Advanced Evidence: Evidence in Sexual Misconduct Cases
Spring Semester, 2009
Professor Peter Tillers
Cardozo School of Law
Outline & Syllabus
Outline of Topics
(see further below for detailed syllabus & assignments)
Law schools teach the important skill of close reading of texts. However, it is also important to read widely. The emphasis in the assignments below is on wide reading rather than close reading. This is because I believe it is possible to get a good feel for many evidentiary issues in sexual misconduct cases only if one has a sense of what the entire landscape of proof problems in sexual misconduct cases looks like. This does not mean we will forego close analysis of specific evidence problems. In our class sessions I will discuss, for example, some of the fine points of various rules of evidence. But I hope that this sort of fine-grained analysis will take place against the backdrop of your general feel for problems of evidence in the area that occupies our attention in a given week.
Pre-Semester Reading Assignment
During the break before the spring semester buy the following book at amazon.com or a similar online service and read as much of the book you can before the semester begins: Dorothy Rabinowitz, No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Times (2004) (paperback).
Topic 1: Introduction: Survey of Topics and Problems
Assignment (see further below)
Topic 2: The Character Evidence Rule & Evidence of Other Sexual Wrongs
Topic 3: Rape Shield Laws
Topic 4: Legal Standards Governing Scientific & Expert Evidence: A Mini-Refresher Course
Assignment
Topic 5: Pretrial Questioning of Child Victims in Sexual Molestation Cases
Topic 6: Memory & Truth: Hypnosis, Guided Imagery, Repressed Memory & Similar Matters
Topic 7: Syndromes (Child Sexual Abuse Accommodation Syndrome & the Like)
Topic 8: Statistics, Sudden Infant Death Syndrome (SIDS) & Criminal Homicide
Topic 9: Privileges & Fair Trial
Topic 10: Sex Abuse Scandal as Social and Legal Wildfire?
Topic 11: Paper Presentations
Topic 12: Paper Presentations
Topic 13: Paper Presentations
Topic 14: Paper Presentations
Pre-Semester Reading Assignment
During the break before the spring semester buy the following book at amazon.com or a similar online service and read as much of the book as you can before the semester begins: Dorothy Rabinowitz, No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Times (2004) (paperback).
This book is required reading because it touches on the wide variety of issues -- political, ideological, cultural, psychological, sociological, familial, and religious -- that can be involved in legal actions that involve claims of sexual misconduct. Be sure to finish reading the book by the third week of the semester.
Introduction
Apart from the Rabinowitz book (see above) there is no assignment for the first class.
The Character Evidence Rule & Evidence of Other Sexual Wrongs
Note on the prohibition against "circumstantial" character evidence.
The Common Law Character Rule & Federal Rules of Evidence 404 & 405
Lustful Disposition and Depraved Sexual Instinct CasesWoods v. State of Indiana (1968)State of Maryland v. Westpoint (2008) (Toward the end of this wide-ranging opinion, the court discusses the use of other sex crime evidence to show depraved sexual disposition and explains that Mayland recognizes a "limited" "sexual propensity exception"; "In Acuna, 332 Md. at 65, 629 A.2d at 1233, we further explored the 'sexual propensity' exception and explained that it is different from the other exceptions. Unlike the latter, where the other acts evidence is admissible only because it has special relevance to prove intent, motive, absence of mistake, identity, or common scheme, sexual propensity evidence is admissible to prove conformity with past conduct....")
State of Utah v. Doporto (1997) (this decision provoked a legislative backlash)
Stte of Colorado v. Rath (2002) (this opinion takes a certain kind of logic about the character evidence rule to an extreme; figure out why the court's logic is, at a minimum, troublesome)
Federal Rules of Evidence 413-415 & their Legislative history
Bingaman v. State of Alaska (2003) (comprehensive discussion of Alaska's Rules of Evidence 404(b)(2)-(4), which authorize admission of prior sexual molestation, prior sexual assaults, and prior domestic violence)
&&&
Read Sections 2 - 2.1.1.2.3 in my Notes on Character Evidence
For a quick refresher on the character evidence rule in general read or skim Section 1.
Rape Shield Laws
FRE 404(a)(2) & Advisory Committee Note
Federal Evidence Rule 608 & Advisory Committee Note
Federal Evidence Rule 412
Section 2.2.2 of Material on Rape Victim Shield Laws (to be revised & updated)
Davis v. Alaska
Olden v. Kentucky
A Mini-Refresher-Course on Legal Standards Governing Scientific & Expert Evidence
Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)
Kumho Tire Company, Ltd v. Carmichael (1999)
Federal Rule of Evidence 702 & Legislative history of 2000 amendment
Main Topic: Pretrial Questioning of Child Victims; Some Legal Issues: Witness Competence; Confrontation and Cross-Examination, and Due Process
State of New Jersey v. Michaels
Read and watch Techniques in Interviewing Children (including the linked video material), from THE CHILD TERROR (1998) (FRONTLINE TV program)
Suggested readings & books:
Stephen J. Ceci, Jeopardy in the Courtroom: A Scientific Analysis of Children's Testimony (1999)
Stephen J. Ceci, Expert Witnesses in Child Abuse Cases: What Can and Should Be Said in Court (2001)
Thomas D. Lyon, "The New Wave in Children's Suggestibility Research: A Critique," 84 Cornell Law Review 1004 (1999)
Stephen J. Ceci & Richard D. Friedman, "The Suggestibility of Children: Scientific Research and Legal Implications," 86 Cornell Law Review 33 (2000)
Stephen J. Ceci, Sarah Kulkofsky, J. Zoe Klemfuss, Charlotte D. Sweeney & Maggie Bruck, "Unwarranted Assumptions about Children’s Testimonial Accuracy," 3 Annual Review of Clinical Psychology 307 (2007)
Memory and Truth: Hypnosis, Guided Imagery, Repressed Memory & Similar Matters
How does memory work?
"I'm glad you asked that question. Well, actually, I'm not." Skeptic's Dictionary (by Robert Todd Carroll) on memory
Stanford Encyclopedia of Philosophy on memory
The following book in paperback is inexpensive and if you are particularly interested in sex-related evidentiary issues implicating human memory (and a multitude of sex-related evidentiary issues do so), you should probably buy this book: Daniel L. Scachter, The Seven Sins of Memory: How the Mind Forgets and Remembers (Mariner Books, 2002)
Legal Issues
Hypnosis
People v. Shirley (1982)
People v. Hughes (1983)
Rock v. Arkansas (1987)For the U.S. Supreme Court's later (re-)interpretation of Rock, see United States v. Scheffer (1998).Repressed Memory
Hungerford
Paul Ingram
Logerquist
Quattrocchi 1; Quattrocchi 2; Quattrocchi 3
Shahzade (memory supposedly repressed for 40+ years and then reawakened)
Memory Studies
Eliabeth Loftus, The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse (1996) (available in paperback)
August Piper, Linda Lillevik & Roxanne Kritzer, "What's Wrong with Believing in Repression?: A Review for Legal Professionals,"14 Psychology, Public Policy & Law 223 (2008) (an important article)
Further reading:
Constitutional limits on retroactive extensions of statutes of limitations periods for criminal prosecutions:
Stogner v. California, 539 U.S. 607 (2003) (this case involved extension of limitations period for "sex-related child abuse crimes"; the extension was held unconstitutional)
Syndromes
Sexual Abuse Accommodation Syndrome; Child Sexual Abuse Accommodation Syndrome; Rape Trauma Syndrome; Battered Spouse Syndrome; Death Row Syndrome; Munchausen Syndrome by Proxy; Battered Child Syndrome; Battered Patient Syndrome; Justice Obsession Syndrome; Organic Delusional Syndrome
Estelle v. McGuire, 502 U.S. 62 (1991) (battered child syndrome)
People v. Bledsoe, 681 P.2d 291 (Cal. 1984) (rape trauma syndrome)
Cal. Evidence Code Section 1107
David L. Faigman, "The Battered Woman Syndrome and Self-Defense: A Legal and Empirical Dissent," 72 Virginia Law Review 619 (1986)
Robert P. Mosteller, "Syndromes and Politics in Criminal Trials and Evidence Law," 46 Duke Law Journal 461 (1996)
David L. Faigman & Amy J. Wright, "The Battered Woman Syndrome in the Age of Science," 39 Arizona Law Review 67 (1997)
John Monahan, Laurens Walker & Gregory Mitchell, "Contextual Evidence of Gender Discrimination: The Ascendance of 'Social Frameworks,'" 94 Virginia Law Review 1715 (2008)
Note: selected cases on syndrome evidence
Statistics, SIDS & Homicide
(What is this topic doing here?)
Simulated dice games that illustrate the product rule (assuming independence):
1, 2, 6, or 9 dice; 1,10, 20, or 100 rollsProsecutor's Fallacy (which mathematicians view as an example of the more general fallacy of transposing probabilities)
two dice; results
1 or 2 dice thrown up to 500x
Sally Clark - victim of a miscarriage of justice
Blog, July 14, 2005: SIDS a/k/a Cot Death & the Doctrine of Chances in the UK: The Sally Clark Case
Blog, Dec. 3, 2003: SIDS, Statistics, Accidents, Genetics, & Criminal Guilt – and, for Connoisseurs of the Law of Evidence, the "Doctrine of Chances"
Helen Joyce, Beyond Reasonable Doubt
Compilation of Well-Reasoned Newspaper Articles about Sally Clark Case
"Sally Clark Doctor Wins GMC case" -- BBC Feb. 17, 2006
Wikipedia: Prosecutor's Fallacy and the Sally Clark CaseCf. Evaluating Legal EvidenceN.B. Sally Clark apparently committed suicide on March 15, 2007. See this Wikipedia entry
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Background Material on Probabilities
Privileges & Fair Trial
In re Winship (1970)
United States v. Lindstrom (1983)
Pennsylvania v. Ritchie (1987)
Jaffee v. Redmond (1996)
Sex Abuse Scandals as Social and Legal Wildfires?
The "Day Care Mass Sex Abuse Scandals" of the 1980s and early 1990s
Oprah Winfrey, Geraldo Rivera & "Believe the Children"
Review:
People of New Jersey v. MichaelsSkim:
The Paul Ingram CaseReview:
Dorothy Rabinowitz's book (see above)
The "Clergy Sex Abuse Scandal": A New Wildfire?
Selected Blogs
Stream-of-Consciousness Commentary on the "Catholic Clergy Sex Abuse Scandal"Further (optional) reading: Philip Jenkins, PEDOPHILES AND PRIESTS: ANATOMY OF A CONTEMPORARY CRISIS (Oxford University Press, 1996); Marci Hamilton, GOD VS. THE GAVEL (2007)
Updates:
Survivors snap into action
Not in My Back Yard: Homeless Sex Offenders
SNAP website
SNAP 2009 conference
Episcopalian clergy...
...perhaps do it too.
The FLDS case
Blog: "A Civil Liberties Disaster"
Hell fire & brimstone: the the denunciation (& dehumanization?) of sexual offenders
Paper Presentations
Paper Presentations
Paper Presentations
Paper Presentations