A. The Character Evidence Rules(s) in Sexual Misconduct Cases

1. The Character Evidence Rule in General

1.1 Purpose of the Rule

1.2 The Gist of the Character Evidence Rule: The Prohibition against "Circumstantial" Use of Character

1.2.1 Limits of the Prohibition against Circumstantial Character Evidence: (a) Admissibility of Matters other than Character to Prove Conduct and (b) Admissibility of Evidence Revelatory of Character to Show Matters other than Conduct

1.3 Character as an Element of a Claim, Charge, or Defense

1.4 Use of Character Evidence to Impeach & Rehabilitate Witnesses

1.5 The Character Evidence Rule in Criminal Cases

1.5.1 Character of Defendant

1.5.1.1 Inadmissibility of Evidence of Criminal Defendant's Character Offered by Government

1.5.1.2 Exception for Exculpatory Character Evidence Offered by Criminal Defendant (Mercy Rule) & for Rebuttal Character Evidence Offered by Government

1.5.1.3 Admissibility of Evidence Revelatory of Character to Show Matters other than Defendant's Conduct in Conformity with Character, including Matters such as Identity, Opportunity, Knowledge, Motivation, and Plan

1.5.2 Exception for Character of Victim

1.5.2.1 Federal Law

1.5.2.2 State Law

1.6 Character of Third Persons

1.7 Group Behavior

1.7.1 Constitutionality of Evidence of Group Behavior to Show Individual Behavior

1.8 Character Evidence and Constitutional Rights of Free Expression]

1.9 Circumstantial Character Evidence and Due Process

2. The Character Evidence Rule & Sexual Propensity Evidence in Criminal Trials for Sexual Misconduct

2.1 Character of Defendant

2.1.1 Traditional & Common Law Rules & Principles

2.1.1.1.1 Evidence of Defendant's Character in Child Sexual Abuse Prosecutions

2.1.1.1.1 Theory: Character to Show Matters other than Disposition: Intent, Purpose, Plan, and the Like

2.1.1.1.2 Theory: Evidence of Character to Show Character Trait in Issue: Lustful Disposition, Depraved Sexual Inclination, and the Like

2.1.1.2 Modern Legislation

2.1.1.2.1 Federal Legislation

2.1.1.2.1.1 Rape & Sexual Assault: Federal Rule of Evidence 413

2.1.1.2.1.2 Child Sexual Abuse (Criminal): Federal Rule of Evidence 414

2.1.1.2.2 State Legislation

2.1.1.2.3 Constitutionality of Admissibility of Criminal Defendant's Character

2.2 Character of Victim in Sex Crime Trials

2.2.1 Common Law

2.2.1.1 Exception for Character of Victim: Character for "Unchastity"

2.2.1.2 Reputation & Opinion Evidence

2.2.2.3 Specific Instances of "Unchastity"

2.2.2.4 Psychiatric Examination of Victim

2.2.2 Rape Shield Laws

2.2.2.1 History; Purposes; Scope

2.2.2.2 Federal Legislation & Cases

2.2.2.3 State Legislation & Cases

2.2.2.3.1 California

2.2.2.3.2 Florida

2.2.2.3.3 Massachusetts

2.2.2.4 Rape Shield Laws & Testimonial Impeachment

2.2.2.5 Constitutionality of Rape Shield Laws

2.2.2.5.1 Constitutional Right of Confrontation, Cross-Examination & Testimonial Impeachment

2.2.2.5.1 Constitutional Right of Confrontation versus Evidentiary Privileges

2.2.2.5.1 Rape Shield Laws, Due Process, and the Constitutional Right to a Fair Trial

3. Sexual Propensity Evidence in Civil Actions for Sexual Misconduct

3.1 Common Law Rules & Traditional Principles

3.1.1 Sexual Propensity of Defendant in Civil Actions for Sexual Misconduct

3.1.2 Sexual Propensity of Alleged Victim of Sexual Misconduct

3.2 Modern Law & Legislation

3.2.1 Sexual Propensity of Defendant in Civil Actions for Sexual Misconduct

3.2.1.1 Federal

3.1.1.1.1 Federal Rule of Evidence 415

3.1.1.1.2 Sexual Harassment Litigation

3.1.1.2 States

3.1.1.2.1 California(?)

3.2 Sexual Propensity of Alleged Victim in Civil Actions for Sexual Misconduct

3.2.1 Federal

3.2.2 States

1. Right of Confrontation & Screening of Alleged Victims of Sex Crimes in the Courtroom from View of Defendant

2. The Hearsay Rule and Pretrial Statements by Children

3. Partisan Pretrial Interrogation of Children

1. Hard Science, Soft Science & Junk Science

2. Syndrome Evidence

3. Recovered & Repressed Memories

4. Expert Testimony about Witness Credibility

1. The Character Evidence Rule in General

1.1 Purpose of the Rule

The character evidence rule prohibits -- roughly speaking -- the use of evidence of what a person is to show what a person does. More precisely stated, the character evidence rule bars the use of a person's character or disposition as evidence of that person''s conduct on a particular occasion.

Since it is not self-evident why evidence of character should not be used to prove conduct, the existence of the character evidence rule calls for an explanation.

People v. Zackowitz, 254 N.Y. 192; 172 N.E. 466 (1930) (Cardozo, J.)

Roger Park, "Proving the Case: Character and Prior Acts: Character Evidence Issues in the O.J. Simpson Case -- or, Rationales of the Character Evidence Ban, with Illustrations from the Simpson Case," 1966 U. Colo. L. Rev. 747 (1996)

Peter Tillers, "What Is Wrong with Character Evidence?"

Various reasons have been given for the rule against character evidence. It has been said that character evidence is irrelevant or -- to state the point a bit differently -- that such evidence has very little probative value. It has also been said that character evidence is "prejudicial." This assertion can mean a variety of things. Sometimes the thesis about the prejudicial nature of character evidence is simply a reiteration of the first rationale listed here; i.e., the claim that character evidence is prejudicial sometimes stands for the thesis that character evidence has little if any evidentiary force. Sometimes, however, the claim that character is prejudicial stands for the different proposition that character evidence, regardless of how much weight it has, is likely to be given more weight than it deserves by jurors or, possibly, even by judges when they function as triers of fact.

It has also been suggested that the character evidence rule has its roots in the adversary system. Objections to character evidence have also been based on the related but distinct ground that character evidence has the capacity to produce "unfair surprise." The premise underlying this objection seems to be that since the whole life history of a person and the whole range of his activities may serve as evidence of a person's character, it is not possible, even in principle, for adversaries to question and counter even invalid character evidence; the potential range and variety of the evidence are simply too great. Yet another objection is related to the range and variety of evidence of character. Some observers believe the character evidence rule is rooted at least in part in the need to prevent the waste of time and scarce resources.

The character evidence rule has also been associated with loftier social values and ideals. It is sometimes suggested that the rule is an indispensable adjunct of the substantive and perhaps constitutional principle that responsibility -- possibly both punishment and reward -- should be made to rest on voluntary human conduct and voluntary choices rather than on inherited status or inescapable personal characteristics or traits. It has also been suggested (though only infrequently) that the character evidence rule is necessary to protect human privacy and human autonomy.

This catalogue of possible rationales, explanations, and justifications for the character evidence prohibition does not include a more desultory explanation for the character evidence rule, one rarely mentioned in judicial opinions and only somewhat less rarely in secondary legal literature. It is possible that the character evidence has no good justification or explanation; it is possible that the character evidence serves no useful purpose; and it is possible that the character evidence rule is nothing more than a historical relic, a relic that lawyers and the legal profession perhaps cling to either out of self-interest or because of professional prejudice and habit. See United States v. Monteleone, 77 F.3d 1086, -- (8th Cir. 1996) (citing 1A WIGMORE ON EVIDENCE § 58.2, at 1213 & n.1 (Tillers rev. 1983) and saying, "The modern rules governing the admissibility of character evidence at trial are counterintuitive and enigmatic vestiges of an ancient time when expositions upon the defendant's moral disposition were commonplace in criminal proceedings.")

I am inclined to think that none of the rationales described above adequately explains the character evidence rule as it now exists. However, I also think that we must proceed with caution when we tinker with the character evidence rule and that incremental change is is in this instance preferable to a dramatic and abrupt overhaul. One reason for this caution is pragmatic. Proposals for radical surgery on the character evidence rule seem to have a striking capacity to illuminate, at least in the eyes of legal professionals, (potential and actual) weaknesses and infirmities of the American system of litigation and proof. Thus, suggestions that the character evidence rule ought to be abolished or reshaped seem to lead many legal observers to suggest that dire things will happen -- that juries will run amok, that people will be convicted just for being bad, that government officials will thereafter routinely invade the sanctum of private thought and sentiment, and the like. Hence, proposals for the radical surgery on the character evidence rule are not likely to be readily accepted. The second reason for proceeding with "reform" gradually is more substantive. Though none of the rationales ordinarily given comports with the character evidence rule as it now exists, the character evidence rule may still serve, if only erratically and haphazardly, some important values. But a consensus on what those fundamental underlying values are does not yet exist. One cannot reform a rule before one knows what one wants it to do.

My personal reflections about the possible proper thrust of the character rule in the next millennium are sketched at the conclusion of my paper "What Is Wrong with Character Evidence?" But the reflections found there are both fragmentary and tentative. I think that more solid theorizing about the future of the character evidence rule must be more explicitly intertwined with a theory about the strengths and weaknesses of the American system of litigation and proof and with a more explicit commitment to certain values that our society ought to affirm and protect. recognize. Without these things, no theory of the character evidence rule can make any sense.

1.2 The Gist of the Character Evidence Rule: The Prohibition against "Circumstantial" Use of Character

It is said that the character evidence rule bars the "circumstantial" use of character -- or that it bars "circumstantial character evidence." {The use of the word "circumstantial" in this context is both unfortunate and misleading, but ...} What is meant by this rather cryptic principle is that the character evidence rule bars the use of a person's character or disposition as evidence that the person acted in a particular way on a particular occasion. See, e.g., Federal Rule of Evidence 404(a) ("Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion").

It is often also said (and I shall speak this way myself) that the character evidence rule prohibits "character evidence." But when used in this way the term "character evidence" does not have a common sense meaning. For purposes of the character evidence rule(s), "character evidence" is _not _simply any evidence that happens to reveal something about someone's character. In the eyes of the law -- American law, in any event--, evidence is character evidence only when it is put to a particular use, it is presumptively prohibited character evidence only when it is put to one specific use. Evidence is character evidence -- evidence is prohibited by the character evidence rule -- only if it is offered to show that a person probably acted in a certain way on a certain occasion because he or she had a disposition, an inclination, or proclivity to act in in certain way. (This may not be the meaning that "character evidence" has always had but, by general consensus, this is the meaning it has today.)

The Michigan Supreme Court expressed the point in the following way:

"On its face, [Michigan] Rule [of Evidence] 404 limits only one category of logically relevant evidence. As we explained in Engelman, supra at 212-213. Only one series of evidential hypotheses is forbidden in criminal cases by Rule 404: a man who commits a crime probably has a defect of character; a man with such a defect of character is more likely . . . to have committed the act in question. [Citing 2 Weinstein, Evidence, § 404(8), p 404-52.] If the proponent's only theory of relevance is that the other act [which the proponent wishes to have admitted] shows defendant's inclination to wrongdoing in general to prove that the defendant committed the conduct in question, the evidence is not admissible." (People v. Vandervliet, 444 Mich. 52; 508 N.W.2d 114 (1993) (footnotes omitted)).

1.2.1 Limits of the Prohibition against Circumstantial Character Evidence: (a) Admissibility of Matters other than Character to Prove Conduct and (b) Admissibility of Evidence Revelatory of Character to Show Matters other than Conduct

Given the definition of "character evidence" (see §1.2 above), it follows that much evidence which is revelatory of character is not prohibited by the character evidence rule. Evidence revelatory of character can escape the prohibitory net of the character evidence rule for either of two general reasons:

(i) the evidence, though revelatory of character or disposition, is not being offered to show disposition,
(ii) the evidence, though revelatory of character, is not being offered to show that that person's character inclined him to act in a certain way on a particular occasion.

From this it follows that if evidence of a matter other than disposition -- a matter such as motive, for example -- is offered to show conduct, that evidence is not barred by the character evidence rule. See § ---, below.

It also follows, for example, that if a person's disposition is offered to show, not that person's act, but some other matter -- a matter such as that person's knowledge--, in this circumstance the character evidence rule does not evidence of disposition. More broadly, if the disposition or character of a person is offered to show anything other than that person's conduct, evidence of such disposition or character is not barred by the character evidence rule.

This last principle is implicit in the general definition of prohibited character evidence found in Federal Rule 404(a). This principle is explicitly codified by the second sentence of Federal Rule of Evidence 404(b), which provides that although evidence of other crimes, wrongs, or acts is not admissible to show a person's disposition in order to show that that person, because he had such a disposition, acted in a certain way on a particular occasion, evidence of such crimes, wrongs, or acts "may, however, be admissible for other purposes, such as proof of motive, opportunity, intent preparation, plan, knowledge, identity, or absence of mistake or accident."

The Michigan Supreme Court (apparently borrowing from Professor Edward Imwinkelried) provides a helpful explanation of the limited scope of the character evidence rule. In Vandervliet, supra, at p. --- n. 12, the court, speaking of a person's acts that are revelatory of that person's character or disposition, said:

"The forbidden theory of relevance is diagrammed as follows:

	Step 1		Step 2
THE DEFENDANT'S UNCHARGED ACT	----->	THE DEFENDANT'S SUBJECTIVE CHARACTER	----->	THE DEFENDANT'S CONDUCT IN CONFORMITY WITH CHARACTER
Evidence		The intermediate inference		The ultimate inference

...

Rule 404(b) limits the use of logically relevant evidence only when both steps of the process are violated. Therefore, if the proffered other acts evidence is logically relevant, and does not involve the intermediate inference of character, Rule 404(b) is not implicated. Engelman, supra at 216. ... The question is not whether the evidence falls within an exception to a supposed rule of exclusion, but rather whether the "evidence [is] in any way relevant to a fact in issue" other than by showing mere propensity, Stone, The rule of exclusion of similar fact evidence: America, 51 Harv L R 988, 1004 (1938)."

The Michigan Supreme Court illustrates the same general point -- the point about the limited scope of the character evidence prohibition -- yet again in another part of its opinion in People v. Vandervliet, 444 Mich. 52; 508 N.W.2d 114 (1993) (footnotes omitted):

"Thus, the Court of Appeals reference to 'the general exclusion of similar acts evidence' is mistaken. There is no policy of general exclusion relating to other acts evidence. There is no rule limiting admissibility to the specific exceptions set forth in Rule 404(b). Nor is there a rule requiring exclusion of other misconduct when the defendant interposes a general denial. Relevant other acts evidence does not violate Rule 404(b) unless it is offered solely to show the criminal propensity of an individual to establish that he acted in conformity therewith."

 

1.3 Character as Element of Claim, Charge, or Defense

1.4 Character Evidence to Impeach and Rehabilitate Witnesses

1.5 The Character Rule in Criminal Cases

1.5.1 Character of Defendant

1.5.1.1 Inadmissibility of Evidence of Criminal Defendant's Character Offered by Government

1.5.1.2 Exception for Exculpatory Character Trait Offered by Criminal Defendant ("Mercy Rule") & for Rebuttal by Government

Federal Rule of Evidence 404(a)(1)

1.5.1.3 Admissibility of Evidence Revelatory of Character to Show Matters other than Defendant's Conduct in Conformity with Character, including Matters such as Identity, Opportunity, Knowledge, Motivation, and Plan

Federal Rule of Evidence 404(b) (evidence of other crimes, wrongs, or acts is not admissible to show a person's disposition in order to show that that person, because he had such a disposition, acted in a certain way on a particular occasion, but evidence of such crimes, wrongs, or acts "may... be admissible for other purposes, such as proof of motive, opportunity, intent preparation, plan, knowledge, identity, or absence of mistake or accident"). See discussion in § ---, supra. See also, e.g., United States v Vance, 871 F.2d 572, 575 (6th Cir., 1989), cert. denied, 493 U.S. 933 (1989): "Rule 404(b)... provides only that bad acts evidence is not admissible to prove character or criminal propensity; such evidence may be admissible for other purposes, 'such as,' but not limited to, those listed in the rule. This court has noted that Rule 404(b) 'is actually a rule of inclusion rather than exclusion, since only one use is forbidden and several permissible uses of such evidence are identified.'"

Under this reasoning American courts have given their blessing to the admission of evidence revelatory of character to show numerous matters in almost innumerable circumstances:

Spencer v. Texas, 385 U.S. 554 (1967) (footnotes omitted): "The rules concerning evidence of prior offenses are complex, and vary from jurisdiction to jurisdiction, but they can be summarized broadly. Because such evidence is generally recognized to have potentiality for prejudice, it is usually excluded except when it is particularly probative in showing such things as intent, ... an element in the crime, ...; identity...; malice...; motive...; a system of criminal activity...; or when the defendant has raised the issue of his character, Michelson v. United States, 335 U.S. 469...; or when the defendant has testified and the State seeks to impeach his credibility...."  

•Form of Proof of Character when Exception to Rule Permits Circumstantial Use of Character to Show Conduct

Michelson v. United States, 335 U.S. 469 (1948) (common law; reputation evidence only)

Federal Rule of Evidence 405(a) (reputation or opinion)

1.5.2 Exception for Evidence of Character of Victim in Criminal Cases

1.5.2.1 Federal Law

Federal Rule of Evidence 404(a)(2) & Advisory Committee's Notes

1.5.2.2 State Law

1.6 Character of Third Persons

1.7 Group Behavior

1.7.1 Constitutionality of Evidence of Group Behavior to Show Individual Behavior

1.8 Character Evidence and Constitutional Rights of Free Expression

1.9 Circumstantial Character Evidence and Due Process of Law

Chief Justice Warren, dissenting in Spencer v. Texas, 385 U.S. 554 (1967) (rejecting due process attack on procedure for imposing sentence under recidivist statute), stated (footnotes omitted):

"Whether or not a State has recidivist statutes on its books, it is well established that evidence of prior convictions may not be used by the State to show that the accused has a criminal disposition and that the probability that he committed the crime currently charged is increased. While this Court has never held that the use of prior convictions to show nothing more than a disposition to commit crime would violate the Due Process Clause of the Fourteenth Amendment, our decisions exercising supervisory power over criminal trials in federal courts, as well as decisions by courts of appeals and of state courts, suggest that evidence of prior crimes introduced for no purpose other than to show criminal disposition would violate the Due Process Clause. Evidence of prior convictions has been forbidden because it jeopardizes the presumption of innocence of the crime currently charged. A jury might punish an accused for being guilty of a previous offense, or feel that incarceration is justified because the accused is a "bad man," without regard to his guilt of the crime currently charged." (385 U.S. at 572)

Cf. Boyle v. Johnson, 93 F.3d 180 n. 9 (5th Cir., 1996) (defendant tried for murder during rape and kidnapping; evidence of accused's sexual habits and drawings was admitted both at trial on the merits and in death sentencing hearing; court rejects a First Amendment challenge to this evidence):

"In addition, Boyle argues that the presentation of evidence regarding his sexual habits at the guilt-innocence phase of his trial also violated the dictates of Dawson. Dawson, however, dealt solely with the introduction of such evidence at sentencing. Dawson, 503 U.S. at 168-69, 112 S. Ct. 1099. It is unclear whether Dawson should be applied at the guilt-innocence phase. We note at the outset that the Texas Rules of Criminal Evidence only allow the admission of evidence that is 'relevant' to a fact 'that is of consequence to the determination of the action.' TEX. R. CRIM. EVID. 401. In addition, evidence of 'other crimes, wrongs, or acts' may only be admitted 'for other purposes, such as proof of motive, opportunity, intent, preparation, plan knowledge, identity, or absence of mistake or accident.' TEX. R. CRIM. EVID. 403. It is unclear how these evidentiary requirements differ from the nexus requirement set forth in Dawson. See Snell v. Lockhart, 14 F.3d 1289, 1299 n.8 (8th Cir.) (declining to disallow associational evidence under Dawson because 'most of the . . . evidence in this case was relevant.'), cert. denied, U.S. , 115 S. Ct. 419, 130 L. Ed. 2d 330 (1994); United States v. Robinson, 978 F.2d 1554, 1565 (10th Cir. 1992) (applying Dawson to a non-capital trial and allowing admission of associational evidence because the evidence was specific and relevant to the offenses charged), cert. denied, 507 U.S. 1034, 113 S. Ct. 1855, 123 L. Ed. 2d 478 (1993). Because we find the nexus requirement of Dawson satisfied, we need not decide whether Dawson should be applied at the guilt-innocence phase of a capital murder trial. In this case the state introduced the evidence of Boyle's sexual habits to establish the motive for the sexual assault and kidnapping, both part of the crimes for which Boyle was indicted and ultimately convicted and sentenced to death. Assuming arguendo that Dawson applies to the guilt-innocence phase, we conclude that a sufficient nexus existed to allow consideration of the evidence at issue. See United States v. Beasley, 72 F.3d 1518, 1527 (11th Cir. 1996) (citing Dawson and stating that 'The First Amendment's protection of beliefs and associations does not preclude such evidence where relevant to a trial issue.'")

Cal. S. Ct. in People v. Falsetta, 21 Cal. 4th 903, 986 P.2d 182, 89 Cal. Rptr. 2d 847 (1999): ("Estelle v. McGuire (1991) 502 U.S. 62, 70; Spencer v. Texas (1967) 385 U.S. 554, 562-564. Estelle expressly left open the question whether a state law permitting admission of propensity evidence would violate due process principles. (Id. at p. 75, fn. 5; see also Spencer v. Texas, supra, 385 U.S. at p. 561.)" 

2. The Character Evidence Rule & Sexual Propensity Evidence in Criminal Trials for Sexual Misconduct

2.1 Character of Defendant

2.1.1 Common Law Rules & Traditional Principles: "Official" American Rule; Scope of Official Rule; Exceptions to the Prohibition against Evidence of Sexual Disposition; Expansive Interpretations of Exceptions; Counterattacks against Liberal Admissibility of Sexual Disposition Evidence in Sex Crime Trials

Until recently most American jurisdictions purported to apply the same character evidence principles in sex crime trials as in trials for other crimes. In practical effect, however, a good many states greatly liberalized the admissibility of character evidence in sex crime trials, or in certain types of sex crime trials, by taking advantage of one or both of two generally accepted principles: (i) a person's acts or wrongs other than the act whose occurrence is in question do not violate the character evidence rule if those other acts or wrongs are offered to show, not that the person probably committed an act because of a disposition to act in a certain way, but to show or prove some other matter such as intent, plane, or knowledge; and (ii) evidence of character or disposition (or acts showing character or disposition) does not violate the character evidence rule if character or disposition is an element of a claim, charge, or defense and the evidence of disposition is offered to show such "character in issue." In some jurisdictions prior or other sex crimes -- that is, sex crimes other than those for which the defendant is being tried -- were admitted against defendants on the theory that such other sex crimes serve to show the defendant's intent to commit the crime or crimes for which he is on trial. However, courts in some other jurisdictions occasionally also seemed to reason that some sex crimes make disposition -- sexual disposition -- an element of the crime charged because, for example, a crime such as sexual molestation of a minor that happens to require that the perpetrator have committed an act of touching a child, with a "lustful disposition" or with "depraved sexual instinct" makes a defendant's sexual disposition an element of the crime charged. See, e.g., McKim v. State, 476 N.E.2d 503, 505 (Ind. 1985) (evidence of defendant's abuse his girlfriend admissible to show "depraved sexual instinct" in trial of defendant for his sexual abuse of his teenage daughter); Brackens v. State, 480 N.E.2d 536, 539 (Ind. 1985) (proof of "depraved sexual instinct"); State v. DeLong, 505 A.2d 803, 805-06 (Me. 1986) (acknowledging and approving tradition of expansive interpretation of limitations on reach of prohibition against character evidence); State v. Schut, 71 Wash. 2d 400, 429 P.2d 126, 128 (Wash. 1967) (prior acts of incest with victim to show lustful inclination towards victim). See generally Earl F. Martin & Phillip W. Esplin, "THE GUESSING GAME: EMOTIONAL PROPENSITY EXPERTS IN THE CRIMINAL COURTS" 21 Law and Psychology Review 29 (1997) (lustful disposition exception in Arizona). There are many examples of the use of expansive interpretations of conventional exceptions to or limitations on the reach of the character evidence to liberalize the admissibility of sexual propensity evidence in child sexual abuse cases. A recent example is People v. Ewoldt, 7 Cal.4th 380, 867 P.2d 757, 27 Cal. Rptr. 2d 646 (1994), which resorted to the exception for plan or design to rationalize the admissibility in a father's trial for sexually molesting his step daughter a prior instance in which he molested the same step daughter. Examples of this kind abound. See Office of Legal Policy, Department of Justice, The Admission of Criminal Histories at Trial, 22 U. Mich. J.L. Ref. 707, 751 (1989); [Criminal Histories?] or Karp's other paper; 1A Wigmore on Evidence § 62.2 (P. Tillers rev. 1983).

As noted, the tendency to admit prior acts of sexual wrongdoing, particularly in prosecutions for sex offenses against children, is both widespread and long-standing. Occasionally, however, courts expressly repudiate or withdraw the notion, principle, thesis, or rule that evidence of the dispositions or proclivities of defendants in sex crime cases is generally admissible in sex crime trials or that such evidence is or ought to be more freely admissible in sex crime prosecutions than in other types of criminal proceedings. See, e.g., State v. Lucero, 114 N.M. 489, 840 P.2d 1255 (Ct. App.), cert. denied, 114 N.M. 413, 839 P.2d 623 (1992); State v. Williams, 117 N.M. 551, 874 P.2d 12 (1994) (prosecution for first degree murder and second degree criminal sexual; defendant's girlfriend's testimony that defendant enjoyed anal sex was improperly admitted; "The testimony in Lucero is very similar to that in this case. The witness in each case was involved in consensual sexual relations with the Defendant and both testified to Defendant's sexual preferences. Lucero rejected the 'lewd' and 'lascivious disposition' exception to Rule 11-404(B) in situations in which the state desires to introduce evidence concerning a defendant's prior sexual conduct with someone other than the victim named in the indictment. In such cases, 'the "lewd disposition" exception is nothing more than a euphemism for the character evidence which Federal Rule of Evidence 404(b) and its state counterparts are designed to exclude.' Id. at 492-93, 839 P.2d at 1258-59."); State v. Doporto, 935 P.2d 484 (1997) (use of evidence of other sexual assaults in prosecution for sodomy of child condemned). Despite some such signs of a counterattack against liberalized admissibility of propensity evidence against criminal defendants in sex crime cases, a substantial counter-counterattack now appears to be underway; in some jurisdictions -- most notably, in the federal system and in California -- new legislation openly and directly sanctions liberal admissibility of sexual propensity evidence against defendants in sex crime prosecutions. See § ---, infra.

2.1.1.1 Evidence of Defendants' Sexual Propensities in Child Sexual Abuse Prosecutions: Common Law & Traditional Principles

Woods v. State, 235 N.E.2d 479 (Ind. 1968) (evidence of accused's prior sexual relationships with same child victim held admissible)

State v. Doporto, 935 P.2d 484 (1997) (use of evidence of other sexual assaults in prosecution for sodomy of child, condemned)

People v. Stoll, 49 Cal. 3d 1136, 783 P.2d 698, 265 Cal. Rptr. 111 (1989) (psychological testimony of absence of criminal defendant's abnormal sexual disposition is admissible as character evidence when offered by defendant charged with committing lewd and lascivious acts upon a child):

"At the outset, defendants' claim that the testimony is relevant character evidence must be sustained. (§§ 210, 1102.) In People v. Jones, supra, 42 Cal.2d 219, 222, we found prejudicial error in the exclusion of expert opinion testimony that defendant is 'not a sexual deviate' where offered to prove that he did not commit lewd and lascivious acts upon a child. Jones noted that certain now-repealed Welfare and Institutions Code sections assumed a logical connection between conviction under Penal Code section 288 and subsequent psychiatric diagnosis as a 'sexual psychopath.' (42 Cal.2d at p. 224.) Jones concluded that the opposite inference is also reasonable, i.e., absence of such a 'disposition' tends to prove that defendant has not committed the crime. (Id. at pp. 224-225.)"

2.1.1.1.1 Theory Supporting Liberal Admissibility of Defendant's Sexual Disposition: Character to Show Matters other than Disposition: Intent, Purpose, Plan, and the Like

2.1.1.1.2 Theory Supporting Liberal Admissibility of Defendant's Sexual Disposition: Evidence of Character to Show Character Trait in Issue: Lustful Disposition, Depraved Sexual Inclination, and the Like

2.1.2 Modern Legislation on Admissibility of Sexual Dispositions of Defendants in Sex Crime Trials

2.1.2.1 Federal

2.1.2.1.1 Legislative History & Debate

U.S. Department of Justice, Office of Legal Policy, "'Truth in Criminal Justice' Series: The Admission of Criminal Histories at Trial" (Executive Summary), 22 U. Mich. J. Law Reform 707 (1989); David J. Karp, "Evidence of Propensity and Probability in Sex Offense and Other Cases," 70 Chicago-Kent L. Rev. 15 (1994) (Karp was "Senior Counsel to the Office of Policy Development, United States Department of Justice, who was a primary author of Rules 413-415, Louis Natali, Jr. & Stephen Stigall, "'Are You Going To Arraign His Whole Life?': How Sexual Propensity Evidence Violates the Due Process Clause, 28 Loy. U. Chi. L.J. 1, 5 n. 28 (1996)).

Edward J. Imwinkelried, Some Comments About Mr. David Karp's Remarks on Propensity Evidence, 70 Chi.-Kent L. Rev. 37, 37 (1994)

Dale Nance, Foreword: Do We really Want to Know the Defendant?, 70 Chicago-Kent L. Rev. 3 (1994)

2.1.2.1.2 Federal Legislation: Defendant's Disposition in Criminal Prosecutions for Rape & Sexual Assault

Federal Rule of Evidence 413 & Legislative History (for broader history see § 2.1.1.2.1.1, supra)

Cases:

2.1..2.1.2 Federal Legislation on Evidence of Defendant's Disposition in Child Sexual Abuse Trials

Federal Rule of Evidence 414 ( for legislative history see "Legislative History" for Rule 413, supra; for broader history see § 2.1.1.2.1.1, supra)

Cases: United States v. Meacham, 115 F.3d 1488 (10th Cir., 1997) (admission of accused's sexual offenses against children on other occasions -- 30 years earlier -- held admissible in prosecution for interstate transportation of child for sexual purposes; FRE 403, 404(b) & 414 discussed)

2.1.1.2.2 State Legislation

2.1.1.2.2.1 California

Cf. Cal. Evidence Code § 1109 (evidence of prior acts of domestic violence; the O.J. Simpson exception to the character evidence rule?)

2.1.1.2.3 Constitutionality of Admissibility of Character of Defendant, or Defendant's Sexual Proclivities, in Prosecutions for Sexual Offenses

Federal:

United States v. Enjady, 134 F.3d 1427 (10th Cir., 1998) (New Mexico statute held constitutional against a due process attack)

California:

People v. Falsetta, California Supreme Court, 11/1/1999, 21 Cal. 4th 903, 986 P.2d 182, 89 Cal. Rptr. 2d 847:

In this case we resolve a due process challenge to legislation (Evid. Code, § 1108) permitting the admission, in a sex offense case, of the defendant's other sex crimes for the purpose of showing a propensity to commit such crimes. Although this provision represents a deviation from the historical practice of excluding such "propensity" evidence (see § 1101, subd. (a)), the provision preserves trial court discretion to exclude the evidence if its prejudicial effect outweighs its probative value (§ 352). We conclude, consistent with prior state and federal case law, that section 1108 is constitutionally valid. We also reject defendant's additional contention that the judgment should be reversed because the trial court erred in refusing to give defendant's special limiting instruction regarding the jury's consideration of the other crimes evidence.

Cf. People v. Hoover, -- Cal. ---, 1998 WL 327776 (June 23, 1998) (upholding the Cal. Evid. Code § 1109, O.J. Simpson exception to the character evidence rule, against a due process attack)

Books & articles:

Louis M. Natali, Jr. & R. Stephen Stigall, "'Are You Going to Arraign His Whole Life?': How Sexual Propensity Evidence Violates the Due Process Clause," 28 Loyola University Chicago L. J. 1 (1996)

2.2 Character of Alleged Sex Crime Victim

2.2.1 Common Law & Traditional Principles & Practices

2.2.1.1 Use of Exception Authorizing Use of Evidence of Character of Crime Victim: Character for "Unchastity"

2.2.2.2 Reputation & Opinion Evidence

2.2.2.3 Specific Instances of "Unchastity"

2.2.2.3 Psychiatric & Psychological Examination of Sex Crime Victim; Admissibility of Mental Health Records

Wigmore's oft-quoted notorious view that every complainant should be required to undergo psychiatric examination; but note that this view was _not_ generally the law

2.2.2 Rape Shield Laws

2.2.2.1 History; Rationales; Characteristic Features of the Shield Laws; Commentary

[History]

[Purposes ] Recognition of Right of Sexual Autonomy; Sexual Privacy; Reducing Barriers to Conviction; Avoidance of Jury Misdecision; Encouraging Victims to Report Sex Crimes; Flexing of New Political Muscle & Symbolic Public Expression of Women's Sexual Rights

[Common Features] Exclusion of Reputation; Inadmissibility of Sexual Relations with Persons other than Accused; Common Exceptions to Such Rules of Exclusion; General Rule of Admissibility of other Sexual Relations with Accused; Interpretive Problems due to Shoddy Draftsmanship of Statutory Language

[Commentary] David P. Bryden & Sonja Lengnick, "Criminal Law: Rape in the Criminal Justice System, 87 J. Crim. L. & Criminology 1194 (1997)

2.2.2.2 Rape Shield Laws: Legislation & Cases

2.2.2.2.1 Federal Legislation & Cases

Federal Rule of Evidence 412

2.2.2.2.2 State Legislation & Cases

2.2.2.2.2.1 California

Cal. Evid. Code. §§ 782, 1103:

 §782. Evidence of sexual conduct of complaining witness

   (a) In any prosecution under Section 261, 262, 264.1, 286, 288, 288a, 288.5, or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit any crime defined in any of those sections, except where the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4, or in a state prison, as defined in Section 4504, if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780, the following procedure shall be followed:

   (1) A written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness.

   (2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.

   (3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant.

   (4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352 of this code, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.

   (b) As used in this section, "complaining witness" means the alleged victim of the crime charged, the prosecution of which is subject to this section.

§ 1103. Evidence of character of victim of crime

   (a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is:

   (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.

   (2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1).

   (b) In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).

   (c) (1) Notwithstanding any other provision of this code to the contrary, and except as provided in this subdivision, in any prosecution under Section 261, 262, or 264.1 of the Penal Code, or under Section 286, 288a, or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit a crime defined in any of those sections, except where the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4, or in a state prison, as defined in Section 4504, opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness' sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the complaining witness.

   (2) Notwithstanding paragraph (3), evidence of the manner in which the victim was dressed at the time of the commission of the offense shall not be admissible when offered by either party on the issue of consent in any prosecution for an offense specified in paragraph (1), unless the evidence is determined by the court to be relevant and admissible in the interests of justice. The proponent of the evidence shall make an offer of proof outside the hearing of the jury. The court shall then make its determination and at that time, state the reasons for its ruling on the record. For the purposes of this paragraph, "manner of dress" does not include the condition of the victim's clothing before, during, or after the commission of the offense.

   (3) Paragraph (1) shall not be applicable to evidence of the complaining witness' sexual conduct with the defendant.

    (4) If the prosecutor introduces evidence, including testimony of a witness, or the complaining witness as a witness gives testimony, and that evidence or testimony relates to the complaining witness' sexual conduct, the defendant may cross-examine the witness who gives the testimony and offer relevant evidence limited specifically to the rebuttal of the evidence introduced by the prosecutor or given by the complaining witness.

   (5) Nothing in this subdivision shall be construed to make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in Section 782.

 (6) As used in this section, "complaining witness" means the alleged victim of the crime charged, the prosecution of which is subject to this subdivision.

2.2.2.2.2.2 Florida

Fla. Stat. § 794.022:

794.022 Rules of evidence.

    (1)   The testimony of the victim need not be corroborated in a prosecution under s. 794.011.

(2)   Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in a prosecution under s. 794.011. However, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence may prove that the defendant was not the source of the semen, pregnancy, injury, or disease; or, when consent by the victim is at issue, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence tends to establish a pattern of conduct or behavior on the part of the victim which is so similar to the conduct or behavior in the case that it is relevant to the issue of consent.

(3)   Notwithstanding any other provision of law, reputation evidence relating to a victim's prior sexual conduct or evidence presented for the purpose of showing that manner of dress of the victim at the time of the offense incited the sexual battery shall not be admitted into evidence in a prosecution under s. 794.011.

(4)   When consent of the victim is a defense to prosecution under s. 794.011, evidence of the victim's mental incapacity or defect is admissible to prove that the consent was not intelligent, knowing, or voluntary; and the court shall instruct the jury accordingly.

(5)   An offender's use of a prophylactic device, or a victim's request that an offender use a prophylactic device, is not, by itself, relevant to either the issue of whether or not the offense was committed or the issue of whether or not the victim consented.

2.2.2.2..2.3 Massachusetts

Mass. Gen. Laws ch. 233, §21B:

  Evidence of the reputation of a victim's sexual conduct shall not be admissible in any investigation or proceeding before a grand jury or any court of the commonwealth for a violation of sections thirteen B, thirteen F, thirteen H, twenty-two, twenty-two A, twenty-three, twenty-four and twenty-four B of chapter two hundred and sixty-five or section five of chapter two hundred and seventy-two. Evidence of specific instances of a victim's sexual conduct in such an investigation or proceeding shall not be admissible except evidence of the victim's sexual conduct with the defendant or evidence of recent conduct of the victim alleged to be the cause of any physical feature, characteristic, or condition of the victim; provided, however, that such evidence shall be admissible only after an in camera hearing on a written motion for admission of same and an offer of proof. If, after said hearing, the court finds that the weight and relevancy of said evidence is sufficient to outweigh its prejudicial effect to the victim, the evidence shall be admitted; otherwise not. If the proceeding is a trial with jury, said hearing shall be held in the absence of the jury. The finding of the court shall be in writing and filed but shall not be made available to the jury.

Commonwealth v. Bohannon, 376 Mass. 90, 378 N.E.2d 987 (1978)

2.2.2.3 Rape Shield Laws & Testimonial Impeachment

Background: Nonconstitutional right to impeach adverse witness for bias & interest:: United States v. Abel, 469 U.S. 45 (1984) (right to impeach by showing of bias under the Federal Rules of Evidence)

2.2.2.4 Rape Shield Laws: Psychiatric and Psychological Examination of Alleged Victim ; Records of Victim's Mental Health & Therapy

State v. Redd, 642 A.2d 829 (Del. Super. 1993) (criminal charges of various forms of sexual assault against 15 year old girl; "Defendant has retained the services of Richard A. Gardner, M.D., a Clinical Professor of Child Psychiatry at Columbia University and, pursuant to the instant motion, seeks to have the court order the victim to undergo a psychological examination given by Dr. Gardner."; denial of motion upheld on various grounds; interesting case)

2.2.2.5 Constitutionality of Rape Shield Laws

Background: Davis v. Alaska, 415 U.S. 308 (1974); United States v. Lindstrom (mail fraud; defense had constitutional right -- based on its constitutional right of confrontation -- to inspect psychiatric information about key government witness and to cross-examine that witness about possible mental disorders)

2.2.2.5.1 Constitutional Right of Confrontation, Cross-Examination & Testimonial Impeachment

Olden v. Kentucky, 488 U.S. 227 (1988)

Maine v. Thurlow, 1998 Me. 139, 712 A.2d 518 (1998) (sexual assault; conviction reversed; trial court improperly excluded "testimony concerning the victim's prior threats to falsify allegations of rape" against defendant)

Maine v. Graves, 638 A.2d 734 (Me. 1994) (criminal prosecution for gross sexual assault; "Graves contends, inter alia, that the trial court erred ... by refusing to admit evidence of the complaining witness's involvement in marketing and selling a T-shirt publicizing the case. Because we agree with Graves that the trial court improperly excluded evidence concerning the T-shirt, we vacate the judgment."; "Graves argued he was entitled to demonstrate the bias of the complaining witness as evidenced by her financial interest in the marketing, promoting or selling of the T-shirt."; "We conclude that evidence linking the complaining witness to the marketing and sale of the T-shirt depicting Graves and hostility toward him is functionally indistinguishable from the evidence improperly excluded in Davis [v. Alaska, 415 U.S. 227 (1988)]. The pecuniary interest and motivation of a complaining witness is a proper subject for jury consideration." )

Clifford Fishman, "Consent, Credibility, and the Constitution: Evidence Relating to a Sex Offense Complainant's Past Sexual Behavior, 44 Catholic University L. Rev. 709 (1995)

J. Tanford & A. Bocchino, "Rape Victim Shield Laws and the Sixth Amendment," 128 U. Pa. L. Rev. 544 (1980)

2.2.2.5.1.1 Constitutional Right of Confrontation versus Evidentiary Privileges

People v. District Court , 719 P.2d 722 (1986) ("In framing our rule here, we reject the application of a balancing test. Accord Clark, 668 P.2d 3. In all cases, a victim's post-assault psychotherapy records are privileged and, absent waiver, a defendant may not compel their discovery."); 23 Colo. L. Rev. 839

Commonwealth v. Two Juveniles, 397 Mass. 261, 491 N.E.2d 234 (1986) (rape prosecution; the right of confrontation guaranteed to defendant by state constitutional provision -- art. 12 of Massachusetts Declaration of Rights -- overrides state privilege protecting communications between alleged victim of rape and sexual assault counselor; "We think it clear that in certain circumstances the absolute privilege expressed in § 20J, a nonconstitutionally based testimonial privilege, must yield at trial to the constitutional right of a criminal defendant to have access to privileged communications.")

Commonwealth v. Stockhammer, 409 Mass. 867, 570 N.E.2d 992 (1991) (rape & assault with intent to commit rape; hospital records and social worker records containing information about alleged victim's treatment were protected by qualified state privilege; held, defendant's counsel had right, by virtue of art. 12 of Massachusetts Declaration of Rights, to examine those record for "evidence of bias, prejudice, or motive to lie")

Commonwealth v. Bishop, 416 Mass. 169, 617 N.E.2d 990 (1993) (child sexual abuse prosecution; scope of right of defendant under Massachusetts constitution to review patient records falling within Massachusetts' psychotherapist-patient privilege; Stockhammer distinguished)

Commonwealth v. Fuller, 423 Mass. 216; 667 N.E.2d 847 (1996) 

2.2.2.5.1 Rape Shield Laws, Due Process, and the Right to a Fair Trial

Chambers v. Mississippi, 410 U.S. 284 (1973) (due process right of criminal defendant to fair trial and his right to confront witness were improperly abridged by state evidentiary rules -- its hearsay rule and its rule barring a party from impeaching its own witness -- precluding defendant from introducing evidence of out-of-court confessions of another person admitting commission of the crime for which defendant was on trial)

Washington v. Texas, 388 U.S. 14 (1967) (state statute disqualifying criminal accomplices from serving as witnesses on behalf of criminal defendants allegedly involved in the same crime violates defendant's Sixth Amendment right to compulsory process, which is guaranteed by the Fourteenth Amendment and thus made applicable to the states)

Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (father accused of sexual abuse of his minor subpoenaed state child welfare records about his daughter ; state law made these records confidential; due process may require some disclosure of these records, at least to the trial court for in camera review):

"The Pennsylvania Supreme Court also suggested that the failure to disclose the CYS file violated the Sixth Amendment's guarantee of compulsory process. Ritchie asserts that the trial court's ruling prevented him from learning the names of the "witnesses in his favor," as well as other evidence that might be contained in the file.

"Although the basis for the Pennsylvania Supreme Court's ruling on this point is unclear, it apparently concluded that the right of compulsory process includes the right to have the State's assistance in uncovering arguably useful information, without regard to the existence of a state-created restriction -- here, the confidentiality of the files.

"This Court has had little occasion to discuss the contours of the Compulsory Process Clause. The first and most celebrated analysis came from a Virginia federal court in 1807, during the treason and misdemeanor trials of Aaron Burr.

"Chief Justice Marshall, who presided as trial judge, ruled that Burr's compulsory process rights entitled him to serve a subpoena on President Jefferson, requesting the production of allegedly incriminating evidence. n11 United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807). Despite the implications of the Burr decision for federal criminal procedure, the Compulsory Process Clause rarely was a factor in this Court's decisions during the next 160 years. More recently, however, the Court has articulated some of the specific rights secured by this part of the Sixth Amendment. Our cases establish, at a minimum, that criminal defendants have the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt."

(footnotes omitted)

3. The Character Evidence Rule & Sexual Propensity Evidence in Civil Actions

3.1 Common Law Rules & Traditional Principles

Selected Material from 1A Wigmore on Evidence § 64:

Thompson v. Church, 1 Root 312, 312 (Conn.) (per curiam) (qui tam for assault; defendant's character as a malicious, quarrelsome man was rejected): The general character is not in issue; the business of the court is to try the case and not the man; and a very bad man may have a very righteous cause.

Smets v. Plunket, 32 S.C.L. (1 Strob. 372, 375 (1847). WARDLAW, J.: [T]he evidence tendered towards this purpose [of showing the plaintiff incapable of fraud charged in a setoff], if it could have laid bare the heart of the plaintiff, and ascertained really the strength of his moral principles, it would have been highly influential. But examinations in Court into general character, according to reputation, usually distinguish only between two classes, the good and the bad, without nice discriminations between the infinite degrees and varieties which exist of either class; of most persons, there is really no general reputation as to character, and of some the general reputation is widely different from the truth, which a full knowledge of their motives, principles and habits would disclose. Sometimes upon trials, the good are overthrown by unexpected assault, and often the bad are burnished and strengthened by the ready testimony which their influence procures in their favor, whilst many of their neighbors, who think ill of them, shrink from being examined, or being examined, cannot say that the suspicions which they entertain, and which they feel rather than know that others also entertain, have been uttered so as to constitute a bad reputation. In investigations concerning character, feeling and prejudice are more frequently exhibited than in inquiries upon any other subject. The number of witnesses is often extended far beyond the limit, which, upon other topics, the Court would indulge; and if there be contrariety of opinion, the matter usually is left at last in great uncertainty. These considerations suggest the propriety of adhering closely to the rules which have been established to regulate the admission of evidence of reputation concerning general character. If, in every case where an act of dishonesty is imputed, the imputation may be met by such evidence, then there are few cases into which such evidence might not be introduced; trials would be insupportably tedious, and the result of a trial would as often depend upon the popularity of a party, as upon the merits of his case.

In New York character once might have been admissible to show the doing or non-doing of an act in some civil actions. See, e.g., Townsend v. Graves, 3 Paige Ch. 453, 455-456 (N.Y.Ch. 1832) (character admissible in cases of "a crime, or any other act involving moral turpitude" if evidenced only "by circumstantial evidence, or by the testimony of witnesses of doubtful credit"). But this no longer appears to be official doctrine in New York. See, e.g., Goberman v. McNamara, 76 Mist. 2d 791, 352 N.Y.S.2d 369, 370 (Sup. Ct. 1974) ("'the character of a party may not be shown in a civil case to raise an inference that either he did or did not do the act in question,'" quoting Richardson on Evidence (9th ed. 1964)); Brennan v. Commonwealth Bk. & Trust, 65 A.D.2d 636, 409 N.Y.S.2d 266, 268 (1978) (action against defendant arising out of alleged assault and battery on plaintiff by defendant's employee; "while evidence of a party's reputation is admissible where his character is in issue (e.g., actions based on libel or slander), such evidence is not admissible where, as here, it is intended solely to create an inference as to who the aggressor was"). Fur further discussion see 1A Wigmore, supra, n. 1.

The reviser of Wigmore's discussion of character evidence in civil cases expressed some doubts about Wigmore's claim that character evidence has no probative value in civil cases. See 1A Wigmore, supra, §58.2 n. 2. Wigmore originally wrote:

A party's character is usually of no probative value. Where the issue is whether a contract was made or broken, whether money was paid or property improved by mistake, whether goods were illegally converted or a libel published, there is no moral quality in the act alleged, or at any rate any moral quality that may have been present is ignored by the law; and moral character can therefore throw no light on the probability of doing or not doing. In torts involving violence or actual fraud, such a moral quality may appear; but, apart from these exceptions, it is either nonexistent or immaterial:

Wigmore's reviser replied:

Query: Has Wigmore shifted his position? Compare the remarks in the text of this section with his observations in §55 supra, where he claims that evidence of the character of a defendant in a criminal case is "essentially relevant" (although generally excludable when first offered by the prosecution). The contrasting treatment of the probative qualities of character evidence in criminal and in civil cases suggests the notion that character evidence must have adverse moral connotations, but in his discussion in §55 Wigmore had little to say about any moral qualities of character evidence. There, in arguing for the relevancy of character as denoting "a fixed trait or the sum of traits," he did not seem to assume that such traits necessarily consist of traits and dispositions of a moral sort.

Assume, for the sake of argument, that "character evidence" -- as that phrase is used in the law -- connotes something about the moral and ethical dispositions of a person. Does it then follow that the character of the parties in a civil action ordinarily has no probative value for the issue of the doing or not-doing of acts by those parties? The reviser finds it most difficult to understand the basis for the claim that character evidence is not pertinent to an issue such as breach of contract. Doubtless in many situations character evidence will have little probative value, but this hardly supports the proposition that character evidence can never have probative value with respect to such issues. One is led to wonder whether Wigmore, perhaps too much affected by the legal temper of his times, may have made the mistake of supposing that the moral qualities of a person are necessarily immaterial to matters such as breach of contract because he supposed that behavior with respect to contractual obligations and the like are in no way determined by the moral beliefs of a person and that a person, however moral, always takes the position of a Holmesian "bad man" with respect to such matters. 1 Louisell & Mueller, Federal Evidence §142 (1978) (discussing Wigmore's approach to the problem of admissibility of character evidence in civil cases; authors suggest that Wigmore's view that character evidence does not have probative value in civil cases "rest[s] upon the premise that the conduct typically in issue in civil cases represents much less a departure from an accepted 'norm' than does the conduct typically in issue in criminal cases, hence that between the criminal and civil spheres the probative worth of character evidence decreases to a point below the minimal standard of relevancy set by Rule 401"); cf. Reyes v. Missouri Pac. R.R.; 589 F.2d 791, 793 (5th Cir. 1979) (character evidence excluded in both criminal and civil cases because of its "slight probative value" and the danger of prejudice).

A separate question is whether Wigmore was right in suggesting that character evidence does not amount to character evidence if the type of disposition shown does not refer to some sort of moral quality. The answer to this question is unclear. On the one hand, it may be necessary to take such a position to reconcile the many instances in which the character rule is construed to exempt matters such as habit evidence; on the other hand, the reporters are full of decisions that seem to treat as habit evidence any variety of dispositions that in no way seem to pertain to an actor's moral characteristics and dispositions. See general remarks of the reviser in §54.1 supra.

3.1.1 Defendant's Sexual Propensity in Civil Cases Involving Claims of Sexual Misconduct (under Common Law & Traditional Principles)

3.1.2 Alleged Victim's Sexual Propensity in Civil Cases Involving Claims of Sexual Misconduct (under Common Law & Traditional Principles)

3.2 Modern Legislation & Principles

3.2.1 Defendant's Sexual Propensity

3.2.1.1 Federal

Federal Rule of Evidence 415 (for legislative history see LII's Notes on the legislative history of Rule 413)

Daniel L. Overbey, "FEDERAL RULE OF EVIDENCE 415 AND PAULA CORBIN JONES V. WILLIAM JEFFERSON CLINTON: THE USE OF PROPENSITY EVIDENCE IN SEXUAL HARASSMENT SUITS," 12 Notre Dame J.L. Ethics & Pub. Pol'y 343 (1998)

Jane Harris Aiken, "Sexual Character Evidence in Civil Actions: Refining the Propensity Rule, 1997 Wis. L. Rev. 1221 (1997)

3.2.1.2 States

3.2.1.2.1 California(?)

3.2.2 Alleged Victim's Sexual Propensity in Civil Actions Involving Claims of Sexual Misconduct (Recent Legislation & Legal Principles)

3.2.2.1 Federal

Federal Rule of Evidence 412 & LII notes on the legislative history of Rule 412

•Rule 412 was first made applicable to civil actions by a 1994 amendment of the Rule.

3.2.2.2 States

Cal. Evid. Code §  ---

1. Right of Confrontation: Screening of Child Sex Crime Victims in the Courtroom from the Sight of the Defendant

Coy v. Iowa, 487 U.S. 1012 (1988)

Maryland v. Craig, 497 U.S. 836 (1990)

Opinion of the Justices to the Senate, 406 Mass. 1201, 547 N.E.2d 8 (1989) (advisory opinion; Massachusetts constitution requires face-to-face confrontation)

Now (i.e., 2004) practically every Confrontation problem involving inculpatory out-of-court statements requires consideration of Crawford v. Washington.

Now (i.e., 2004) every Confrontation problem involving inculpatory out-of-court statements requires consideration of Crawford v. Washington. 

 3. Partisan Pretrial Interrogation of Children: The Shaping of Memory and Belief

I wonder if you agree that the following Supreme Court opinions are relevant to the issue of partisan or one-sided pretrial interviewing of witnesses by agents of the government: Little v. Streater, 452 U.S. 1 (1981); California v Trombetta, 467 U.S. 479 (1984) (defendants were convicted of drunk driving; law enforcement agencies took breath samples from the drivers and the results of tests done on the samples were admitted into evidence to show intoxication; law enforcement agencies did not preserve any breath samples taken from the drivers when they were stopped; the failure of the law enforcement agencies to do, it was held, did not violate due process); Ake v. Oklahoma, 470 U.S. 68 (1985) (indigent criminal defendant in a capital case had a constitutional right to the pretrial assistance of a court-appointed psychiatrist since defendant had shown that his sanity was likely to be a significant issue at the trial and in any sentencing proceeding); Arizona v. Youngblood, 488 U.S. 51 (1988) (defendant charged with abducing, molesting, and sodomizing a ten year old boy; failure of government to preserve semen samples and other physical evidence held not to be a violation of due process)

Should the due process clause be said to impose a general obligation on the government to preserve exculpatory or potentially exculpatory evidence? If any obligation of this kind exists, does it extend to non-tangible evidence? If not, why not?

In Trombetta the Court made the following frank and interesting acknowledgment:

"Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed 'what might loosely be called the area of constitutionally guaranteed access to evidence.' United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.

"The most rudimentary of the access-to-evidence cases impose upon the prosecution a constitutional obligation to report to the defendant and to the trial court whenever government witnesses lie under oath. Napue v. Illinois, 360 U.S. 264, 269-272 (1959); see also Mooney v. Holohan, 294 U.S. 103 (1935). But criminal defendants are entitled to much more than protection against perjury. A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. Brady v. Maryland, 373 U.S., at 87. Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant's guilt. United States v. Agurs, 427 U.S., at 112. The prosecution must also reveal the contents of plea agreements with key government witnesses, see Giglio v. United States, 405 U.S. 150 (1972), and under some circumstances may be required to disclose the identity of undercover informants who possess evidence critical to the defense, Roviaro v. United States, 353 U.S. 53 (1957).

"Less clear from our access-to-evidence cases is the extent to which the Due Process Clause imposes on the government the additional responsibility of guaranteeing criminal defendants access to exculpatory evidence beyond the government's possession. On a few occasions, we have suggested that the Federal Government might transgress constitutional limitations if it exercised its sovereign powers so as to hamper a criminal defendant's preparation for trial. For instance, in United States v. Marion, 404 U.S. 307, 324 (1971), and in United States v. Lovasco, 431 U.S. 783, 795, n. 17 (1977), we intimated that a due process violation might occur if the Government delayed an indictment for so long that the defendant's ability to mount an effective defense was impaired. Similarly, in United States v. Valenzuela-Bernal, supra, we acknowledged that the Government could offend the Due Process Clause of the Fifth Amendment if, by deporting potential witnesses, it diminished a defendant's opportunity to put on an effective defense. n6 458 U.S., at 873.

"We have, however, never squarely addressed the government's duty to take affirmative steps to preserve evidence on behalf of criminal defendants. The absence of doctrinal development in this area reflects, in part, the difficulty of developing rules to deal with evidence destroyed through prosecutorial neglect or oversight. Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed. Cf. United States v. Valenzuela-Bernal, supra, at 870."

In Ake v. Oklahoma, supra, the Court made the following suggestive, tantalizing, and insightful statement:

"Meaningful access to justice has been the consistent theme of these cases. We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense." (470 U.S. at 77.)

Did -- or does -- the Court mean what it said? (I am inclined to think not.)

1. Hard Science, Soft Science & Junk Science

1.1 Scientific Consensus Test

Frye v. United States, 293 F. 1013, 1014 (D.C. Cir., 1923); People v. Kelly, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (1976)

1.2 Scientific Validity and Reliability Test

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)

1.3 Soft Science

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999

Expert testimony about (lack of) (eye)witness credibility, held admissible: State v. Chapple (1983) 135 Ariz. 281, 660 P.2d 1208, 1220-1222 (1983); State v. Sellars, 52 N.C.App. 380, 278 S.E.2d 907, 921-922 (1981); Admissibility, at criminal prosecution, of expert testimony on reliability of eyewitness testimony, 46 A.L.R.4th 1047, §4f (1986). {Cases such as these may be a two-edged sword.}

1.4 Junk Science

People v. Cegers, 7 Cal. App. 4th 988, 9 Cal. Rptr. 2d 297 (1992) (defendant's conviction for assault with a deadly weapon and other crimes reversed; trial court erred in excluding portion of expert's testimony about sleep disorder that allegedly plagued defendant, "confusional arousal syndrome"):

"Dr. Mitler had examined Cegers and caused him to be examined by Dr. Poceta, a neurologist. Poceta had performed an EEG on Cegers, the results of which were considered by Mitler in his diagnosis. Mitler took a history from Cegers. He also administered an all-night test of oxygen in Cegers's blood by use of an instrument called an 'oximeter.' This was done when Cegers was in jail and at a time when he had no alcohol in his system. The purpose of the test is to measure the "oxygen saturation" in the blood during sleep. If sleep disorders occur which alter breathing habits the oxygen level will be decreased, resulting in detrimental consequences in terms of brain and cardiovascular functions. The oximeter is a device used for various medical diagnostic purposes and is well accepted in the medical community. No challenge was made to Dr. Mitler's testimony based upon any suggestion of unreliability in the testing of Cegers's blood oxygen content.

"Dr. Mitler was prepared to testify that Cegers suffered from apnea, and that on the day of the assault he also suffered from "confusional arousal syndrome." The oximeter showed that at times during Cegers's sleep his oxygen level diminished, caused by some defect in breathing patterns. This condition, called 'sleep apnea,' causes confusion and abnormal behavior upon being awakened, such as sleepwalking. The condition is exacerbated by excess alcohol consumption. Sleep apnea is a well-recognized condition, being listed in manuals which categorize diseases such as the International Classification of Diseases (ICD-9) and the psychiatrists' more specialized diagnostic manual (DSM-III-R). After extensive voir dire out of the presence of the jury, the doctor's testimony about Cegers's sleep apnea, as well as its potential impact on his conduct when suddenly awakened, was found admissible and presented to the jury.

"The excluded portion of Dr. Mitler's testimony was that which would have explored the syndrome called 'confusional arousal syndrome.' The syndrome is associated with people who have sleep apnea and are awakened during a period of depressed mental functioning. They are able to perform motor functions, such as walking, while still mentally asleep. In severe cases such persons can be violent, causing injury or death to others, in which event their condition has been termed 'homicidal somnambulism.' The condition is properly termed physiological rather than psychological, because it results from an anomaly of the brain.

"Dr. Mitler was prepared to testify that Cegers suffered from confusional arousal syndrome on the night of the assault. His opinion was based upon the oximeter test he had administered, Cegers's history (which included recitation of sleepwalking and sleep disorders), the evidence of excessive alcohol use on the night in question, and the bizarre nature of the assault itself. Mitler's diagnosis also relied upon Dr. Poceta's EEG test, which revealed no brain tumors or other readily discernible brain abnormalities. In that Cegers was charged with first degree attempted murder, this testimony was clearly relevant, if admissible, in terms of Cegers's state of mind at the time of the assault."

2. Syndrome Evidence

2.1 What Is a "Syndrome"?

2.2 Syndrome Evidence Offered against a Criminal Defendant

Minnesota v. Saldana, 324 N.W.2d 227 (Minn. 1982) (rape trauma syndrome inadmissible to show that rape occurred) (footnotes omitted):

"Rape trauma syndrome is not the type of scientific test that accurately and reliably determines whether a rape has occurred. The characteristic symptoms may follow any psychologically traumatic event. American Psychiatric Association, Diagnostic [*230] and Statistical Manual of Mental Disorders 236 (3d ed. 1980). At best, the syndrome describes only symptoms that occur with some frequency, but makes no pretense of describing every single case. C. Warner, Rape and Sexual Assault 145 (1980). The jury must not decide this case on the basis of how most people react to rape or on whether Fuller's reactions were the typical reactions of a person who has been a victim of rape. Rather, the jury must decide what happened in this case, and whether the elements of the alleged crime have been proved beyond a reasonable doubt.

"The scientific evaluation of rape trauma syndrome has not reached a level of reliability that surpasses the quality of common sense evaluation present in jury deliberations. As we stated in refusing to permit introduction of 'battering parent' syndrome, the evidence may not be introduced "until further evidence of the scientific accuracy and reliability of syndrome or profile diagnoses can be established." State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981). Permitting a person in the role of an expert to suggest that because the complainant exhibits some of the symptoms of rape trauma syndrome, the complainant was therefore raped, unfairly prejudices the appellant by creating an aura of special reliability and trustworthiness. Since jurors of ordinary abilities are competent to consider the evidence and determine whether the alleged crime occurred, the danger of unfair prejudice outweighs any probative value. To allow such testimony would inevitably lead to a battle of experts that would invade the jury's province of fact-finding and add confusion rather than clarity.

"Rape trauma syndrome is not a fact-finding tool, but a therapeutic tool useful in counseling. Because the jury need be concerned only with determining the facts and applying the law, and because evidence of reactions of other people does not assist the jury in its fact-finding function, we find the admission of expert testimony on rape trauma syndrome to be error. "

People v. Bledsoe, 36 Cal. 3d 236, 681 P.2d 291, 203 Cal. Rptr. 450 (1984) ("The principal issue on appeal is the propriety of the trial court's admission of expert testimony by a rape counselor that, after the incident in question, the alleged victim suffered from 'rape trauma syndrome.' As we explain, although in a rape prosecution expert testimony on the after effects of rape may be admitted for a variety of purposes, we conclude that the evidence in this case was not admissible for the purpose for which it was offered -- namely, to prove that a rape had occurred."; but error in admitting the evidence was found harmless)

2.2.1 Syndrome Evidence Offered against Criminal Defendant to Show Behavior of Alleged Victim

In the Matter of R.M., 165 Misc.2d 441, 627 N.Y.S.2d 869 (Fam Ct. 1995) (child sexual abuse "validator"; syndrome evidence held inadmissible)

Fleener v. State, 648 N.E.2d 652 (Ind. App. 1995) (criminal prosecution for child sexual abuse; evidence concerning "post-traumatic stress syndrome" held admissible)

Battered women’s syndrome; expert testimony in criminal actions; exception; sufficiency of foundation; abuse and domestic violence; applicability to Penal Code

(a) In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding battered women’s syndrome, including the physical, emotional, or mental effects upon the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge.

(b) The foundation shall be sufficient for admission of this expert testimony if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness. Expert opinion testimony on battered women’s syndrome shall not be considered a new scientific technique whose reliability is unproven.

(c) For purposes of this section, "abuse" is defined in Section 6203 of the Family Code and "domestic violence" is defined in Section 6211 of the Family Code.

(d) This section is intended as a rule of evidence only and no substantive change affecting the Penal Code is intended.

2.2.2 Syndrome Evidence Offered against Criminal Defendant to Show Behavior of Defendant

State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981) (battering parent syndrome inadmissible)

2.3 Syndrome Evidence Offered by Criminal Defendant

People v. Stoll, 49 Cal. 3d 1136, 783 P.2d 698, 265 Cal. Rptr. 111 (1989) (defendant , who was charged with committing lewd and lascivious acts upon a child, offered testimony of a psychologist that defendant displayed no signs of "deviance" or "abnormality"; prosecutor argued that this psychological testimony was admissible only if it is first shown that "a psychological 'profile' of a child molester exists, and that its absence in a particular person [it] is generally accepted by other experts to mean that the person has not molested children"; the trial court excluded the psychological testimony, which the California Supreme Court found to be error)

3. Repressed or Recovered Memories

Ramona v. Superior Court, 57 Cal. App. 4th 107, 66 Cal. Rptr. 2d 766 (1997) (order in child sexual abuse civil action to exclude testimony based on memory "recovered" via administration of sodium amytal; court relies in part on People v.] Shirley, 31 Cal. 3d 18, 181 Cal. Rptr. 243, 723 P.2d 1354 (1982), which bars the use of hypnotically-refreshed testimony against criminal defendants)

The Paul Ingram Case (Washington State)

Elizabeth Loftus & Katherine Ketchan, The Myth of Repressed Memory (cloth, St. Martin's Griffin, 1994)

Lawrence Wright, Remembering Satan: A Case of Recovered Memory and the Shattering of an American Family (cloth, Alfred A. Knopf, 1994)

Richard Ofshe and Ethan Watters, Making Monsters: False Memories, Psychotherapy, and Sexual Hysteria (cloth, Charles Scribner & Sons, 1994)

Ian Hacking, Rewriting the Soul: Multiple Personality and the Science of Memory (paper, Princeton U. Press, 1995)

Mark Pendergrast, Victims of Memory: Incest Accusations and Shattered Lives (paper, Upper Access Books, 1995)

Martin A. Conway, ed., Recovered Memories and False Memories (Oxford U. Press, 1997)

Daniel L. Schachter, The Seven Sins of Memory: How the Mind Forgets and Remembers (Houghton Mifflin, 2001) (The "sins" are (i) transience, (ii) absent-mindedness, (iii) blocking, (iv) misattribution, (v) suggestibility, (vi) bias, and (vii) persistence.)

Michael Sean Quinn, "Memory, Repression and Expertise: Civilly Actionable Sexual Misconduct in Texas and Civil Rights," 3 Tex. Forum Civ. Lib & Civ. R. 1 (1997)

Sheila Taub, "The Legal Treatment of Recovered Memories of Child Sexual Abuse," 17 J. Legal Med. 183 (1996).

Richard Leo, "'Recovered Memory' and the Law: The Social and Legal Construction of Repressed Memory," 22 Law & Soc. Inquiry 653 (1997) (review essay; discussion of four books about recovered memory)

Comment, "Repression, Memory, and Suggestibility: A Call for Limitations on the Admissibility of Repressed Memory Testimony in Sexual Abuse Trials," 66 U. Colo. L. Rev. 477 (1995)

cf. hypnotically-induced testimony (Shirley, Rock, etc.)

See also

Blog: Hypnosis & Witnesses & Subconscious Inference

Wikipedia on Perception as Unconscious Inference

Blog: Direct Inference:Indirect Inference::Direct Perception:Indirect Perception? (January 17, 2004)

INFERENCE & PERCEPTION

Alva Noë & Evan Thompson, Vision and Mind: Selected Readings in the Philosophy of Perception (MIT Press, 2002)

Irvin Rock, The Logic of Perception (MIT Press, 1983)