Passing Judgment: 10th Circuit Case Cites To 4th Circuit Case Allowing Immediate Appeal Of Rape Shield Ruling

The recent opinion of the Tenth Circuit in United States v. Hunter, 2008 WL 5062140 (10th Cir. 2008), sheds light on a Fourth Circuit opinion from 1981 with which I strongly agree.  While the appeal in  Hunter, an appeal from a ruling under the Crime Victims' Rights Act of 2004, is interesting in and of itself, what is more interesting to me is that Fourth Circuit case it cited. 

In that case -- Doe v. United States, 666 F.2d 43 (4th Cir. 1981), the alleged victim in a rape prosecution sought to appeal a district court judge's ruling that evidence concerning her past sexual behavior and habits would be admissible at trial, notwithstanding Federal Rule of Evidence 412, the Rape Shield Rule.

The Fourth Circuit flagged a potential problem with her appeal under 28 U.S.C. Section 1291, the final judgment rule, which states that:

     "The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292 (c) and (d) and 1295 of this title." (emphasis added).

Obviously, the district judge's Rape Shield ruling would not typically be thought of as a "final judgment," but the Fourth Circuit noted that "[t]he Supreme Court has held that this finality requirement should be 'given a practical rather than a technical construction.'"  It further found that, "[t]he Court also has instructed that the most important considerations for determining whether an order is final are 'the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.'"

Applying these considerations, the Fourth Circuit concluded that:

       "In this case the balancing of these factors weighs heavily in favor of a conclusion of finality. The inconvenience and costs associated with permitting the victim to appeal are minimal. Certainly, they are no greater than those resulting from government appeals of suppression orders that are authorized by 18 U.S.C. s 3731. Because the rule provides for pre-trial evidentiary hearings, appeals are unlikely to involve significant postponements of criminal trials. Indeed, in this case, we heard the appeal and filed an order resolving the issues without any delay of the criminal trial.

     On the other hand, the injustice to rape victims in delaying an appeal until after the conclusion of the criminal trial is manifest. Without the right to immediate appeal, victims aggrieved by the court's order will have no opportunity to protect their privacy from invasions forbidden by the rule. Appeal following the defendant's acquittal or conviction is no remedy, for the harm that the rule seeks to prevent already will have occurred. Consequently, we conclude that with respect to the victim the district court's order meets Gillespie ‘s test of practical finality, and we have jurisdiction to hear this appeal."

Further supporting the Fourth Circuit's conclusion was its finding that:

     "The text, purpose, and legislative history of rule 412 clearly indicate that Congress enacted the rule for the special benefit of the victims of rape. The rule makes no reference to the right of a victim to appeal an adverse ruling. Nevertheless, this remedy is implicit as a necessary corollary of the rule's explicit protection of the privacy interests Congress sought to safeguard....No other party in the evidentiary proceeding shares these interests to the extent that they might be viewed as a champion of the victim's rights....Therefore, the congressional intent embodied in rule 412 will be frustrated if rape victims are not allowed to appeal an erroneous evidentiary ruling made at a pre-trial hearing conducted pursuant to the rule."

I agree with this analysis, but when I Shepardized Doe, I didn't find any cases citing it for this point, which makes me wonder whether other courts have come to different conclusions, other courts simply haven't cited Doe, or the issue simply hasn't arisen with much frequency (which seems doubtful).  It definitely seems to be something that I will research in the future.

-CM