United States v. LeMay, 260 F.3d 1018 U.S.

Court of Appeals for the Ninth Circuit 2001

Chapter 9 Title A Return to Relevance II: Character and Habit
Page 382 Topic FRE 413-415
Quick Notes
LeMay opposed the prosecution's attempt to introduce evidence of prior acts of child molestation, challenging the
constitutionality of Fed. R. Evid. 414. LeMay also claimed that the evidence was not admissible under Fed. R. Evid. 403,
arguing that its potential for prejudice far outweighed its probative value.

Holding
o The court held that Rule 414 was constitutional. The court also held that the district judge applied Rule 403
conscientiously and did not abuse his discretion in finding that the prior acts of child molestation were not so
prejudicial as to outweigh their probative value. The evidence was relevant, especially where defendant challenged
victim's credibility. Lastly, the court held that Rule 414 did not violate the Equal Protection clause.
Book Name Evidence: A Contemporary Approach. Sydney Beckman, Susan Crump, Fred Galves. ISBN: 978-0-314-19105-2.

Issue o Whether prior acts molestation testimony allowed by FRE 414 is constitutional? Yes, but the judge must conduct FRE 403 balancing.

Procedure
Trial
o The district judge rejected defendant's facial constitutional challenge. He determined that Rule 403 did not otherwise
preclude the introduction of the prior acts of molestation, and that Rule 414 was not unconstitutional as applied to
defendant
Appellant
o The court held that Rule 414 was constitutional. The court also held that the district judge applied Rule 403
conscientiously and did not abuse his discretion in finding that the prior acts of child molestation were not so prejudicial
as to outweigh their probative value. The evidence was relevant, especially where defendant challenged victim's
credibility. Lastly, the court held that Rule 414 did not violate the Equal Protection clause.

Facts Discussion Key Phrases Rules
Pl - United States
Df - LeMay

Description
o Fred LeMay, a 24 year old Native American
Indian, sexually assaulted his two sisters who were
5 and 7 at the time.
At Trial
o His sisters children were 7 and 9.
o They testified to the assault.
Cross-Examination (Boys had motive)
o LeMays counsel suggested that the boys did not
remember the events accurately.
o They had motive to lie, because they were in foster
care and wanted to return home.
Prosecution (Past Rape Conviction)
o Then was permitted to introduce testimony that the
Df had a juvenile rape conviction stemming from
two 1989 sexual assaults of a 2 year and eight
month old daughter.
403 Balancing
o Trial judge conducted a 403 balancing test.
o Admitted evidence under FRE 414.
LeMay Due Process
o Contends that admitting this evidence was a
violation of his due process.

Rule 414 changes this general rule with respect to child molestation cases.
o It makes such evidence admissible, providing that:
o In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's
commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on
any matter to which it is relevant.

LeMay Rule 414 violate due process
o The traditional rule preclude prior bad acts to prove his disposition to commit the type of crime.

Court LeMay has a very high burden of proving a due process violation
o It was not met.

In Dowling v. United States,
o The Court held that a rule or practice must be a matter of "fundamental fairness" before it may be said to be of constitutional
magnitude.
o The defendant determines if the rule is deeply rooted not the State.

Court - No shown
o LeMay has NOT shown that the traditional ban on propensity evidence involves a "fundamental conception of justice."

Court Determining if a rule if fundament as to be embodied in the Constitution
o This determination is a historical practice.
o Does not lead to a clear conclusion.
o Courts have routinely allow propensity evidence in sex-offense cases.
o States that do not have FRE 414 415, will stretch 404(b) by resorting to the so-called lustful disposition exception.

Court Nothing Fundamentally unfair about allowing propensity evidence under FRE 414.
o As long as FRE 403 protections remain in place.
o District judges retain the discretion to exclude evidence that is far more prejudicial than probative.
o With FRE 403 intact, LeMay loses much of his force in his due process challenge.

Molestation Evidence indisputably relevant
o The introduction to relevant evidence is not a constitutional violation.
o Rule 404(b) to prove preparation, identity, intent, motive, absence of mistake or accident, and for a variety of other purposes.

When it is unconstitutional?
o Only if its prejudicial effect far outweighs it probative value.

Court - LeMay's prior acts of molestation
o Admitting was proper.
o The evidence of LeMay's prior acts of child molestation was highly relevant.
o The 1989 molestations were very similar to the charged crimes.
o Each case involved forced oral copulation.
o In each case the victims were young relatives of LeMay, and each instance occurred while LeMay was babysitting them.

Court Prior acts bolster victims credibility, after LeMay said they were fabricating
o The prior acts evidence was relevant to bolster the credibility of the victims after LeMay suggested they could be fabricating the
accusations.

Court Must Consider
o Remoteness
o 11 years had passed between LeMays abuse of his nieces and his trial for the abuse of D.R. and A.R.
o There was also evidence of another incident, which suggest frequency of events.
o Intervening events
o Have little relevant in this case.

Court Relevance of prior acts was in the details (Necessity Factor)
o Francines testimony was necessary to establish that LeMays 1989 molestations were similar.
o Her testimony was necessary to fill in all the details.

Court Holding
o The record shows that the district judge struck a careful balance between LeMay's rights and the clear intent of Congress that evidence
of prior similar acts be admitted in child molestation prosecutions

Rules
404(b) Other crimes, wrongs, or acts
o Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
o It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that
upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at trial.


Rule 414. Evidence of Similar Crimes in Child Molestation Cases
(a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is
admissible, and may be considered for its bearing on any matter to which it is relevant.
(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses
or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.
(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
(d) For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and "offense of child molestation" means a crime under Federal law or the law of a State (as
defined in section 513 of title 18, United States Code) that involved
o (1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child;
o (2) any conduct proscribed by chapter 110 of title 18, United States Code;
o (3) contact between any part of the defendant's body OR an object AND-
the genitals or anus of a child;
o (4) contact between the genitals OR anus of the defendant AND-
any part of the body of a child;
o (5) deriving sexual pleasure or gratification from the
infliction of death,
bodily injury, or
physical pain on a child; or
o (6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5).





Judd v. Rodman, 105 F.3d 1339 U.S. Court of Appeals for the Eleventh Circuit 1997

Chapter 9 Title A Return to Relevance II: Character and Habit
Page 407 Topic Rule 412
Quick Notes
Judd contracted genital herpes following a sexual relationship with Rodman. During discovery, Rodman asked numerous questions about Judd's prior sexual history, employment
as a nude dancer, and breast augmentation surgery.

Expert Testimony Rodman Used an Expert to talk about Gential Herpes
o Expert testimony revealed that the herpes virus can be dormant for long periods of time and the infected person can be asymptomatic.

Court - Holding
o Given the evidence of (breast augmentation, prior sexual history, and nude dancing) was probative value that substantially outweighed any prejudicial effect.

Rule 412 Discussion
o Fed.R.Evid. 412(a)(1)
o The rule provides that "evidence offered to prove that any alleged victim engaged in other sexual behavior,"
o Fed.R.Evid. 412(a)(2)
o "evidence offered to prove any alleged victim's sexual predisposition,"
o Both 412(a)(1) and 412(a)(2) are generally inadmissible in civil cases.

Rule 412(a) Engaged in OTHER sexual behavior
o Provides that "evidence offered to prove that any alleged victim engaged in other sexual behavior" will generally be excluded.

Rule 412(b) Exception Probative Value
o Provides an exception to exclusion when the "probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party."
Book Name Evidence: A Contemporary Approach. Sydney Beckman, Susan Crump, Fred Galves. ISBN: 978-0-314-19105-2.

Issue
o Whether FRE412 bar sexual behavior (having sex with others, nude dancing, breast augmentation, prior sexual history) when the probative value substantially outweighs its
prejudicial effects? No, evidence is not barred.

Procedure
Trial
o United States District Court for the Northern District of Georgia, which granted judgment in favor of appellee basketball player in an action alleging that appellee wrongfully
transmitted genital herpes to appellant
Appellant o Affirmed.

Facts Discussion Key Phrases Rules
Pl - Judd
Df - Rodman

Contracted Herpes
When Overturning Evidence
o We overturn evidentiary rulings only when the moving party has proved a substantial prejudicial effect.

Rule 412 Discussion
o Judd contracted genital herpes following a sexual
relationship with Rodman.
File Suit
o She subsequently filed a complaint against Rodman
alleging several causes of action related to her
contraction of genital herpes: tortious transmission
of a sexual disease, battery, fraud, and intentional
infliction of emotional distress.
Discovery
o During discovery, Rodman asked numerous
questions about Judd's prior sexual history,
employment as a nude dancer, and breast
augmentation surgery.
o Fed.R.Evid. 412(a)(1)
o The rule provides that "evidence offered to prove that any alleged victim engaged in other sexual behavior,"
o Fed.R.Evid. 412(a)(2)
o "evidence offered to prove any alleged victim's sexual predisposition,"
o Both 412(a)(1) and 412(a)(2) are generally inadmissible in civil cases.

Exception
o Rule 412(b)(2)
o Evidence of sexual behavior and predisposition which is otherwise admissible if "its probative value substantially outweighs
the danger of harm to any victim and of unfair prejudice to any party."
o Note (involving rape and sexual harassment)
o To date, Rule 412 has been applied only to civil cases involving rape and sexual harassment.
o Sexual Transmitted diseases had NOT been determined
o Thus, the applicability of Rule 412 to cases involving transmission of a sexually transmitted disease has not been determined
yet by any court.

Circuit Courts Discussion

District Court Judge
o Did not think 412 applied to STDs
o The court ordered a motion in limine.

Court Need not decide if 412 applies to STDs.

Court 412 Analysis (Breast augmentation, prior sexual history, and nude dancing)
o The district court said Judd waived her right based on 412 to the admissibility of (Breast augmentation, prior sexual history, and
nude dancing) evidence, because she did not properly OBJECT at trial.

Prior Sexual History Discussion

Judd Contends Prior Sexual History
o Judd contends that admission of evidence of her prior sexual history warrants a reversal of the judgment against her.

Court To find reversal
o To find error warranting reversal,
1. Judd NEEDED to make a timely objection
2. That a substantial right was affected.

Rule 412(a) Engaged in OTHER sexual behavior
o Provides that "evidence offered to prove that any alleged victim engaged in other sexual behavior" will generally be excluded.

Rule 412(b) Exception Probative Value
o Provides an exception to exclusion when the "probative value substantially outweighs the danger of harm to any victim and of unfair
prejudice to any party."

Judd contends - The balancing test of Rule 412(b)
o Evidence of her prior sexual history should have been excluded because its probative value failed to outweigh substantially the
unfair prejudice toward her.

Expert Testimony Rodman Used an Expert to talk about Gential Herpes
o Expert testimony revealed that the herpes virus can be dormant for long periods of time and the infected person can be asymptomatic.

Court Prior Sexual relationships was highly relevant to Rodman's liability
o Consequently, evidence of prior sexual relationships and the type of protection used during sexual intercourse was highly relevant to
Rodman's liability.
o The court did not abuse its discretion in admitting evidence of Judd's prior sexual history.

Employment as a Nude Dancer Discussion

Judd contends Exclude nude dancing
o Judd contends that evidence of her prior employment as a nude dancer should have been excluded under Rule 412(a)(2).
o Because it was offered to prove her sexual predisposition.

Objected to motion in limine
o Judd objected to the admission of this evidence both in a motion in limine and at trial and, thus, preserved the issue for appeal.
o She fails, however, to show that a substantial right was affected by the admission of the evidence.

Court Could have admitted nude dancing
o Finding that the probative value substantially outweighed the prejudicial effect.

Judd felt dirty after she contracted herpes
o Judd testified that she felt "dirty" after she contracted herpes.

Court Judd continued her nude dancing
o Judd's employment as a nude dancer before and after she contracted herpes was probative as to damages for emotional distress
because it suggested an absence of change in her body image following the herpes infection.

Court - Holding
o Given the evidence of (breast augmentation, prior sexual history, and nude dancing) was probative value that substantially
outweighed any prejudicial effect.
o Accordingly, we resolve that Judd has not shown that the court's admission of this evidence constituted reversible error.
Affirmed

Rules
Motion in limine
o (Latin: "at the threshold") is a motion, made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial. This is done in
judge's chambers, out of hearing of the jury. If a question is to be decided in limine, it will be for the judge to decide. Usually it is used to shield the jury from possibly inadmissible and harmful
evidence.

Rule 412 Discussion
o Fed.R.Evid. 412(a)(1)
o The rule provides that "evidence offered to prove that any alleged victim engaged in other sexual behavior,"
o Fed.R.Evid. 412(a)(2)
o "evidence offered to prove any alleged victim's sexual predisposition,"
o Both 412(a)(1) and 412(a)(2) are generally inadmissible in civil cases.

Rule 412(a) Engaged in OTHER sexual behavior
o Provides that "evidence offered to prove that any alleged victim engaged in other sexual behavior" will generally be excluded.

Rule 412(b) Exception Probative Value
o Provides an exception to exclusion when the "probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party."



sexual behavor construed to mean intercourse, conduct, & sexual fantasies
o Judd v. Rodman: Judd suing Rodman for allegedly giving her sexual herpes. Rodman
allowed to get in evidence that she had other sex partners (relevant bc she could have
gotten herpes from them, since it can lay dormant) & that she was a nude dancer (bc she
claimed the herpes had effected her body image, claiming emotional distress, he was
allowed to get this evidence in to show that she still had a good body image).
o Note: there is a presumption that an accusers prior claims of sexual assault will not be
admissible because the advisory committee believes that failure to report is far more
common than a false report
Rule 404(b)-- The Prosecutors Rule
o Evidence of other crimes, wrongs or acts not admissible to prove the character of a
person in order to show conformity therewith. It may, however, be admissible for other
purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity or absence of mistake or accident, entrapement, provided that upon request by
the accused (ie Motion of Defense necessary) the prosecution, in a criminal case, shall
provide reasonable notice in advance of trial or during trial if the court excuses pretrial
notice on good cause shown, of the general nature of any such evidence it intends to
introduce at trial. **KAMP POEI
Only specific act evidence is admissible--
no need for a conviction/arrest, the prosecution just has to bring some
evidence (written or testimonial) that the prior act occurred
can even use crimes that the was acquitted of because of lower
burden of proof (a reasonably jury could find that did it)
can bring in specific acts that occurred before & after the crime in
question
404(b) is subject to a Rule 403 balancing test
In a criminal case, the defense counsel should file a MOTION asking for Notice
of prosecutions intent to bring in specific acts evidence