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Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, June 22, 2010

Maxitrial?: First Circuit Finds That Regular Rule 403 Analysis Applies to Rule 415 Rulings

Federal Rule of Evidence 415(a) provides that

(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.

Meanwhile, Federal Rule of Evidence 403 provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

In its recent opinion in Martínez v. Cui, 2010 WL 2404390 (1st Cir. 2010), the First Circuit addressed an issue that has split the courts: Does Rule 403 apply differently in Rule 415 cases than in other cases. According to many courts, the answer is "yes." According to the First Circuit, the answer is "no."

In Cui, Eridiana Martínez brought federal and state claims alleging that Dr. Hongyi Cui, a first-year medical resident, sexually assaulted her by digital rape during an examination when she was an emergency-room patient at the UMass Memorial Medical Center. The Board of Registration in Medicine later

initiated disciplinary proceedings against Cui based on Martínez's allegations, as well as allegations by another woman, B.H., who claimed that Dr. Cui, while still a surgical resident in his intern year, inserted his finger in her vagina during a postoperative exam....The Division of Administrative Law Appeals (DALA) conducted exhaustive proceedings, which included discovery and testimony from dozens of witnesses....[A] DALA magistrate found that Cui had committed no misconduct and recommended that the Board dismiss charges against Cui, which the Board did. The jury was not told this history; it was only informed there had been a prior proceeding.

After the jury found for Dr. Cui, Martínez appealed, claiming, inter alia, that the district court should have admitted B . H.'s testimony as evidence of a similar act in a civil case concerning sexual assault under Federal Rule of Evidence 415(a). Because Martínez did not preserve this objection for appeal, the First Circuit reviewed for plain error.

The First Circuit began by noting that

Rule 415, like its counterparts Rules 413 and 414, was enacted in 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994...and became effective in 1995....The drafters' purpose was to supersede Rule 404(b)'s prohibition on evidence of like conduct showing propensity in sexual assault cases.

The court then agreed "with the conclusion, universal among the courts of appeals, that nothing in Rule 415 removes evidence admissible under that rule from Rule 403 scrutiny." But does Rule 415 change Rule 403 scrutiny? According to the First Circuit,

Some appellate courts have imposed external, judicially crafted rules as to district judges' consideration of evidence under Rule 415. Two circuits have required district courts to apply Rule 403 with "careful attention to both the significant probative value and the strong prejudicial qualities" of this evidence....Others seemingly have instructed district courts to apply Rule 403 less stringently, at least in some cases, to avoid having Rule 403 swallow evidence Congress clearly intended to make admissible....Several circuits have adopted factors district courts can or should consider to evaluate the admissibility of evidence under Rules 415 and 403....And at least one has suggested that appellate courts should more carefully scrutinize district courts' decisions under Rules 413-415.

The First Circuit, however, reject these approaches, finding "no reason to adopt special rules constraining district courts' usual exercise of discretion under Rule 403 when considering evidence under Rule 415, although it did acknowledge that "[o]f course district courts must apply Rule 403 with awareness that Rule 415 reflects a congressional judgment to remove the propensity bar to admissibility of certain evidence." Then, applying the regular Rule 403 analysis, the First Circuit affirmed the district court's ruling, concluding that it was properly based upon two factors:

First, there were significant medical distinctions in the two treatment situations that would have required extensive explanation. Martínez was in an auto accident and "whatever trauma she suffered, it was not in her vaginal or anal area." By contrast, B.H. had undergone surgery for Crohn's disease that basically removed her rectum and anus. "Her intestine was rerouted to a colostomy bag, and she had been suffering from substantial leakage of fecal matter and...fluid into her vagina." Dr. Cui had to perform a postoperative exam to ensure B.H.'s surgical incisions were not bleeding or infected. B.H., heavily sedated on morphine, claimed that she felt-not that she saw-Dr. Cui insert his finger in her vagina. Expert testimony established that she would have had a hard time differentiating what Dr. Cui was touching, and in any event a vaginal exam would have been appropriate.

Second, B.H.'s testimony would have required "a minitrial," indeed something "in the nature of a maxitrial," to probe the complexity of B.H.'s condition, including expert testimony. The record fully supports the district court's evaluation of the underlying facts, which are in truth even more complicated than the recitation that the court gave. That, in turn, fully supports the court's judgment that Martínez's case could get lost in the details of the "maxitrial," which would have been unduly prejudicial and likely to confuse the issues and mislead the jury.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/06/415--martinez-v-cui----f3d------2010-wl-2404390ca1-mass2010.html

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