He’s not available for interviews, what with being in prison. Admittedly he should’ve been a long time before he actually went but that is not my fault.
I’m saying it’s up to the judge and jury to determine just how “implausible” or “unlikely” it is. The attorney is only justified in torpedoing it if he knows it’s false.
How is it that the defendant’s claim that the father did it can be a taint upon the guy for the rest of his life because people will think it might be true, but be too unlikely and implausible to be considered by the actual jury?
In the hypothetical situation in post 58, how would the attorney know it’s false?
Because people read about the allegations in the newspaper but don’t have access to all the testimony and evidence that the jury has. i.e. The same reason why people who read about the case in the papers aren’t the ones determining the guilt or innocence of the defendant.
No, I don’t disagree with the wisdom of rape shield laws, except in a few very narrow set of circumstances.
As a general proposition, rape shield laws stand for the proposition that a rape victim’s prior consensual sexual history is not relevant for the purpose of determining if the sex act at issue in the current trial was consensual. This makes perfect sense: how is it relevant for the jury to hear that the victim had thirty-four previous consensual sexual partners? How would that help them resolve the current claim?
However, the victim’s past history is relevant in a couple of instances. First in a victim of tender years, there is an automatic inference that the victim simply doesn’t know about sexual issues. If a seven year old victim can correctly describe the male sex organ and the effects of fellatio upon it, the jury will feel both disgust and a strong inference that the acts in question must have happened, for how else would a child know of such things? It is then a short leap for the jury to conclude, at the behest of the prosecutor, that the accused must have been the one responsible for imparting such knowledge.
If the prosecutor urges the jury to conclude that the accused was the only one from whom the victim could have learned of such things, then the defense should have every right to tell the jury that another person could have been the source of the experience in question.
Secondly if the act in question was of some sort of unique character, the defense should be entitled to rebut obvious inferences. For example, the prosecution claims rape; the defense is that the victim wanted to realistically play out a rape fantasy and induced him to accost her and tie her up. She denies doing such a thing, and says she would never do such a thing. It’s absolutely relevant for the defense to produce her Craigslist ads asking for help in carrying out a rape fantasy and the testimony of three other men that did so with her.
Her defense is that the child died accidentally and the father covered it up, not that he killed her.
First - the attorney wouldn’t, so Waldo said don’t torpedo the evidence. Because how would he know? How would any of us?
Second - so, on the one hand, the jury’s greater access to evidence makes them the best decision-maker for the case. On the other hand, the jury shouldn’t have access to this evidence, because if they do, the public will hear about it, and they’ll make a bad decision… because they don’t have access to all the evidence.
It’s more likely that a woman with 34 prior sexual partners had another random sexual encounter than it is that a woman with very few prior sexual partners did so.
Same reason it’s more likely that a witness with a history of lying is lying yet again, or that an accused person with a history of violence was violent yet again.
You’re assuming that those 34 sexual encounters were “random,” which is not necessarily the case. And even if it were, it seems to me that the real issue whose odds needs calculation is whether hte man committed a rape, as it seems unlikely that the man knew ahead of time how many partners a woman has had.
The question as I see it is this.
Is the attorney going to present any defense that the accused wants to present, regarldess of how ridiculous or unlikely it might seem? And regardless of the potential harm it can do to another person’s reputation?
You can further refine the question thusly:
Is a defense attorney required to do so by his professional code of conduct? This is a GQ type of question that I don’t know the answer to.
The question in the OP is different: is it morally right to throw wild accusations around in the hope of clearing a defendant? My answer would be no, if the accusation is one that can reasonably be determined to be spurious.
In the case of the accusation of Casey Anthony against her father (that he molested her), I would say that the accusation lacks enough evidence to be tenable, and even if it is the defense attorney’s duty to present that defense to the jury, it is not morally right.
Yes, you are correct, and I misstated the defense.
I’m not assuming anything. The woman’s history may or may not have a bearing in a given hypothetical case. If you think the distinction between “random” and not random is always crucial, then let’s make the hypothetical case one in which the defense has actual evidence of “random” encounters.
No idea what you mean with this.
Again, the issue is whether the man committed a rape. An alternative scenario being put forth by the defense is that there was consensual sex. The likelihood that the man committed the rape depends in large part on how plausible the alternative scenario is. The woman’s history of sexual encounters may and frequently will have a bearing on how plausible that alternative scenario is.
There seems to be somewhat of a misunderstanding about why the special evidentiary rules to do with rape were introduced. The evidence now prohibited could (and should) always have been excluded, under rules like 403 and its forerunners. Judges should not admit evidence that is more prejudicial than probitive. But judges were dropping the ball. They showed in multiple cases they were admitting evidence that didn’t meet this requirement, as well as being actively hostile to rape complainants. Judges were making comments along the lines of it being impossible for a woman wearing jeans to be raped…
Moreover, rape is already treated differently, making different evidential requirements more relevant. If you meet someone in a bar one night, and the next day you are found with their car, you could defend yourself from charges of theft by saying the person gave you permission, but you’d need to demonstrate that permission if they disputed it. If you fuck a woman you meet in a bar one night, and she claims rape, the prosecution would have to prove she not only didn’t give consent, but also actively expressed non-consent.
A cite would be handy. (It’s hard to understand why we would rely on judges for everything else but find them suddenly incompetant WRT this issue.)
My impression was that the reason for these laws was that many women were reluctant to come forward with charges of rape because they knew what the defense lawyers might do to them and their reputations.
How is that relevant here? Are you saying it’s unnecessary to be able to show the plausibility of alternative theories because of the high evidentiary requirement?
And it should be noted - because a lot of people get confused about it - that “evidence” doesn’t necessarily refer to DNA type evidence. The testimony of the alleged victim that she actively expressed non-consent is evidence of that non-consent, and if the jury finds her testimony compelling they can and will convict solely on that basis.
Not sure what you want a cite to. The idea that judges were notorious in how they treated rape case? Or the idea that judges before these evidentiary rules could exclude evidence that was more prejudicial than probitive?
The reason I mentioned the required proof is that it shows there are differences in what we require from a complainant depending on the alleged crime, which bears on what we view as admissible evidence. Evidence that a person regularly lent their car to total strangers and forgot about it is allowed because if the person is now denying giving permission, the defendant has to prove that permission was given. In a rape case, however, there isn’t that requirement. The prosecution has to prove active non-consent.
That this was the basis for the rape shield laws, as opposed to the reason I gave.
That’s fine, but whether or not the prosecution has proved non-consent is impacted by how plausible other scenarios are. So the defense being barred from introducing evidence which makes their competing theory more plausible has a significant impact.
You’re presenting it as if the prosecution’s evidence is presented in a vacuum, but it’s not.
So it’s the second half (the part you snipped) you want a cite to? That judges could already exclude this evidence but weren’t? I guess I can look that up. By the way, these aren’t rape shield laws. They’re evidentially rules specific to cases of sexual assault. Rape shield laws refer to keeping complainants’ identities concealed.
And you are 100% missing the point of the evidentiary comments. I’m not saying that the situation requires anything, or that anything is in a vacuum. Just that because the proof requirements differ, it is more understandable that the evidentiary standards would differ too.
It’s hard for me to understand what you’re doing here. No it’s not the part that I snipped that I want a cite to. I snipped it for a reason.
I want a cite to your claim that “why the special evidentiary rules to do with rape were introduced” was because “judges were dropping the ball”. Which is what I said (“basis for the rape shield laws”). Let’s stick to what I say, thanks.
I believe you’re wrong about this.
I disagree with this (as applied to this situation).
Interestingly enough, you’re right on the definition of Rape Shield Laws according to wiki. My bad…
OK, as to the substantive elements.
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Judges always had the power to exclude this evidence on a case by case basis. They weren’t. Obviously if the evidence isn’t introduced by a defense attorney, there’s no need to exclude it. But my point is that the what the fix does simply shifts the rule under which the evidence is excluded and formalized it. Judges always could and arguably should have excluded it, but they weren’t.
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As to your disagreement with the application in this situation, it doesn’t really warrant any response but you’re wrong.
Hey FP… I just went and read through three different law review articles about the genesis of rape shield laws. I can’t cite them because I accessed them through lexis.
The concensus was that there were multiple reasons that rape shield laws became necessary, and were adopted almost uniformly across the U.S. within a decade. Protecting the reputation of the victim/accuser was only a part of it. Not an insignificant part, but only a part. It seemed more paramount, however, to provide a standard to which trial judges could be held regarding the admissibility of certain evidence (by creating appellate relief if a trial judge got it wrong).
But all rape shield laws allow some exceptions, and again it becomes a balancing act of probative vs. prejudicial. The burden shifts to the defense to show that the specific evidence is more probative than prejudicial.
For instance, in the Kobe Bryant case, there was evidence that the alleged victim had sex with a boyfriend 15 hours after she claimed to have been “violently raped,” by Kobe. When the Colorado judge ruled that this bit of evidence was relevent, more probative than prejudicial, and could be admitted at trial, the prosecutors (with the accuser’s blessing) dropped the criminal case.