Sherman & Plano, TX Criminal Defense Lawyer Blog

On direct examination, neither party can testify as to specific instances of misconduct to show truthfulness or untruthfulness.  However, 608(b) states “…[b]ut the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:  (1) the witness; or  (2) another witness whose character the witness being cross-examined has testified about.”   Specific instances of untruthfulness do not appear to be a major piece of evidence yet, but Kavanaugh’s opponents have claimed that he has lied under oath several times so far.   If they were able to prove it extrinsically, they could potentially do so on cross-examination of him.

Character evidence is generally inadmissible in Court under Rule 404.  But, it plays a much bigger role in criminal cases.  A defendant without a criminal history is much more likely to put on evidence of good character or of a pertinent character trait.  Rule 404(a)(2) allows, in a criminal case in that “…a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; (B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may: (i) offer evidence to rebut it; and (ii) offer evidence of the defendant’s same trait…”

Dr. Kavanaugh may want to offer a pertinent character trait about behaving appropriately around women.   However, if so, the Government would be able to offer contrary evidence to his behavior around women to rebut the same.   We have heard from his supporters, and we have heard from his detractors that he targeted women for clerkship hiring that “had a certain look.”   We also now have a second female classmate saying he stuck his penis in her face at a college drinking party.   Dr. Kavanaugh’s mentor has been removed from the Federal Bench for sexually inappropriate behavior, but that is likely too distant to be relevant, unless it could show that Kavanaugh was involved.   None of his former clerks have so far come forward against him, but in a real investigation, this would be an important part of the investigation.  If he offered any pertinent character trait, these would be offered against him as much as allowed.

Here, we are dealing with a 35 year-old allegation of sexual misconduct for which no physical evidence would be present due to the age of the case and the nature of the allegation.   Additionally, Kavanaugh has not stated that he and Ford engaged in criminal activity, so (B) is out.  (C) is interesting as a catchall of “constitutional” admissibility.   The only way this would normally come in is as “alternative perpetrator.” evidence.   If Kavanaugh attempts to say that third party did the act Ford alleges, and could provide a foundation for the evidence, this sexual conduct could become admissible.   But, some Courts have said that this is normally only relevant when identity is an issue.   Kavanaugh could argue that intoxication and history make his identity an issue, but his primary defense of fabrication would be confused.  So, this wouldn’t be a likely course.

Both Kavanaugh and Ford’s detractors have pointed to their education and reputations in the community for truthfulness.  Ford has had colleagues who researched with her state what a stickler for the facts she is. And, Kavanaugh has naturally put forward a laundry list of law and school-related supporters of his veracity.  In Federal Court, once they have been attacked for their lack of truthfulness, each side can put in character witnesses to prove that they either have a reputation for being truthful, or that a witness has an opinion that they are a truthful person under Federal Rule of Evidence 608.  Rule 608(a) states “…[a[ witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.”

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.