EvidenceProf Blog

Yesterday's post was the second in a series of four posts dealing with adoptive admissions under Federal Rule of Evidence 801(d)(2)(B) based upon the following fact pattern:

When Husband H confesses to Wife W that he had an affair with another woman, W is speechless. Now W is on trial for murdering the other woman. The prosecution calls H to testify to his admission of adultery.  W objects.

In my first post, I claimed that this statement shouldn't qualify as an adoptive admission admissible against Wife because it was not accusatory toward her. In my second post, I argued that this post shouldn't qualify as an adoptive admission admissible against Wife unless the prosecution could prove that Wife had personal knowledge of the affair before Husband made his statement. And I made the argument despite the fact that personal knowledge is not a prerequiste for the introduction of admissions under Federal Rule of Evidence 801(d)(2)(A) and Federal Rules of Evidence 801(d)(2)(C)-(E). So, what's my justification for treating Rule 801(d)(2)(B) differently? Rightfully or wrongfully, the Federal Rules of Evidence treat Rule 801(d)(2)(B) differently, and I would argue wrongfully.

Federal Rule of Evidence 806 provides that

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

So, for example, if Carl makes a co-conspirator admission that is admitted against his co-defendant Dan but Carl does not testify at trial, Dan can impeach the credibility of Carl as if he were a live witness at trial. He can introduce evidence of Carl's convictions. He can present opinion and reputation testimony indicating the Carl is a liar. He can prove Carl's bias. He can prove that Carl made a prior inconsistent statement. He can contradict Carl's statement with other evidence.

Meanwhile, according to the accompanying Notes of Committee on the Judiciary, Senate Report No. 93-1277,

[The committee considered it unnecessary to include statements contained in rule 801(d)(2)(A) and (B)--the statement by the party-opponent himself or the statement of which he has manifested his adoption--because the credibility of the party-opponent is always subject to an attack on his credibility].

So, let's say that Husband tells Wife in front of Neighbor that he's having an affair and Wife says nothing. Or let's say that Husband accuses Wife in front of Neighbor of having an affair and Wife says nothing. And let's assume that the court deems these statement admissible as adoptive admissions against Wife in her trial for murdering Husband and/or Mistress. Neighbor testifies to these statements and Husband does not testify because he is either dead or otherwise unavailable.

According to Federal Rule of Evidence 806 and the Notes of Committee on the Judiciary, Wife cannot impeach Husband. Instead, once Wife "adopts" Husband's statements, the statements become her own. It's as if she made the statements herself. And because it's as if she made the statements herself, what's the point in allowing her to impeach Husband and show him to be untrustworthy?

Well, here's the point: For the court to deem a statement admissible as an adoptive admission against a party, the court has to find that "the nature of the statement is such that it normally would induce the party to respond...." Pursuant to Federal Rule of Evidence 104(a), the court needs to make that finding by a preponderance of the evidence. In other words (assuming that all of the other elements are satisfied), the court will admit the statement upon a mere finding that it is more likely than not that  "the nature of the statement is such that it normally would induce the party to respond...."

So, if the court allows for the admission of Husband's statements, what would be Wife's likely response? Well, I think that she would try a two-pronged attack. (1) While the court found by a preponderance of the evidence that a normal person would have rebutted Husband's statements, here are reasons why I did not, and (2) Husband is untrustworthy, so you shouldn't believe what he said.

So, with regard to (1), Wife might want to present different types of evidence. She might want to testify that she didn't respond because she regarded the matter as private and didn't want to discuss it in front of Neighbor. She might want to testify that she feared that if she responded, the situation might turn loud and/or violent because Husband had been drinking. She might say that she didn't care what Neighbor would think of her and thus she said nothing. You get the point. You could easily see Wife arguing, and the jury believing, that Wife's silence was not an adoption/endorsement of Husband's statement despite the statement being admissible as an adoptive admission. And nothing in the Federal Rules of Evidence would prevent her from making these arguments.

But once the court deemed Husband's statements admissible as adoptive admissions under Rule 801(d)(2)(B), they became nonhearsay admissible to prove the truth of the matter asserted. Therefore, even if the jury believed that Wife did not adopt Husband's statement, they could still use the statement to prove the truth of the matter asserted, i.e., they could use them to prove that Husband was having an affair and/or that Wife was having an affair.

Thus, with regard to (2), Wife might want to present different types of impeachment evidence. She might want to present evidence of Husband's prior perjury conviction. She might want neighbors to testify that Husband has a reputation for being a liar or that, in their opinion, he's a liar. With regard to Husband's statement that Wife was having an affair, let's say that Husband told Friend, "My wife would never cheat on me." One hour later, Husband learned that Wife filed for divorce based upon spousal abuse. One hour later, Husband accused Wife in front of Neighbor of having an affair.

The way I read Rule 806, none of this evidence would be admissible to impeach Husband. And I think that most would agree that this makes no sense. Indeed, look at the last example above. In this situation, it seems clear that Husband is making up his allegation that Wife was cheating based upon her filing for divorce. And his statement to Friend 2 hours earlier would constitute a classic prior inconsistent statement admissible to impeach Husband if he took the witness stand and accused Wife of cheating. But because his statement is being admitted under Rule 801(d)(2)(B), Rule 806 tells us that his prior inconsistent statement is not admissible to impeach him. In other words, the jury would never hear that Husband told Friend that Wife would never cheat on him.

The hypothetical that touched off this series of posts is more academic than real world because even if Husband's statement to Wife that he was cheating were not admissible as an adoptive admission under Rule 801(d)(2)(B), it would still be admissible to prove effect on  the listener, i.e., to prove that it gave Wife reason to believe that Husband was having an affair and a motive to kill Husband and/or Mistress. And arguably that is the only probative value of the statement.

That, however, is not (necessarily) the case with Husband's statement accusing Wife of adultery. Let's assume that the prosecution's theory of the case is that Wife killed Husband so that she could run away with the man with whom she was having an affair. In that case, Husband's statement accusing Wife of having an affair would be very probative to prove that affair, especially if it was otherwise unclear whether Wife was having an affair. In this case, then, shouldn't Wife be allowed to impeach Husband?

Pursuant to the language of Rule 806, the answer is "no." I think that's the wrong answer. That's not the point, though. The point is that Rule 806 makes clear that courts treat Rule 801(d)(2)(B) admissions differently from admissions under Federal Rule of Evidence 801(d)(2)(A) and Federal Rules of Evidence 801(d)(2)(C)-(E). So, why should the nonrequirement of personal knowledge under the latter Rules apply to the former Rule?

-CM

Adoption Stories, Take 2: Why I Think There Should Be A Personal Knowledge Requirement For Adoptive Admissions

Yesterday's post was the first in a series of four posts dealing with adoptive admissions under Federal Rule of Evidence 801(d)(2)(B) based upon the following fact pattern:

When Husband H confesses to Wife W that he had an affair with another woman, W is speechless. Now W is on trial for murdering the other woman. The prosecution calls H to testify to his admission of adultery.  W objects.

As I noted yesterday, the first problem with the prosecution trying to admit Husband's statement as an adoptive admission under Rule 801(d)(2)(B) to prove that Husband was in fact having an affair (the statement would be admissible to prove its effect on the listener) is the statement is not accusatory with regard to Wife. It doesn't accuse her of anything and thus could not qualify as an adoptive admission. The second potential problem for the prosecution would or at least should (in my view) be Wife's apparent lack of personal knowledge of the affair.

Federal Rule of Evidence 801(d)(2) sets forth five types of admissions that are defined as "not hearsay" under the Federal Rules of Evidence. It is well established that the other four types of admissions do not require personal knowledge. See, e.g., Mahlandt v. Wild Candid Survival & Research Center, Inc., 588 F.2d 626, 630 (8th Cir. 1978). And this makes sense. In the case of an admission by a party-opponent, the party can't complain that her admission is inadmissible because she lacked personal knowledge. If Wife said to Friend, "My Husband is having affair," the prosecution would like to try to admit this statement against Wife at her trial for murdering Husband and/or Mistress to prove her motive for the murder(s). Wife's claim that this statement should be inadmissible because her statement was mere conjecture would and should fall on deaf ears. She made the damaging statement, and she has to live with it. Moreover, as a party, Wife can always take the stand and explain away the statement.

With authorized, employee, and co-conspirator admissions under Federal Rule of Evidence 801(d)(2)(C)-(E), a similar logic holds. If Friend were Wife's co-conspirator in a conspiracy to kill Husband and/or Mistress, Friend would be Wife's representative, her agent. Therefore, statements made by Friend during the course of and in furtherance of the conspiracy would be attributable to Wife, and she couldn't claim that Friend lacked personal knowledge of the facts contained in her co-conspirator admissions. And the same logic applies to authorized and employee admissions. The authorizee and employee are similarly representatives, agents of the party.

With adoptive admissions under Federal Rule of Evidence 801(d)(2)(B), however, the person making the subject statement is not the party's representative. When Husband tells Wife that he is having an affair, he is not speaking on her behalf. His statement, when made, is not attributable to her. The theory, though, is that when someone makes a statement in the presence of a party that would normally call for a response, the party's silence or response that does not rebut the statement in effect adopts the statement, makes it the party's own. And it seems that for this adoption to happen, the party should need personal knowledge of the contents of the statement.

If for instance, Wife did not previously know that Husband was having an affair, why would she rebut the statement? The answer is that she wouldn't/couldn't because she would have no idea whether Husband was or was not having an affair. That being the case, why should Wife's silence constitute an adoption of Husband's statement? For some courts, its shouldn't.

According to the court in White Industries, Inc. v. Cessna Aircraft Co., 611 F.Supp. 1049, 1063 (W.D.Mo. 1985), for a statement to qualify as an adoptive admission,

the statement must deal with a matter within the personal knowledge of the party-opponent. [FN5] McCormick on Evidence, supra at 653. This is so even if Rule 801(d) is viewed as having generally dispensed with the requirement of first hand knowledge in connection with admissions, see Mahlandt v. Wild Canid Survival & Research Center, Inc., 588 F.2d 626, 630–31 (8th Cir.1978), for the reasons so well expressed in McCormick, supra:

FN5. In the present sort of context, I take this to mean that the matter must be within the personal knowledge of the employee to whom the statement was made, or of other company personnel to whom the matter was referred or reported.

"At first glance, this requirement may appear inconsistent with the general dispensation with firsthand knowledge with respect to admissions, yet the unreasonableness of expecting a person to deny a matter of which he is unaware seems evident; he simply does not have the incentive or wherewithal to embark upon a dispute."

Other courts, however, hold that a party doesn't need personal knowledge of the contents of a statement to adopt it. Check out this quote from Pillsbury Co. v. Cleaver Brooks Division of Aqua-Chem, Inc., 646 F.2d 1216, 1218 n.2 (8th Cir. 1981): "This court previously has held, however, thatpersonal knowledge is not a prerequisite for the adoption of another's statement pursuant to Rule 801(d)(2)(B) of the Federal Rules of Evidence." And then there's this quote from Grundberg v. Upjohn Co., 137 F.R.D. 365, 370 (Utah 1991): "Even if the person adopting the statement had no personal knowledge or first hand information about the reports, if a person manifests their acceptance of information, the admission by adoption is admissible non-hearsay evidence."

Now, in fairness, the parties in both Pillsbury and Upjohn did not merely remain silent in the face of someone else's statement. Instead, Upjohn, submitted the statements to the FDA and a Pillsbury supervisor signed the statement. And maybe in those circumstances, personal knowledge should not be required. But when Husband says he's having an affair and Wife says nothing in response, I think that personal knowledge should be required.

-CM

Adoption Stories: Can A Husband's Admission Of An Affair Be Used As An Adoptive Admission Against His Wife?

Yesterday on the Evidence Professor Listserv, Professor David H. Kaye asked the following interesting question:

When Husband H confesses to Wife W that he had an affair with another woman, W is speechless. Now W is on trial for murdering the other woman. The prosecution calls H to testify to his admission of adultery.  W objects.

The obvious response is that the statement is not hearsay because it is introduced only to show its effect on the hearer, giving her a motive for the murder regardless of whether H's statement was true. But is the following argument also valid: Although W said nothing, she looked shocked and sad. In this way, "the party manifested that it...believed [H's statement] to be true"? FRE 801(d)(2)(B). 

On the one hand, silence is not usually a statement unless the circumstances are such that the party would be expected to contradict the speaker. On the other hand, this is not a statement that accuses the party of anything. Is W's silence in this context, or at least her facial expressions, enough to manifest her belief?

Professor Kaye's question raises four separate issues connected to adoptive admissions under Federal Rule of Evidence 801(d)(2)(B) that I will address over the next four days.

Federal Rule of Evidence 801(d)(2)(B) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement of which the party has manifested an adoption or belief in its truth....

Assume that Husband had said in front of Wife and Neighbor that "Wife murdered Mistress." If Wife responded, "Yeah, I killed her, and I would do it again if I had the chance," it is clear that Wife adopted Husband's admission under Rule 801(d)(2)(B), making it admissible against her at her criminal trial for murdering Mistress. The same conclusion would hold if Wife said nothing in response to Husband's statement because "the nature of the statement is such that it normally would induce the party to respond...." United States v. Duvall, 496 F.3d 64, 76 (1st Cir. 2007). In other words, if someone accused you of murder, you normally would respond that you did not commit the murder so that others (such as Neighbor in the example) wouldn't be left with the misimpression that you are a criminal/murderer.

But does a statement need to be accusatory with regard to the party for Rule 801(d)(2)(B) to apply? Reconsider the hypothetical given by Professor Kaye. In that hypothetical, Husband told Wife that he was having an affair, and Wife said nothing in response. Was the nature of Husband's statement such that it normally would induce Wife to respond? In a broad sense, I think that the answer might be "yes." But for Rule 801(d)(2)(B) purposes, the answer seems to be "no." 

The following statement of the Tenth Circuit in United States v. Wolf, 839 F.2d 1387, 1395 n.5 (10th Cir. 1988), is representative in this regard: "Where a person hears, understands and has the opportunity to deny an accusatory statement made in his presence, the statement and his failure to deny it are admissible against him as an adoptive admission." 

In other words, for a statement to potentially qualify as an adoptive admission by a party, the statement must accuse the party of something. An individual might normally respond to all sorts of statements such as, "How is your day going?" or "What did you have at lunch?" but it is only statements accusing a party of something that can qualify as adoptive admissions.

And I think that this makes sense. If we want to use the statement of someone who is not a party's representative to convict a defendant or render invlaid a claim or a defense by a civil plaintiff or defendant, we want to make sure that the party in fact adopted that statement as if he made it himself. If a statement merely implicates the speaker, we lack such certainty. 

-CM

Terror Alert: 11th Circuit Finds Special Agent's Testimony Navigated Fine Line, Didn't Violate Rule 704(b)

Federal Rule of Evidence 704(b) provides that

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Here are three examples of testimony by a Special Agent at a defendant's trial for terrorism-related crimes. Does this testimony violate Rule 704(b)?:

Example 1:

Q: Now, at the end of the clip...when Elie Assaad says, "What’s your plan?" and Batiste says, "To build Islam Army" and then further down, "an Islamic Army for Islamic jihad," what effect did that have on this investigation?

A. The effect that it had was it further established what Batiste’s intentions were, which was to build an organization by recruiting members from the local community and determining which of those members would be trusted with the ultimate objectives, which was to—which was advocating the overthrow of the United States Government and waging some kind of war in the streets.

Example 2:

Q: Agent Velazquez, at the beginning of this clip, where Narseal Batiste says, “It has to be more than just a bombing. It has to be a real ground war ‘cause somehow or other you got to get the civilians, you have to get the people involved, make them go crazy,” what effect did that statement have on your investigation, if any?

A: It basically established that Batiste is laying out his business model for what his intentions and the ultimate intentions of his organization are, which is the overthrow of  the U.S. Government by creating a civil war, if you will, [by] creating chaos and confusion in the streets.

Example 3:

Q: What effect did this list, requesting these types of weapons, have on your investigation?

A: It further established that we needed to continue validating information we were receiving, as we did with the follow-up of the items on the list, and gather more information on other members of Batiste’s organization and the extent to which he had access to other parts of the country and other people.

According to the recent opinion of the Eleventh Circuit in United States v. Augustin, 2011 WL 5141523 (11th Cir. 2011), the answer is "no." In Augustin, 

Burson Augustin, Stanley Grant Phanor, Patrick Abraham, Rotschild Augustine, and Narseal Batiste (collectively, “Appellants”) were all convicted of (1) conspiracy to provide material support to a Foreign Terrorist Organization (Al Qaeda) by agreeing to provide personnel (including themselves) to work under Al Qaeda's direction and control, knowing that Al Qaeda has engaged or engages in terrorist activity, in violation of 18 U.S.C. § 2339B; and (2) conspiracy to provide material support by agreeing to provide personnel (including themselves), knowing and intending that they were to be used in preparation for and in carrying out a violation of 18 U.S.C. §§ 844(f)(1) and (i), and to conceal and disguise the nature, location, source, and ownership of such material support, all in violation of 18 U.S.C. § 2339A. Abraham and Batiste were also convicted of conspiracy to maliciously damage and destroy by means of an explosive a building leased to an agency of the United States (the FBI) and a building used in interstate and foreign commerce (the Sears Tower), all in violation of 18 U.S.C. § 844(n). Additionally, Batiste was convicted of conspiracy to levy war against the Government of the United States and to oppose by force the authority thereof in violation of 18 U.S.C. § 2384.

Batiste's defense at trial "'was that he was simply pretending to conspire with the purported terrorist[s], and posturing for the purpose of ripping them off, or scamming them out of money.'" After he was convicted, Batiste appealed, claiming that, based upon his defense, the jury was tasked with deciding whether he "meant what he said," and that testimony such as in the three examples above was admitted in violation of Rule 704(b) because it implied that his true intent was to commit the charged offenses.

The Eleventh Circuit disagreed, concluding that

We do not find this argument convincing. We note that [the Special Agent] was not asked to testify directly to the state of mind of Batiste. Instead, he was asked about the effect of Batiste's statements on the course of the investigation. In other words, [the Special Agent] testified as to what an observer perceiving Batiste's outward manifestations would take to be Batiste's intentions—and not what Batiste's actual state of mind was. We acknowledge that this is a very fine line. In light of the specific questions that prompted the challenged testimony, however, we are confident that [the Special Agent] left the ultimate issue of Batiste's state of mind for the jury to decide....We therefore conclude that the testimony did not violate Rule 704(b).

-CM 

The Oh In Ohio: Court Of Appeals Of Ohio Shockingly Concludes Rape Shield Rule Doesn’t Cover Nonconsensual Sexual Activity

We disagree with Michael to the extent that it stands for the proposition that the rape shield law has any application to prior sexual abuse suffered by a child victim. In construing the rape shield statute, "our paramount concern is the legislative intent" in enacting it....To discern this intent, we must "read words and phrases in context according to the rules of grammar and common usage."...Ohio's rape shield law prohibits evidence of "specific instances of the victim's sexual activity" unless one of four exceptions applies. The statute's reference to "specific instances of the victim's sexual activity" connotes volitional activity by the victim with another and not involuntary activity such as that which would stem from being subjected to sexual abuse. State v. Stoffer, 2011 WL 4579182 (Ohio App. 7 Dist. 2011).

In my research on rape shield rules from across the country, this is the first example that I could find in which a court categorically concluded that a rape shield rule does not preclude the admission of evidence of other acts of child sexual abuse committed against the alleged victim. Moreover, this quote strongly implies that the Court of Appeals of Ohio, Seventh District would find that the rape shield rule also does not preclude the admission of evidence of other rapes or sexual assaults committed against an allegedadult victim, a reading borne out by this later passage in the court's opinion:

[W]e construe that the legislative intent of Ohio's rape shield law was to address only past consensual sexual activity of the victim and not prior sexual abuse suffered by the victim.

In this post, I will explain why I think that Stoffer is not only horribly misguided but also dangerous.

In Stoffer, Michael Stoffer was convicted of two counts of gross sexual imposition and three counts of illegal use of a minor in nudity-oriented material or performance based, inter alia, upon acts he allegedly committed against his 7 year-old daughter, A.P. At trial,

Stoffer proffered the testimony of Jamie Kemats, a guidance counselor at A.P.'s school. She testified that in January 2008 A.P.'s brother B.P. had reported that another student touched A .P. in gym class. Kemats interviewed A.P. about the incident and confirmed B.P.'s report. The police were summoned and Kemats later learned from the principal that the five-year-old offender admitted to the incident and was removed from the school.

Stoffer claimed that "[b]ecause the incident was of the same nature and occurred around the same time as the crimes charged in the superseding indictment,...the jury should know about it." The trial court disagreed, concluding that evidence of the incident was inadmissible under Ohio's rape shield rule, R.C. 2907.05(E), which provides in relevant part that

Evidence of specific instances of the victim’s sexual activity, opinion evidence of the victim’s sexual activity, and reputation evidence of the victim’s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim’s past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

The Court of Appeals of Ohio, Seventh District disagreed. In reaching this conclusion, the court initially cited to the opinion of the Court of Appeals of Ohio, Second District, in In re Michael, 694 N.E.2d 538 (Ohio App. 2 Dist. 1997). In In re Michael, the defendant allegedly raped an 8 year-old and claimed that the trial court erred by precluding him from presenting witness testimony and Children Services records indicating that other individuals had sexually abused the alleged victim. The defendant acknowledged that this evidence was inadmissible under Ohio's rape shield rule but claimed that the trial court had to allow him to present it pursuant to his Sixth Amendment right to present a defense.

The Court of Appeals of Ohio, Second District agreed that the defendant had the right to present some evidence of other sexual abuse because otherwise the jury would perceive the alleged victim as a "sexual innocent" and "believe the sexual experience he described must have occurred in connection with the incident being prosecuted; otherwise, he could not have described it." That said, the appellate court found that the trial court did allow the defendant to present some evidence of this other abuse and that the trial court's "application of the rape shield statute" to exclude other evidence of this abuse "did not unconstitutionally infringe upon Bryan's right to present evidence in his defense."

As noted in the block quote that opened this post, the Court of Appeals of Ohio, Seventh District disagreed in Stoffer, initially concluding that

We disagree with Michael to the extent that it stands for the proposition that the rape shield law has any application to prior sexual abuse suffered by a child victim. In construing the rape shield statute, "our paramount concern is the legislative intent" in enacting it....To discern this intent, we must "read words and phrases in context according to the rules of grammar and common usage."...Ohio's rape shield law prohibits evidence of "specific instances of the victim's sexual activity" unless one of four exceptions applies. The statute's reference to "specific instances of the victim's sexual activity" connotes volitional activity by the victim with another and not involuntary activity such as that which would stem from being subjected to sexual abuse.

The court then went on to hold that

This interpretation of Ohio's rape shield statute is supported by the General Assembly's use of the “victim's sexual activity” throughout that provision. The statute specifically prohibits opinion and reputation evidence of the victim's sexual activity. Opinion and reputation evidence are methods of proving character. Evid.R. 405. Character is generally thought to include qualities, like honesty and integrity, over which that person has control. Therefore, when the General Assembly sought to protect a victim from opinion and reputation evidence, it was contemplating evidence of a victim's sexual history over which they had control.

The state interests identified by the Ohio Supreme Court in Gardner, supra, which are advanced by the rape shield law also support this understanding of the “victim's sexual activity.” It is hoped that guarding the victim's sexual privacy and protecting them from undue harassment encourages the reporting of rape, thus aiding crime prevention. Interpreting the rape shield statute to exclude evidence of past sexual abuse does not further these state interests. While sexual abuse victims may very understandably be reluctant to disclose past instances of sexual abuse, that discomfort is different from the undue harassment that rape shield statutes were enacted to protect against—undue harassment that may be caused by the revelation of one's own history of questionable voluntary or consensual sexual activity.

Ultimately, the court concluded that

Based on the foregoing, we construe that the legislative intent of Ohio's rape shield law was to address only past consensual sexual activity of the victim and not prior sexual abuse suffered by the victim. Therefore, the rape shield statute has no application in this case and the trial court erred in applying it.

So, why are these conclusions all kinds of wrong?

Specific instances of the victim's sexual activity≠Only consensual activity

First, I'm not sure that I buy the court's logical leap from the presupposition that courts "read words and phrases in context according to the rules of grammar and common usage" to the conclusion that the same rules that apply to character evidence should apply to rape shield evidence simply because Rules 404-405 and the rape shield rule both reference "reputation" and "opinion" testimony. Both Federal Rule of Evidence 610 andOhio Rule of Evidence 610 preclude the admission of

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.

Is religious belief/opinion volitional? I suspect that some would say that it is. I suspect that many others would say that it is not. And if we believe that it is not, why shouldn't Rule 610, which covers opinion testimony, guide how courts construe the rape shield rule and mean that even nonvolitional sexual activity is covered by the rape shield rule?

Second, even if the court is right that the character evidence rules should govern our understanding of how to interpret the rape shield rule, the court is patently wrong that the character evidence rules only govern volitional/consensual actions. Let's say that a defendant is charged with murder. And let's say that the prosecution has evidence that the victim stole drugs from the defendant in the past. If the prosecution tries to use this evidence to prove that the murder was likely drug-related because the past drug incident established the defendant's propensity to engage in drug transactions, the evidence would be inadmissible under Federal Rule of Evidence 404(b)/Ohio Rule of Evidence 404(b), which both provide that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith."

Both of these rules, however, provide that evidence of these other crimes, wrongs, or, acts are admissible to prove other purposes such as motive. Thus, evidence that the victim previously stole drugs from the defendant would be admissible to prove that the defendant had a motive to kill the victim. And indeed, this is exactly what the Court of Appeals of Michigan found in People v. Kennedy, 2007 WL 3309995 (Mich.App. 2007) based upon the exact facts stated above: Evidence of the prior drug theft was admissible, but only for the limited purpose of proving the defendant's motive to kill the victim.

In other words, evidence that drugs were taken from the defendant without his consent/volition was character evidence and only admissible against the defendant if offered for a permissible purpose. This being the case, why shouldn't the same analysis apply to the rape shield rule when prior sexual acts are committed against the alleged victim without her consent/volition?

Third, let's take the court's conclusion to its logical extreme. Here's a classic case in which everyone agrees that the rape shield rule applies: A defendant is charged with the homosexual rape of an alleged victim, and the defendant wants to present evidence that the alleged victim is homosexual. The defendant's theory is obvious: Because the alleged victim is homosexual, this evidence proves that (s)he has a propensity to consent to homosexual acts and that (s)he likely acted in conformity with that propensity, and thus consented, at the time of the crime charged.

Unlike evidence of past child molestation/sexual assault/rape, such evidence clearly goes to the issue of consent and is thus inadmissible under rape shield rules. Indeed, thefederal rape shield rule explicitly precludes the admission of evidence of an alleged victim's sexual predisposition, and evidence of homosexuality clearly constitutes evidence of sexual predisposition. And while some still hold on to the belief that sexual preference is a choice, I think that most people now rightfully realize that it is not a choice. Sexual preference is not volitional. Pursuant to the court's opinion in Stoffer, that would make it admissible without regard to the rape shield rule.

Excluding evidence of past child sexual abuse furthers state interests

I am flabbergasted by the conclusion of the Court of Appeals that "[i]nterpreting the rape shield statute to exclude evidence of past sexual abuse does not further...state interests" in "guarding the victim's sexual privacy and protecting them from undue harassment[,] encourag[ing] the reporting of rape, thus aiding crime prevention." Really? Take the case of In re Michael. The defendant wanted to present evidence that the alleged child victim was sexually abused to prove that the child victim was fabricating allegations of molestation against him and was able to do so convincingly based upon prior acts of chld molestation committed against him.

Is the court in Stoffer trying to argue that the admission of such evidence does not invade the child victim's privacy? That deeming such evidence outside the scope of the rape shield rule wouldn't deter a child victim from reporting prior acts of child molestation? In fairness to the court, the answer is "no." But doesn't that actually make the court's opinion worse? According to the court,

While sexual abuse victims may very understandably be reluctant to disclose past instances of sexual abuse, that discomfort is different from the undue harassment that rape shield statutes were enacted to protect against—undue harassment that may be caused by the revelation of one's own history of questionable voluntary or consensual sexual activity.

So, even though reading the rape shield rule to cover other acts of child molestation would protect the privacy of alleged victims and diminish their reluctance to report, the court was unwilling to do so because such acts were not in the minds of drafters of rape shield rules?

My response: Shit happens. In response to the assassination of John Lennon and the assassination attempt on Ronald Reagan, Congress enacted Federal Rule of Evidence 704(b), which provides that

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Although this rule was "enacted to limit psychiatric testimony when a criminal defendant relies upon the defense of insanity," courts have since found that it "applies to all instances in which expert testimony is offered as to the mental state or condition constituting an element of the crime charged or defense thereto," often to the detriment of prosecutors. United States v. Boyd, 55 F.3d 667, 671 (D.C. Cir. 1995).

Shit happens. Ohio's rape shield rule states that "[e]vidence of specific instances of the victim’s sexual activity, opinion evidence of the victim’s sexual activity, and reputation evidence of the victim’s sexual activity shall not be admitted" unless an exception applies. Evidence of child molestation is evidence of a specific instance of the victim's sexual activity. It therefore should not be admissible unless an exception applies. I refer the Court of Appeals to the law of intended consequences.

The rape shield rule should cover evidence of past rapes of adult victims

But did the drafters of rape shield rules really not intend them to cover nonconsensual sexual activity? As noted, there is an exception to Ohio's rape shield rule that allows for the admission of evidence of specific instances of the victim’s sexual activity to prove the origin of, inter alia, semen. Federal Rule of Evidence 412(b)(1)(A) has a similar exception allowing for the admission of such evidence "to prove that a person other than the accused was the source of semen, injury, or other physical evidence."

So, when does this exception typically come into play? Defendant is charged with raping Victim, and the prosecution has evidence of injuries suffered by Victim such as a vaginal abrasion. Defendant admits to sexual intercourse with Victim but claims that it was consensual and that the injuries came from another act of nonconsensual sexual abuse committed against Victim. As the Supreme Court of Maine noted in State v. Drewry, 946 A.2d 981, 993 (Me. 2008), under this type of exception, such evidence is sometimes admissible "to 'generate doubt as to [the defendant's] participation in abuse,' even where that evidence involves 'inquiry into any evidence of abuse."

Doesn't the very existence of this type of exception establish that rape shield rules were meant to cover nonconsensual sexual activity? After all, why would evidence of nonconsensual sexual activity only be admissible under an exception to the rape shield rule, and only if offered for a certain purpose, if the rape shield rule does not preclude the admission of nonconsensual sexual activity in general?

-CM

Finding Evidence on Facebook

I blogged earlier about looming questions on the evidence horizon as to the admissibility of electronic communications on social networking sites like Facebook.  In my last guest post (thanks again Colin!), I wanted to briefly touch on a precursor to that question – the ability of litigants to get at social media information, and particularly information stored on Facebook.  One of the most important rules of Evidence is that if you don’t have it, it is not admissible.  See A Few Good Men (1992) (Tom Cruise explains:  “It doesn't matter what I believe. It only matters what I can prove!")

Litigants are increasingly recognizing Facebook as a valuable source of evidence.  But how do you get at that evidence?  There are three obvious approaches: 

First, you can simply fire up your computer and access any publicly available portions of a Facebook profile.  This method of obtaining data is the easiest, but also the least likely to turn up anything valuable.  In some cases, though, private data may be available through a turncoat “friend.”  For example, one of your “friends” (and lots of people have hundreds of "friends") may find your bragging about a bank robbery or alligator killing unseemly and forward it on to law enforcement (as happened here).   Here is a case where a fugitive’s “friends” included a law enforcement official.  Not good.

Second, litigants can obtain access to “private” areas of a Facebook account through a discovery order directed at the person whose account it is.  There appear to be few, if any obstacles, to obtaining information in civil litigation in this manner.  See Patterson v. Turner Construction Co., N.Y.A.D. 1 Dept. (Oct. 27 2011) (“The postings on plaintiff's online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service's privacy settings to restrict access . . . , just as relevant matter from a personal diary is discoverable.”); cf. Derek Witte, Your Opponent Does Not Need a Friend Request to See Your Page, 41 McGeorge L. Rev. 891, 900 (2010).  Yikes!

Finally, and most interestingly, litigants may try to obtain access directly from Facebook.  One of the benefits of this approach is that Facebook may have access to a great deal more historical data than the individual Facebook account holder.  Also, if you are the government investigating a criminal case, you can generally expect more cooperation (and less incessant objecting) from Facebook than the target of your investigation.

Here is where things become complicated.  If you are a civil litigant, your access to Facebook’s files might be blocked by the Stored Communication Act.  See Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 969 (C.D.Cal. 2010) (holding that Stored Communication Act required quashing of subpoena directed at MySpace and Facebook); Witte, at 899.

If you are the government, however, you are in luck.  The same Stored Communications Act sets forth a streamlined process for the government to get access to Facebook postings relevant to a criminal investigation.  See Junichi Semitsu, From Facebook to Mug Shot, 31 Pace Law Rev. 291, 360 (2011); Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 Geo. Wash. L.Rev.. 1208 (2004).

Much of this law is complicated by intersecting statutes and ambiguous statutory definitions.  But one thing is clear.  As litigants and courts begin to figure it out, electronic communications broadcast in unguarded moments of false privacy and conveniently preserved for future litigants will become a common aspect of modern litigation -- whether or not (as I blogged earlier) modern evidence law is ready . . . .

- Jeff Bellin

EvidenceProf Blog's 5th Annual Halloween Movie Pick: Takashi Shimizu's "The Grudge"

It's Halloween again, which means that it's time for EvidenceProf's Blog's fifth annual Halloween movie pick (after "The Gift," "Homecoming," "Henry: Portrait of a Serial Killer," and "The Spiral Staircase."). For this year's pick, I'm once again digging into the archives from my days reviewing DVDs and pulling out a review. Ths year's pick is the director cut of "The Grudge," Takashi Shimizu's English-language remake of "Ju-On." 

The Grudge: Unrared Extended Director's Cut

In recent years, studios have frequently released raunchier, unrated versions of PG-13 comedies on DVD, but The Grudge: Unrated Extended Director's Cut uses the technique to its best effect, releasing an emasculated horror movie from the MPAA's shackles. Takashi Shimuzu's The Grudge could just as easily be titled Ghost House, name of the production company Sam Raimi and producer pal Robert Tapert christened for this film and, in the future, to provide a forum for other young horror directors like the 32 year-old Shimuzu.

But those expecting Raimi's brand of Three Stooges horror will be disappointed. From the shocking opening sequence, this film swan dives into a persistently dour tone (although, like Raimi's Evil Dead 2, this is essentially a remake of Shimuzu's original: Ju-On). What they will find, though, is an atmospheric haunted house yarn about a curse interweaving the lives of (mostly) American expats that's better than its rote script (think The Amityville Horror with a touch of Lost in Translation).

The director's cut isn't an earthshattering re-imagining of the film but it does allow Shimuzu to punctuate several scenes with extended gore -- especially the final act's reveals -- and accentuate two areas he monitored closely. First, in this cut, frequent Miguel Artera editor Jeff Betancourt's ability to wring creepy tension seems even more transferable from indie flicks like Chuck & Buck to the horror genre. Second, the tone established by cinematographer Hideo Yamamoto's lensing of twilight reflections and shadowy staircases recalls his work in the disturbing Audition, still the best Japanese horror film I've seen.

The 1:85 anamorphic widescreen transfer looks decent considering the film's sub-$10 million budget and Dolby Digital 5.1 emboldens horror soundtrack maestro Christopher Young's (Hellraiser) stringy crescendoes. The subtitled Japanese language commentary by Shimuzu, producer Taka Ichise, and actress Takako Fuji is essential for fans of Japanese horror. They combine detailed production, filmmaking, and East vs. West notes with enjoyable self-deprecation in the John Carpenter vein. It's even better than the track with Raimi and friends on the theatrical cut's DVD.

Most of the 15 deleted scenes, according to Shimuzu himself in optional commentary, consist of needless exposition and character (under)development added by novice American screenwriter Stephen Susco. But a few tingling scares are included. The free-form short films 4444444444 and In a Corner display Shimuzu sharply cutting his horror teeth and, along with "Sights and Sounds: The Storyboard Art of Takashi Shimuzu," serve as templates for the movie. A brief featurette on Iwao Saito's (Ringu) production design showcases set development, unlike the worthless "The Grudge House: An Insider's Tour."

Sarah Michelle Gellar and KaDee Strickland contribute video diaries but only the latter, a breezy Tokyo tour, merits a spin. The same might be said of this Director's Cut, a significant improvement over the theatrical cut.

-CM 

Forward Bias: Middle District Of Alabama Applies Rule 613(b) To Extrinsic Evidence Of Bias

Federal Rule of Evidence 613 provides that

(a) Examining witness concerning prior statement.

In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of witness.

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

So, under Rule 613(b), extrinsic evidence of a witness' prior inconsistent statement is only admissible if "the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require." So, does the same hold with regard to extrinsic evidence of a witness' bias? According to the recent opinion of the United States District Court for the Middle District of Alabama in Johnson v. Alabama Community College System, 2011 WL 5078776 (M.D.Ala. 2011), the answer is "yes."

In Johnson, several plaintiffs brought a class action against the Alabama Community College System and related entities, alleging that they were discriminated against through the use of the C-3 salary schedule or the defendants' manipulation thereof.

Before trial, the defendants filed objections to certain exhibits, including a letter which allegedly would have shown that a defense witness was biased against one of the plaintiffs. The Middle District of Alabama deferred its ruling on the admissiblity of this letter initially noting that if the letter did show that a defense witness was biased, it would have been admissible without regard to Federal Rule of Evidence 608(b). The court then noted that

There is a split of authority as to whether a foundation must be laid, and a witness given a chance to comment on the potential bias-proving evidence, before extrinsic evidence of bias is introduced. 27 Charles Allen Wright & Victor James Gold, Federal Practice and Procedure § 6095 (1990). Because confusion of the issues potentially may substantially outweigh the probative value of this evidence, should [plaintiff] Ward seek to use Exhibit 199 to establish bias of a testifying witness, she must first inquire about the fact of [the letter writer]'s complaint, as provided in Rule 613. 

Here's the relevant portion of Wright & Gold cited by the court:

Authorities are split as to whether an impeaching party must give a witness a chance to explain or deny other facts indicating bias, such as the witness' conduct, as a condition to the admissibility of extrinsic evidence of those facts. Some commentators suggest no foundation is required because Rule 613 applies only to statements, not conduct. But the flaw in this argument is that Rule 613 has no direct connection to bias impeachment. As noted above, Rule 613 is persuasive in this context, but only as a guide to how discretion under Rules 403 and 611 should be exercised. The goals of those rules suggest that courts sometimes should require an impeaching party give the witness an opportunity to explain conduct indicating bias before extrinsic evidence is admitted. If mere words can be ambiguous indicators of bias, conduct can present even greater problems of interpretation. Thus, the witness' explanation of her conduct may be essential to drawing the proper inferences about bias. Further, time may be saved by giving the witness a chance first to admit to the conduct in question if, in so doing, extrinsic evidence on the subject becomes unnecessary.

Based on the discretionary nature of the powers created by Rules 403 and 611, it seems appropriate to treat this issue, like the others just discussed, with flexibility. In fact, given the broad discretionary powers granted by Rules 403 and 611, trial courts should have the flexibility to dispense with any foundation for extrinsic evidence whenever the interests of promoting the truth and saving time so require.

-CM