau's allegations had to be corroborated was without merit.
Indeed, as the case I cover in class today notes, a conditional fact does not even require direct evidence and can be established through inference. In that case, Cox v. State, 696 N.E.2d 853 (Ind. 1998), a murder victim had testified against the defendant's close friend, Jamie Hammer, at a bond reduction hearing held four days before he was murdered. The conditional fact to be established in the case was that the defendant in fact learned of the victim's testimony, giving him a motive to murder him. And the Supreme Court of Indiana found that the trial court did not abuse its discretion in finding that Rule 104(b) was satisfied despite a lack of direct evidence that the defendant learned of the victim's testimony. Instead, the court merely found that:
"the State introduced evidence that Cox spent almost every day at the Hammer house where Hammer's mother lived both before and after the bond reduction hearing and up to the time of the shooting. Hammer and Cox were close friends and Hammer's mother attended the hearing. This evidence is sufficient to support the inference that Cox had learned what transpired at the hearing"