2015 VT 59
By Elizabeth Kruska
Prejudice. I wrote a post about it. Wanna read it? Here it goes.
When I’m talking prejudice in this sense, I’m talking about rules-of-evidence-type prejudice. The kind that results when juries hear inflammatory evidence that makes them decide cases not based on the facts of the case, but based on that inflammatory information. If a jury hears a case about a defendant where the evidence is shaky, but then hears that the defendant is a hundred and twelve different kinds of irrelevant bad, they might just convict based on the irrelevant bad. “I didn’t think he was guilty but then I learned he kicked a puppy when he was in grade school. He should fry.” That kind of thing. (Which, by the by, I do not condone kicking puppies.)
SCOV found that all the sins of the prosecutor in this particular case were too prejudicial, and reversed.
First, a few facts. Mr. Madigan—Hank—was charged with . . . I don’t know. Some kind of sex offense involving a teenaged girl. The girl, A.R., was friends with Hank’s daughter. A.R. had some issues in her own family, and ended up living at Hank’s house. Hank let her live there with him and his daughter in exchange for doing chores on their goat farm.
A.R. testified at trial that there were three separate incidents involving sexual touching that occurred over the course of one summer. After the last alleged incident, she asked for a lock to be installed on her bedroom door. When the lock was put in, she said the incidents stopped.
About two years later, A.R. told a friend, and then her sister, that Hank touched her. This information got to DCF, who sent an investigator to talk to her. She told the investigator the same information, which led to Hank being charged, tried, and ultimately convicted of the offenses.
Hank appealed, contending that three separate things happened during the trial that were too prejudicial. As I said above, SCOV agreed with Hank, and reversed and remanded.
First of all, the State called two separate witnesses to testify about how truthful they believed A.R. to be. Hank objected to this, but the trial court allowed the testimony anyway.
That was not okay. The rule on attacking a witness’s character for truthfulness is a little confusing (no, actually, it’s a lot confusing), and people often get this wrong. The pertinent part of the rule says that evidence for a witness’s truthful character is admissible only after the witness’s character for truthfulness has been attacked by opinion or reputation or other evidence.
In this case, Hank never asserted that A.R. was a liar or had the overall character of being a liar. He asserted that she fabricated some allegations out of jealousy. He also pointed out how her allegations were inconsistent. The State argued that because Hank attacked her story, that he was essentially attacking her character for truthfulness, so it was permissible to call the other witnesses to say that A.R. is a truthful person.
SCOV says no. Attacking inconsistencies in someone’s statements is a fundamental and regular part of cross examination. It is what makes us trial lawyers tick. A really good cross-examiner can elevate inconsistent statements to an Oscar-worthy performance. Pointing out inconsistencies or bias could undermine what the witness is claiming, but doesn’t call the witness a liar in general. Sometimes people have inconsistencies in their statements for various reasons: they can’t remember; they subsequently learned different information; they’re just plain making up their story.
In any case, Hank and his lawyer didn’t bring out the inconsistencies as a way of calling A.R. “a liar.” Attacking statements isn’t the same as attacking someone’s character for truthfulness. Courts—SCOV included—agree that there’s kind of a fine line, and that it depends on the circumstances about whether point out the inconsistencies is doing just that or if it rises to the level of a character attack.
So, SCOV looks at various factors to figure out whether it’s a character attack or just good ol’ fashioned cross. First of all, SCOV looks at the character of the contradiction. Sometimes people make innocent mistakes or misperceive things. Sometimes inconsistencies are important and sometimes they’re not. Second, SCOV considers the number of inconsistencies. One or two look like mistakes. Mountains of inconsistencies starts to make it look like the witness isn’t truthful at all. So then, the important question is whether the witness is generally untruthful, or whether the witness is just being untruthful in that particular case. There are plenty of reasons someone might bend the truth in a particular case—to protect someone, not to protect someone, for their own interest—but who are generally honest in the community.
But the rule says that there’s got to be an attack on the character of the witness before the proponent of the witness can bolster the witness with evidence that he or she is truthful generally. Not just to say that the person wasn’t truthful this particular time. The bar is pretty high.
With this backdrop, and with examination of some similar out-of-state supreme court cases, SCOV says that what happened here wasn’t an attack on A.R.’s character. It was an attack on her statements. As a result, it was not appropriate for the State to call witnesses whose purpose was to bolster A.R. as a truthful person.
Next, SCOV tackles a hearsay problem. A friend of A.R. testified. The State asked the friend, “What did she say to you?” The defense objected because obviously. SCOV drops in a footnote here and says that the State argued in its brief that the defense didn’t object here. SCOV is confused because the defense clearly did. The court overruled the objection because the State said this was admissible under the “then existing state of mind” exception to the hearsay rule.
SCOV says, “Nice try, but no.” There is a trio of hearsay exceptions that sort of all live together and fall under the “you didn’t have time to make this up” category. Sometimes people say things while they’re under the stress of an event. The thought is that if someone is actively perceiving something and blurts out some words, they’re spontaneously given and not the product of reflection or even rational thought. Someone seeing a person pointing a gun might yell out, “He’s got a gun!” This could end up being admitted as evidence because the person didn’t have time to make up a story about the gun. If the person instead yelled, “He had a gun last Tuesday!” that might not be admissible because there’s been time for reflection.
The so-called “then-existing-state-of-mind” exception (everyone calls it that, all in a big jumble out of their mouths) is one of these exceptions. The rule about this is that the proponent of the evidence has to show that the statement was contemporaneous with the state of mind they seek to prove, that there was no time to reflect and fabricate thoughts, and that the state of mind of the speaker is actually relevant to an issue in the case.
The State didn’t offer this to prove those things. The State offered it to prove that A.R. remembered or believed what happened. SCOV says, "No way." This was a backward-looking statement, and does not fall into this hearsay exception. Repeating what someone said for the truth of the contents of that statement is unreliable. That is the whole point of hearsay being inadmissible.
As an alternative to this, the State offered another exception. The State urged the adoption of the “fresh complaint” doctrine. SCOV says no. This is just a terrible idea. This is a throwback to the days of yore when it was thought that if a woman (could be anyone, but usually a woman) didn’t report a sexual assault right away that it could be presumed there was no assault. Most courts don’t recognize this, and SCOV decides not recognizing it would be a good choice. I’m not sure why the State made this argument, except perhaps as a way to urge creation of another hearsay exception to help explain why a sexual assault victim might delay in making a report. First of all, we have rules of evidence, and adding a separate doctrine doesn’t make a lot of sense; if any of the drafters of the rules wanted to include this, they could but they haven’t. Secondly, and this is more implied than anything else, it’s 2015, for heaven’s sake.
Finally, SCOV finds prejudice in the State’s closing argument. The State took some serious liberties with a rebuttal argument. The rule is that a lawyer can make an argument based on anything admitted into evidence, and can make inferences based on the evidence. However, it’s not allowed to go outside the evidence and bring in new facts. Here, the prosecutor tried to get the jury to imagine what it was like to be A.R., and inferred that she was poor and hungry, living in Mr. Madigan’s house. There wasn’t any evidence that she was poor or hungry, and the whole point of the argument seemed to be to make up facts so the jury would feel sorry for A.R.
So, SCOV looks at all this together and says that the whole sum of the problems were far too prejudicial, and led to reversible error. SCOV reverses and sends it back to the trial court.