Tuesday, April 14, 2015
This is the second in a series of posts reporting a few findings from my just-published book, “The Virginia and Federal Rules of Evidence: A Concise Comparison with Commentary”
The first post is here. This second post focuses on some of Virginia’s unique credibility impeachment rules, and particularly Rule 2:608(e). In all the Virginia evidence code, this is the rule most in need of rethinking.
In the wake of all the recent national media attention regarding sexual assault prosecutions, Virginia’s Rule 2:608(e) may be of general interest. The provision reads:
(e) Prior false accusations in sexual assault cases. Except as otherwise provided by other evidentiary principles, statutes or Rules of Court, a complaining witness in a sexual assault case may be cross-examined about prior false accusations of sexual misconduct.
As the Virginia rule departs from its federal analogue, I discuss it my commentary section, noting its direct derivation from case law:
[U]nder Rule 2:608(e), a complaining witness in a sexual assault case can be cross-examined about prior false accusations of sexual misconduct; and extrinsic evidence is permitted to substantiate a charge that a past accusation was false. See Clinebell v. Com., 235 Va. 319, 325, 368 S.E.2d 263, 266 (Va. 1988) (“in a sex crime case, the complaining witness may be cross-examined about prior false accusations, and if the witness denies making the statement, the defense may submit proof of such charges”).
As I further explain, allowing cross-examination with prior false allegations is not itself noteworthy. In fact, the federal rules permit just that in Rule 608(b). And it is widely recognized that inquiry into prior false allegations of sexual misconduct is not barred by Rape Shield provisions. But Virginia law is different in an important, if largely unheralded way.
The federal rules (and most state analogues) permit impeachment of any witness with specific instances of conduct that is “probative of the character for truthfulness.” Thus, in most jurisdictions any witness can be cross-examined about prior false allegations they have made. Virginia’s rules, however, do not permit this kind of cross-examination except when it comes to one specific type of witness: “a complaining witness in a sexual assault case.” Rule 2:608(e); 2:608(b).
That’s right you don’t need a time machine to see a special rule of credibility impeachment that only applies to sexual assault victims. You can find it in Virginia’s recently codified evidence rules. As I write this, I am a stone’s throw away from Colonial Williamsburg working at the country’s first law school -- founded by Thomas Jefferson. History is nice. But this rule is from the wrong side of history.
The case from which the exception derives, justifies the rule as follows:
“Generally, …, a witness’ character may not be impeached by showing specific acts of untruthfulness or bad conduct. In sex offense cases, however, the weight of authority recognizes more liberal rules concerning impeachment of complaining witnesses.” Clinebell at 265.
Of course, the weight of modern authority is quite the opposite. Modern courts are not, as in Clinebell, singling out sexual assault victims for “more liberal” cross-examination. They are exploring the constitutional boundaries of shielding sexual assault victims from generally-applicable impeachment rules.
The most obvious fix is to follow the federal rules, and those of most jurisdictions, permitting cross-examination of any witness with prior false allegations. Either a witness is properly cross-examined with prior false allegations or not. At least in this century, the propriety of this line of questioning does not, as Rule 2:608(e) suggests, depend on whether the witness is making an allegation of sexual assault.