March 24, 2012
Without Prejudice?: 6th Circuit Deems Rape Shield Evidence Minimally Prejudicial To Victim, Reverses Conviction
The district court excluded the 2007 acts because those encounters occurred at a different place than the indicted offenses. Although there is certainly a difference between private sexual acts and those that take place in public, that does not eliminate, or even substantially reduce, the probative value of such acts in this case. This is especially true given Anderson's claim that his encounters with S.M. took place in atypical locations, such as the Medicine Lodge and a garage, in order to keep the activity hidden from her husband. Further, the prejudicial impact of this testimony was minimal, and any prejudice to S.M. was substantially outweighed by the probative value of this evidence to Anderson's defense of consent. Accordingly, we find that the district court abused its discretion in excluding this evidence. United States v. Anderson, 2012 WL 913709 (6th Cir. 2012) (emphasis added).
In Anderson, Steven Anderson was convicted of two counts (abusive sexual contact with S.P. and attempted aggravated sexual abuse of S.M.) and acquitted of one count (abusive sexual contact with S.M.). These sexual acts occurred on or about September 23, 2008, with Anderson claiming that the acts were consensual and S.M. alleging that the acts were not consensual. After he was convicted, Anderson appealed, claiming, inter alia, that the district court erred in precluding him from presenting evidence of consensual sexual acts that occurred between S.M. and him in the late fall of 2007.
The importance of this evidence was not that it established a prior consensual sexual relationship between Anderson and S.M.; instead, S.M. admitted that she had a romantic relationship with Anderson. What this evidence would have done was to establish the recency of this relationship.
As the block quote that led this post makes clear, the district court deemed this evidence inadmissible because the 2007 acts were private while the 2008 acts were public. In other words, the district court found that evidence regarding the 2007 acts satisfied Federal Rule of Evidence 412(b)(1)(B), which provides an exception to the Rape Shield Rule for
evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor....
But the court found that the evidence nonetheless failed the balancing test set forth in Federal Rule of Evidence 403, which provides that
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
The purpose of this post is not to claim that the Sixth Circuit erred in reversing the district court. The Anderson was complicated, and I'm in no position to second guess the ultimate conclusion of the court. That said, I do take issue with the Sixth Circuit concluding that "the prejudicial impact of" evidence of the 2007 acts "was minimal."
Really? S.M. claimed that she was the victim of abusive sexual contact and attempted aggravated sexual abuse at the hands of Anderson. Anderson's response was that these sexual act were consensual because S.M. had previously consented to sexual acts with him. Is evidence of these prior sexual acts not extremely prejudicial? I think that the answer is clearly "yes" because all Rule 412(b)(1)(B) evidence is extremely prejudicial. As the Supreme Court of Kentucky noted in Mayo v. Commonwealth, 322 S.W.3d 41, 49 (Ky. 2010),
Solely for the sake of analysis, we shall assume that the victim did have consensual anal sex with Mayo in the past. That does not mean, however, that she consented to having anal sex—or any other type of sex—with Mayo on the date in question. And the only real issue in Mayo's trial was whether the victim consented to the intercourse in question, or whether that intercourse was rape by forcible compulsion.
In other words, the question in a case involving an alleged rape, sexual assault, etc., the question is always whether the sexual act at issue was consensual, not whether previous acts were consensual. Courts sometimes allow for the admission of prior consensual sexual acts between the defendant and the alleged victim because they have some tendency to prove that the sexual act at issue was consensual. But of course that tendency can be very slight. Just because an alleged victim once consented to a sexual act with a defendant did not mean that she later consented to another sexual act with the victim. A million different things could have changed in between these two acts.
And thus is precisely why Rule 412(b)(1)(B) evidence is prejudicial. When the defendant can present evidence under Rule 412(b)(1)(B), pre-Rape shield precedent would tell us that the jury will jump to the conclusion that the sexual act at issue was consensual, and the alleged victim will now need to convincingly explain to the jury what changed.
Now, perhaps the Sixth Circuit's point was that the subject evidence was minimally prejudicial because S.M. had already admitted that she had a romantic relationship with Anderson. I disagree. Anderson admitted to a consensual romantic relationship with Anderson but claimed that the sexual acts at issue were not consensual. Anderson wanted to present evidence of consensual sexual acts between S.M. and him within a year of his alleged crimes to prove, what? Obviously, his point was that the sexual acts at issue must have been consensual because S.M. had consented to sexual acts with him not long before the sexual acts at issue.
Would such evidence have been probative on the issue of consent? Sure. But would it also have been extremely prejudicial to S.M.? Absolutely. In effect, the Sixth Circuit was saying that it wasn't good enough for the jury to learn generally of a consensual romantic relationship between Anderson and S.M. Instead, the jurors also needed to learn of the recency of that relationship to put into perspective the allegations against Anderson. I might agree with the Sixth Circuit that this evidence should have been admitted. But I absolutely disagree with its conclusion that this evidence was minimally prejudicial.
March 23, 2012
Death Of The Furby: Supreme Court Of Kentucky Reverses Murder Conviction Based On Furby Shooting Evidence
According to Wikipedia,
A Furby (plural Furbys or Furbies) was a popular electronic robotic toy resembling a hamster/owl-like creature which went through a period of being a "must-have" toy following its launch in the holiday season of 1998, with continual sales until 2000. Furbies sold 1.8 million units in 1998, 14 million units in 1999, and altogether in its three years of original production, Furbies sold over 40 million units. Its speaking capabilities were translated into 24 languages.
Furbies were the first successful attempt to produce and sell a domestically-aimed robot. A newly purchased Furby starts out speaking entirely Furbish, the unique language that all Furbies use, but is programmed to start using English words and phrases in place of Furbish over time. This process is intended to resemble the process of learning English. In 2005, new Furbies were released, with voice-recognition and more complex facial movements, and many other changes and improvements. The Emoto-Tronic Furbies (Furby, Furby Baby, and Funky Furby) continued to be sold until late 2007, when these toys became extremely rare.
The year is 2001. Like many people back in the halcyon days of the Furby, Richard Gabbard became annoyed by the noises coming from one of the toys. Unlike most people, Gabbard decided to shoot at a Furby with his pistol, striking it between the eyes. About four and a half years later, Gabbard shot and killed his girlfriend and was later convicted of wanton murder. Part of the evidence against him consisted of testimony concerning the Furby shooting. Was this evidence properly admitted? According to the recent opinion of the Supreme Court of Kentucky in Gabbard v. Commonwealth, the answer is "no."In Gabbard, the facts were as stated above, with Gabbard claiming that his gun went off accidentally when he was cleaning it, resulting in the death of his girlfriend, . At Gabbard's trial, a witness, Stacey Little, Michelle Kyrstofik
testified that, around September of 2001, some four and a half years before the fatal shooting of Michelle Kyrstofik, Little and her boyfriend, Jeremy Peters, were visiting Appellant and the victim at their home. The four were outside sitting around a picnic table while drinking. Appellant became annoyed by the noise from a "Furby" toy which was in the middle of the table. Appellant said that he was going to blow the toy's brains out if it made the noise again. When the toy repeated the noise, Appellant retrieved his pistol from inside. When he returned, with everyone still sitting around the table, Appellant proceeded to fire at the toy, hitting it directly between the eyes. Stacey testified that she became uncomfortable after realizing that she had been sitting less than two feet away from the toy when Appellant shot it. She and Jeremy left at that time.
After he was convicted, Gabbard appealed, claiming, inter alia, that this testimony was improperly admitted. The Supreme Court of Kentucky noted that this testimony was admitted under Kentucky Rule of Evidence 404(b), which provides that
Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.
The court then noted that even if "other act" evidence is offered for a permissible purpose under Rule 404(b), it still must pass the balancing test set forth in Kentucky Rule of Evidence 403, which states that
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
The Kentucky Supremes noted that the trial court had found this test satisfied:
In its ruling on the admissibility of this evidence, the trial court found that the prejudice to Appellant was outweighed by its probative value. It concluded that the evidence was probative because it was similar in nature and demonstrated a similar pattern of conduct as the circumstances surrounding the shooting of the victim in this case. The trial court further indicated that the incident with the Furby toy may have demonstrated a wanton disregard of human life. The trial court noted that the Furby incident was prejudicial to Appellant because it made it look like the shooting of the victim was not a mistake or accident. The trial court acknowledged that Appellant was not charged with intentional murder, but explained that the point of the Furby incident was that it showed Appellant's indifference to human life. The trial court also explained that this evidence went against Appellant's defense theory that "[the victim] was shot when his gun went off while he was cleaning it, and supports the Commonwealth's theory of absence of mistake or accident."
The Supreme Court of Kentucky disagreed on both the probative value and unfair prejudice of the Furby evidence. With regard to probative value, the court did
agree that the Furby incident implied that Appellant was competent in handling and firing guns since he was able to accurately fire and hit a small toy between the eyes. This suggests that Appellant was skilled in handling the gun and less likely to have accidentally discharged the weapon.
That said, the court then found that
Appellant's defense theory was that the gun malfunctioned, causing it to fire accidentally. The fact that he was a good shot with the gun was not particularly probative of whether the gun malfunctioned or fired accidentally.
Moreover, with regard to unfair prejudice, the court concluded that
This evidence was extremely prejudicial with respect to Appellant's character. It showed that Appellant was easily angered. In the previous incident with the Furby toy, he talked about blowing the toy's brains out. He also fired the pistol in close proximity to other people while drinking. Many of these circumstances were present in the case sub judice. These similarities between the two incidents make the possibility of prejudice even higher. Based on this evidence, a reasonable juror would be tempted to infer that, because Appellant acted wantonly with a gun in the Furby incident, he probably acted wantonly with the gun on the night of the victim's death.
Perhaps most importantly, the court correctly concluded that
The rationale that this evidence should be admitted because it shows conduct that was possibly wanton is the very rationale prohibited by KRE 404(b). Even if evidence of prior bad acts is similar to the facts of the crime charged, it still must be probative of something other than the defendant's character.
Accordingly, the court reversed Gabbard's conviction.
(Hat tip to Richard Underwood for the link).
March 22, 2012
March Madness: Court Of Appeals Of Texas Implies Insanity Defense Triggers Rule 405(b)
(a) Reputation or Opinion. In all cases in which evidence of a person's character or character trait is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense. In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.
(b) Specific Instances of Conduct. In cases in which a person's character or character trait is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person's conduct.
So, in which cases is a person's character trait an essential element of a charge, claim, or defense, allowing for the admission of specific instances of conduct? The classic ones are negligent hiring/supervision, defamation, and entrapment. But what about insanity cases? Let's take a look at the recent opinion of the Court of Appeals of Texas, Dallas, in Beckett v. State, 2012 WL 955358 (Tex.App.-Dallas 2012).
In Beckett, Anthony Beckett was convicted of intentionally and knowingly causing serious bodily injury to a child fourteen years of age or younger (Christopher). At trial, Beckett asserted "insanity" as an affirmative defense to the crime charged. After he was convicted, Beckett appealed, claiming, inter alia, that
specific instances of conduct were admissible under rule of evidence 405(b) to prove his "character of insanity."...Beckett contend[ed] that specific instances of his conduct that occurred years prior to Christopher's death were related to Beckett's history of severe mental illness. He argue[d] that the trial court's prohibition of lay testimony regarding those instances "undercut the impact of the testimony" of [two witnesses]. At trial, Beckett's defense counsel proffered that witnesses...would have testified regarding specific instances in which Beckett reported God talking to him, reported God writing to him in the snow, and reported or believed that a devil was after him. Beckett argue[d] that had the jury heard the excluded evidence, there is a reasonable probability that the result of the trial would have been different.
The Court of Appeals of Texas, Dallas, disagreed, finding that even if the exclusion of this evidence was error, it was harmless because this character evidence was admitted through the testimony of other witnesses. The implication of this conclusion was that this evidence should have been admissible under Texas Rule of Evidence 405(b) because it was admitted through other witnesses as well. Therefore, the implication is that the defendant's character is an essential element of an insanity defense. And indeed, a review of other case law, including Knight v. State, 907 So.2d 470 (Ala.Crim.App. 2004), reveals that other courts have reached such a conclusion.
March 21, 2012
A Matter Of Conviction: District Of Montana Only Allows For Impeachment Through Fact Of Conviction
Federal Rule of Evidence 609(a)(1) provides that
The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant....
A conviction's probative value under Rule 609(a)(1) depends on how much bearing it has on the witness' honesty while a conviction's prejudicial effect depends on how much the jury will use the conviction to conclude, "Once a criminal, always a criminal." What this means is that courts will often allow for the admission of evidence that a criminal has a prior conviction without allowing evidence of the nature of that prior conviction as was the case in United States v Durbin, 2012 WL 894410 (D.Mont. 2012).
In Durbin, Christopher Durbin was charged with drug-related crimes such as aggravated structuring and conspiracy to launder monetary instruments. Before trial, Durbin filed a motion in limine seeking to preclude the prosecution from presenting any evidence of his 2008 conviction for unlawful delivery of marijuana.
In response, the United States District Court for the District of Montana found that the evidence had probative value because the Ninth Circuit has held that drug offenses "are probative of veracity." On the other hand, the court acknowledged that
"Where, as here, the prior conviction is sufficiently similar to the crime charged, there is a substantial risk that all exculpatory evidence will be overwhelmed by a jury's fixation on the human tendency to draw a conclusion which is impermissible in law: because he did it before, he must have done it again."
Thus, the court reached a compromise:
evidence of Durbin's prior felony conviction for "the purpose of attacking [Durbin's] character for truthfulness" is admissible if he testifies. However, due to the similarity of the prior offense, the government will not be permitted to ask about the nature of the conviction.
March 20, 2012
I'm Not An Expert: 11th Circuit Points Out District Court's Ignorance Of Rule 706
Federal Rule of Evidence 706(a) provides that
On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.
As I have noted before, however, Rule 706(a) is rarely used, and courts are generally under no obligation to appoint experts. And indeed, the recent opinion of the Eleventh Circuit in Robinson v United States, 2012 WL 851623 (11th Cir. 2012), makes clear, some judges aren't even aware of the Rule.
In Robinson, William Robinson, a federal prisoner, appealed a district court's grant of summary judgment on his medical negligence claims brought pursuant to the Federal Tort Claims Act against the United States. Robinson's claims related to the treatment he received for his hernia and skin condition while incarcerated at the United States Penitentiary in Atlanta.
One of the grounds for Robinson's appeal was that the district court erred when it denied his request to appoint an expert medical witness based on a belief that it had no authority to do so. The Eleventh Circuit agreed with Robinson that the district court was mistake because "[u]nder Federal Rule of Evidence 706, a district court has the discretionary power to appoint an expert witness."
That said, the Eleventh Circuit found that the district court's mistake did not constitute reversible error. Instead,
While the district court refused to appoint an expert, it appointed counsel to assist Robinson in finding an expert. Appointed counsel found a dermatologist to conduct an independent medical examination of Robinson. After an oral report from the dermatologist, counsel decided not to submit a written report from the dermatologist. Nothing in the record suggests that the outcome would have been different had the district court appointed an expert witness, rather than appointing counsel to find an expert witness
March 19, 2012
Cherry Picking: Court Of Appeals Of Minnesota Finds Harmless Error Despite Rule 704 Violation
Minnesota Rule of Evidence 704 provides that
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
That said, under Rule of Evidence 704, witnesses cannot testify regarding ultimate legal conclusions and/or the state of mind of a criminal defendant. But did the witnesses in State v. Hall, 2012 WL 896271 (Minn.App. 2012), cross the line?
In Hall, Phllip Hall was convicted of fourth-degree assault of a police officer and gross-misdemeanor obstruction of legal process. After he was convicted, Hall appealed, claiming, inter alia, that the prosecutor committed prejudicial misconduct by eliciting testimony from the officers regarding his intent and the district court abused its discretion by admitting the testimony. Specifically, Hall challenged two exchanges between the prosecutor and police officers. The first went as follows:
Q: Going back to the behavior that you described in the street, you've described some—an attempted punch, some attempted kicks, and an attempted headbutt, correct?
A: Yes, ma‘am.
Q: Were any of those accidental on the part of [appellant]?
Q: And how do you know that?
A: Just the deliberate actions of making a fist, raising his arm, you know, in a quick motion towards me. You know, again kicking backward. You know, kicking towards where I was standing. You know, raising his leg off the ground, kicking back towards my direction. You know, also jerking his head forward, you know, very fast. There was—it was obvious in my mind that [appellant] was trying to do those things.
And the second went as follows:
Q: Were the—as you've described them, [appellant's] attempts to kick at the two of you, was that intentionally?
A: It appeared to be. He kept yelling that he was a security guard, he was going to get us fired, making other comments, calling us names. Seemed more aggressive than anything else to us.
Hall did not object to either of these exchanges at trial, meaning that the Court of Appeals of Minnesota could only reverse for plain error. And the court found error, concluding that
"While it is improper to testify as to the subjective intention or knowledge of another, it is proper for the prosecutor to inquire of the complainant what was going through his mind when the actions occurred." State v. Witucki, 420 N.W.2d 217, 222 (Minn.App.1988), review denied (Minn. April 15, 1988). Here, the officers testified that appellant's actions were not accidental and appeared to be intentional. Because the testimony went to the subjective intent of appellant, which we explicitly stated was impermissible in Witucki, the elicitation and admission of the testimony was plain error. The officer could testify as to his "state of mind," but not to that of appellant.
That said, the court did not find reversible error, instead, finding that
because the impermissible statements as to appellant's intent were offered in addition to a series of observations made by the officers that formed the basis for their opinion, we conclude that any harm done by the elicitation and admission of the testimony was mitigated to the point that a new trial is not mandated. We cannot find prejudice to appellant's substantial rights....Given the weight of admissible testimony from which appellant's intent may be inferred, we conclude that the elicitation and admission of the officers' testimony that appellant's actions were not accidental and appeared to be intentional do not constitute reversible error.
Hall confirms what I've long said about ultimate legal conclusion testimony, which is that its improper admission will rarely lead to reversal because such testimony is merely the cherry on top of the prosecutorial sundae. In other words, when a witness for the prosecution offers an ultimate legal conclusion, it is because he has already given testimony that would allow jurors to infer that same conclusion. And, if jurors could infer the same conclusion, a courty is likely to find harmless error.