Articles Posted in Federal Criminal Law

Rule 613(b) states that “(b) …[e]xtrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires…”  Thus, the therapist can be called and his notes admitted into evidence to show that Ford made a prior inconsistent statement to him.   In he-said/she-said cases regarding adults, such inconsistencies are usually very damaging. I believe this line of attack would be the strongest that Judge Kavanaugh could present.

One of the lines of attack in the media that Judge Kavanaugh’s supporters have put forth is the propensity for alcohol abuse and the propensity for sexual promiscuity on the part of Ford.  This brings us to two of our most important Federal Rules of Evidence, 404, 408 and 412, which deal with character and extraneous conduct.  Rule 412, “The Rape Shield,” would likely not come into play in this case, because Judge Kavanaugh is not arguing consent and denies that any of the events happened.

Rule 412 states that:  (a) …[t]he following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim’s sexual predisposition.”   Thus, sexual misconduct and sexual predisposition, i.e. the “she’s a slut” defense, are generally prohibited.   But the Rule has exceptions: “(b) Exceptions. (1) Criminal Cases. The court may admit the following evidence in a criminal case: (A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the defendant’s constitutional rights.”  These exceptions probably will not apply.

The central piece of evidence in this case is Professor Ford’s testimony.   She has previously discussed her experience with a therapist, whose notes are different from her recent statements. So, on cross examination, assuming she testifies similar to her recent statements, she would be confronted with the contradictions in her previous statements, if any, with her therapist.   From my reading of the news articles, her therapist apparently wrote notes that she claimed there were four people in the room, and one male pulled Judge Kavanaugh off of her.  However, her recent statements are that there were two males in the room and she personally escaped after they all rolled off the bed to the ground.

On cross examination, these contradictions would be raised as “impeachment,” or discrediting the witness with prior inconsistent statements.  Under Rule 801(d)(1) (A), these statements are not hearsay if they are prior inconsistent statements to her actual testimony.  The rule states:  “(d) [a] statement that meets the following conditions is not hearsay: (1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement: (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.”

Professor Ford can either admit to or deny such statements.  If she admits to making the the prior inconsistent statement, the cross examination ends there.  However, from the articles I have read, she appears to claim that the therapist wrote the notes wrong, and that she said the same thing she is saying now.  In this instance, the Federal Rules allow the admission of extrinsic evidence regarding the prior inconsistent statement.  If Professor Ford denies making inconsistent statements, Under Rule 613, Judge Kavanaugh could present the therapist and his notes as evidence.

The last-minute presentation of sexual assault evidence against Judge Brett Kavanaugh has put his Supreme Court nomination limbo.   Judge Kavanaugh was not my first choice, of those on the Trump list, but I see problems on both sides of the accusation.  Sexual assault cases can be the most difficult to defend and prosecute, as they often rely on judging he-said/she-said opposite testimony with no forensic evidence.

In child cases, this is very difficult for the defendant, because jurors tend to want to believe the child. Thus, they want to force a defendant to prove that he didn’t do it, rather than following the presumption of innocence and true proof beyond a reasonable doubt burden that they would use in any other assaultive case.  In adult cases, the burden is often on the accuser, where it belongs, to prove beyond a reasonable doubt that his or her statements are truthful.  But, there can be extra emotional burden based on people’s experiences.

In this case, Professor Ford accuses Judge Kavanaugh of forcing her on a bed, attempting to unclothe her, and putting his hand over her mouth to conceal her screams.  Under Texas law and most state laws, this is attempted sexual assault.   Sexual assault and its lesser included offenses are not normally Federal crimes unless committed on Federal land such as a national park or Native American Reservation.  Additionally, the Senate hearings in which Professor Ford is supposed to testify will not be bound by the Federal Rules of Evidence as a criminal trial would be.

We cannot shut our eyes to the fact that, had the petitioner attempted to violate Proclamation No. 4 and leave the military area in which he lived, he would have been arrested and tried and convicted for violation of Proclamation No. 4. The two conflicting orders, one which commanded him to stay and the other which commanded him to go, were nothing but a cleverly devised trap to accomplish the real purpose of the military authority, which was to lock him up in a concentration camp. The only course by which the petitioner could avoid arrest and prosecution was to go to that camp according to instructions to be given him when he reported at a Civil Control Center. We know that is the fact. Why should we set up a figmentary and artificial situation, instead of addressing ourselves to the actualities of the case?

These stark realities are met by the suggestion that it is lawful to compel an American citizen to submit to illegal imprisonment on the assumption that he might, after going to the Assembly Center, apply for his discharge by suing out a writ of habeas corpus, as was done in the Endo case, supra. The answer, of course, is that, where he was subject to two conflicting laws, he was not bound, in order to escape violation of one or the other, to surrender his liberty for any period. Nor will it do to say that the detention was a necessary part of the process of evacuation, and so we are here concerned only with the validity of the latter.

Again, it is a new doctrine of constitutional law that one indicted for disobedience to an unconstitutional statute may not defend on the ground of the invalidity of the statute, but must obey it though he knows it is no law, and, after he has suffered the disgrace of conviction and lost his liberty by sentence, then, and not before, seek, from within prison walls, to test the validity of the law.

In the dilemma that he dare not remain in his home, or voluntarily leave the area, without incurring criminal penalties, and that the only way he could avoid punishment was to go to an Assembly Center and submit himself to military imprisonment, the petitioner did nothing.

June 12, 1942, an Information was filed in the District Court for Northern California charging a violation of the Act of March 21, 1942, in that petitioner had knowingly remained within the area covered by Exclusion Order No. 34. A demurrer to the information having been overruled, the petitioner was tried under a plea of not guilty, and convicted. Sentence was suspended, and he was placed on probation for five years. We know, however, in the light of the foregoing recitation, that he was at once taken into military custody and lodged in an Assembly Center. We further know that, on March 18, 1942, the President had promulgated Executive Order No. 9102, ^[n7] establishing the War Relocation Authority under which so-called Relocation Centers, a euphemism for concentration camps, were established pursuant to cooperation between the military authorities of the Western Defense Command and the Relocation Authority, and that the petitioner has been confined either in an Assembly Center within the zone in which he had lived or has been removed to a Relocation Center where, as the facts disclosed in Ex parte Endo (post, p. 283) demonstrate, he was illegally held in custody.

The Government has argued this case as if the only order outstanding at the time the petitioner was arrested and informed against was Exclusion Order No. 34, ordering him to leave the area in which he resided, which was the basis of the information against him. That argument has evidently been effective. The opinion refers to the Hirabayashi case, supra, to show that this court has sustained the validity of a curfew order in an emergency. The argument, then, is that exclusion from a given area of danger, while somewhat more sweeping than a curfew regulation, is of the same nature — a temporary expedient made necessary by a sudden emergency. This, I think, is a substitution of an hypothetical case for the case actually before the court. I might agree with the court’s disposition of the hypothetical case. ^[n8] The liberty of every American citizen freely to come and to go must frequently, in the face of sudden danger, be temporarily limited or suspended. The civil authorities must often resort to the expedient of excluding citizens temporarily from a locality. The drawing of fire lines in the case of a conflagration, the removal of persons from the area where a pestilence has broken out, are familiar examples. If the exclusion worked by Exclusion Order No. 34 were of that nature, the Hirabayashi case would be authority for sustaining it. [p232] But the facts above recited, and those set forth in Ex parte Endo, supra, show that the exclusion was but a part of an over-all plan for forceable detention. This case cannot, therefore, be decided on any such narrow ground as the possible validity of a Temporary Exclusion Order under which the residents of an area are given an opportunity to leave and go elsewhere in their native land outside the boundaries of a military area. To make the case turn on any such assumption is to shut our eyes to reality.

On March 2, 1942, the petitioner, therefore, had notice that, by Executive Order, the President, to prevent espionage and sabotage, had authorized the Military to exclude him from certain areas and to prevent his entering or leaving certain areas without permission. He was on notice that his home city had been included, by Military Order, in Area No. 1, and he was on notice further that, at sometime in the future, the Military Commander would make an order for the exclusion of certain persons, not described or classified, from various zones including that, in which he lived.

March 21, 1942, Congress enacted ^[n3] that anyone who knowingly

shall enter, remain in, leave, or commit any act in any military area or military zone prescribed . . . by any military commander . . . contrary to the restrictions applicable to any such area or zone or contrary to the order of . . . any such military commander

ROBERTS, J., Dissenting Opinion

JUSTICE ROBERTS.

I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights.