Friday, August 26, 2011
3 For 1: Supreme Court Of South Carolina Opinion Addresses 3 Important Evidentiary Issues, Including 2 Errors
South Carolina Rule of Evidence 106, the "rule of completeness," provides that
When a writing, or recorded statement, or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
Meanwhile, South Carolina Rule of Evidence 803(3) provides an exception to the rule against hearsay for
A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
Finally, South Carolina Code section 16–3–659.1(1), South Carolina's rape shield rule, provides that
Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct is not admissible in prosecutions under Sections 16-3-615 and 16-3-652 to 16-3-656; however, evidence of the victim's sexual conduct with the defendant or evidence of specific instances of sexual activity with persons other than the defendant introduced to show source or origin of semen, pregnancy, or disease about which evidence has been introduced previously at trial is admissible if the judge finds that such evidence is relevant to a material fact and issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value. Evidence of specific instances of sexual activity which would constitute adultery and would be admissible under rules of evidence to impeach the credibility of the witness may not be excluded.
If you want a pretty discussion of some of the relevant features of each of these rules, you need look no further than the recent opinion of the Supreme Court of South Carolina in State v. Tennant, 2011 WL 3568527 (S.C. 2011).
In Tennant, Roy Tennant was convicted of criminal sexual conduct in the first degree, kidnapping, and assault and battery of a high and aggravated nature based upon acts allegedly committed against his ex-wife. At trial, the victim testified that she received three letters from Tennant after he sexually assaulted her: (1) the first letter discussed Tennant's belief in God and his desire to be the victim's friend; (2) the second letter was a response to the victim's letter expressing incredulity that he mentioned God after what he had done; and (3) the third letter was an alleged suicide note (which obviously didn't lead to an actual suicide). At trial, the prosecution introduced the second letter, which stated in relevant part
Hey you just can't imagine how happy I was to get your letter. I understand exactly what you [meant] and in response to your letter, I want you to know that I am very deeply sorry for everything that happened back in November and I pray desperately each night that the Lord will help you forgive me and put this behind us an[d] ease your pain. All I can do right now is pray. And its [sic] very important to me that you accept my apology.... [Y]ou will find that the spirit of the Lord will convict you to forgive me for what happened. There are a lot of things that I want to openly express my fe[e]lings about you and the heart of all of this confu[sion]. But to write you a letter explaining fe [e]lings and emotions would may well do more harm than good. Thats [sic] why I haven't done it [al]ready.... [Victim] I need you to forgive me for more than one reason but two. One is because I am real[l]y and tru[ly] sorry for what happened and unless I fe[e]l that you have forgiven me it will be hard for me to be at peace with myself. And the second reason is because I want to do what God expects me to do....
The trial court, however, precluded Tennant from introducing his alleged suicide note into evidence, and the Court of Appeals of South Carolina later affirmed, finding that it was inadmissible under the rule of completeness because it was not written contemporaneously with, or in response to, the first letter. The trial court also precluded Tennant from presenting evidence of prior consensual sexual acts between the victim and him, and the Court of Appeals of South Carolina later affirmed this ruling.
Tennant's appeal of his convictions eventually reached the Supreme Court of South Carolina, which affirmed despite two errors made by the Court of Appeals. First, with regard to the letter, the court noted that
Rule 106 does not require that the writings at issue be written contemporaneously. Rather, the temporal element of Rule 106 concerns the order of proof.... Moreover, Rule 106 does not require that the writings at issue be "responsive to one another." The plain language of the rule permits introduction of "any other part or any other writing...which ought in fairness to be considered contemporaneously." (Emphasis added). The standard here is "fairness," not responsiveness....In sum, the court of appeals erred to the extent it upheld the trial court's exclusion of the purported suicide note on the ground that the note was not written contemporaneously with, or in response to, the apologetic letter introduced by the State.
That said, the South Carolina Supremes found that the suicide letter was properly precluded because "Tennant's note disclaiming responsibility for the alleged crime, while relevant, was not so inextricably connected to the letter introduced by the State that its omission was patently unfair."
The court also found that the letter did not qualify for admission under South Carolina Rule of Evidence 803(3), the state of mind exception to the rule against hearsay. This was because
In the purported suicide note, Tennant recounted that the victim consented to their sexual encounter.... The note was [thus] properly excluded according to the plain language of Rule 803(3) because it was "a statement of memory or belief [offered] to prove the fact remembered or believed."
Finally, with regard to the evidence excluded under the rape shield rule, the Supreme Court of South Carolina concluded that the Court of Appeales misinterpreted the exception(s) to that rule. As noted, under South Carolina Code section 16–3–659.1(1), there is an exception to the rape shield rule for
evidence of the victim's sexual conduct with the defendant or evidence of specific instances of sexual activity with persons other than the defendant introduced to show source or origin of semen, pregnancy, or disease....
Somehow, the Court of Appeals interpreted this exception to mean that evidence of prior sexual acts between the alleged victim and the defendant are only admissible to "show source or origin of semen, pregnancy, or disease." Of course, this makes no sense. The whole point of the "semen, pregnancy, or disease" exception to the rape shield rule is to allow the defendant to prove that the semen found on the victim, the victim's pregnancy, and/or the disease contracted by the victim came from another sexual partner and not the defendant. And, as the South Carolina Supremes correctly noted, this exception is a separate exception from the "sexual conduct with the defendant" exception, which is used to prove that the sexual act between the victim and the defendant was consensual. In other words, the exception(s) in South Carolina Code section 16–3–659.1(1) cover(s):
-evidence of the victim's sexual conduct with the defendant; or
-evidence of specific instances of sexual activity with persons other than the defendant introduced to show source or origin of semen, pregnancy, or disease....
That said, the court found that the evidence that Tennant sought to admit with inadmissible under either of these exceptions and thus affirmed his convictions.