Wednesday, August 14, 2019
Court of Special Appeals of Maryland Finds Evidence of Appropriate Interactions With Students is Not Character Evidence
Federal Rule of Evidence 404(a)(2)(A) and most state counterparts provide that
a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it
So, a defendant charged with murder can present evidence regarding his character for nonviolence. And, a defendant charged with fraud can present evidence regarding his character for honesty. But, can a defendant charged with sex abuse of a minor present evidence regarding his character for "appropriate interaction with students in his care and custody." That was the question of first impression addressed by the Court of Special Appeals of Maryland in its recent opinion in Vigna v. State, 2019 WL 3451382 (Md.App. 2019).
In Vigna, the facts were as stated above, with the defendant unsuccessfully attempting to present evidence about his reputation in the community for "appropriate interaction with students in his care and custody." In resolving that appeal, the Court of Special Appeals acknowledged that
The majority of jurisdictions that have considered this general question have concluded, as Idaho did, that a defendant's interactions with children, sexual predispositions, and general “morality” are pertinent character traits in child sex abuse cases. See e.g., People v. McAlpin, 53 Cal.3d 1289, 1309, 283 Cal.Rptr. 382, 812 P.2d 563 (1991) (witnesses should have been permitted to testify that the defendant was “not a person given to lewd conduct with children”); State v. Rhodes, 219 Ariz. 476, 479, 200 P.3d 973 (App. 2008) (the defendant's “sexual normalcy, or appropriateness in interacting with children” was a pertinent trait); State v. Hughes, 841 So.2d 718, 723 (La. 2003) (“a defendant may present evidence of his or her reputation in the community as a moral person and for safe and proper treatment of young children ...”); State v. Enakiev, 175 Or.App. 589, 596, 29 P.3d 1160 (2001) (evidence of a defendant's “sexual propriety” is admissible as a pertinent trait in a prosecution for a sex crime). Those jurisdictions make no distinction between the traits for sexual propriety or appropriateness with children and more traditional traits offered as character evidence such as honesty or peacefulness. And like Idaho, they reason that the limited probative value of the evidence goes only to its weight, not to its admissibility. See Rhodes, 219 Ariz. at 479, 200 P.3d 973.
The Court of Special Appeals, however, declined to join these courts, concluding that
Unlike honesty or peacefulness, traits a person might exhibit visibly day-to-day, sexual interests, predilections, or deviancy are not readily discernable to a casual observer, or even a close colleague. For that reason, courts in other states have disagreed with the majority view and have found reputation evidence relating to sexual behavior irrelevant to a defendant's guilt for sexual crimes involving children. Put another way, the fact that a defendant might have behaved appropriately with children in some instances does not make it more or less likely that the defendant sexually abused a child.
The court then noted that courts in Washington and Florida had reached similar conclusions and
join[ed] those courts that have declined to extend the general rule allowing character and reputation evidence to include more granular testimony about a defendant's reputation for sexual propriety or appropriateness with children. We agree with our Floridian counterparts that testimony from colleagues that Mr. Vigna hadn't acted inappropriately with children in their presence “is not the kind of evidence contemplated by character testimony. Unlike one's reputation for honesty or peacefulness, traits that might be noticed by the community, whether one secretly molests children or does not would not be openly exhibited[.]”...And we find those cases particularly compelling in light of the growing understanding about adults who sexually abuse children and the tactics they employ to gain access to their victims.
Sexual predators are “not instantly recognizable as the ‘dirty old man in the raincoat.’ ” Anne-Marie McAlinden, Setting ‘Em Up: Personal, Familial, and Institutional Grooming in the Sexual Abuse of Children, 15 SOC. AND LEGAL STUD. 339, 348 (2006). They blend into the community and often stand in trust relationships—coaches, clergy, teachers, physicians, or family members—with their victims. Id. Offenders “groom” victims through these relationships and “skillfully manipulate a child into a situation where he or she can be more readily sexually abused and is simultaneously less likely to disclose.” Id. at 346. Recent news accounts demonstrate how offenders exploit trust relationships, not only with children but also their parents and the community at large, to gain access to victims. Before these allegations became public, there undoubtedly were colleagues, parents, and other children who could have testified honestly that they believed those abusers were appropriate with children and much beloved by the community for the strong relationships they formed with them.