For some reason you seem very reluctant to back up your assertion that the reason for the Rape Shield Laws was that judges were dropping the ball.
OK. 
Thank you.
Any thoughts as to why this standard was uniquely needed in this area (while leaving everything else to the judge’s discretion)?
You are saying someone is unwilling to back up assertions? That’s kinda rich you know. Or at least ISTM that’s kinda rich.
I backed it up. Judges already could exclude this and didn’t. The laws removed their discretion in this area (or to be accurate limited it). If you want a cite that this discretion existed beforehand, I can find that, as I already offered.
The trouble is, you have no clue how a courtroom works.
Because judges were hostile to rape claimants.
Easy. Because this is the only area in which the victim’s prior unrelated conduct was offered as justification for the criminal act.
Nobody contends during mugging trials that the victim was asking for it because he often walked down dark alleys and carried large quantities of cash.
I guess you could theoretically defend a homicide charge by arguing that the victim actually committed suicide, but I’m not sure you could get evidence of prior suicide attempts admitted.
FP, I am a criminal defense attorney. I am going to try and answer your question as best I can… using the example of what the defense is trying to do in the Casey Anthony trial.
I want to preface this by saying:
- I probably open and close roughly 600 criminal cases a year (about 50 a month).
- 95% of my cases resolve by being dismissed without trial or by plea agreement.
- of the 5% of cases that will go to trial (typically with just a judge, no jury, not a court of record, no transcript), 4.5% will not have any civillian witnesses (beyond maybe simple identification). By civillian, I mean citizen witnesses, as opposed to law enforcement.
So, of the 0.5% of my cases, that actually have a civillian witness giving substantive testimony… maybe one goes to an actual jury trial. Of the 10 or so jury trials I have done so far, none of them have included mistaken identity as a defense where we were actually pointing the finger at someone else, except for one. However, in that case, the guy was a co-defendant… meaning he had also been accused and formally charged with the same crime.
I say this in my preface because you seem to imply that a popular defense strategy is to point the blame at a specifically enumerated person that is known to the jury and may in fact be a witness in the case. I think this is pretty rare. Extremely rare. I know this is anecdotal.
But as evidenced with the Casey Anthony trial, it does happen once in a blue moon. So…
Would I feel “morally bad” by introducing evidence or attempting to argue that my client, Casey Anthony, had been molested by her father, if I knew or had strong reason to believe that the allegation was entirely false?
Yes. And I would be worried about my bar license as well, knowing I could be disbarred for presenting evidence/testimony/soliciting testimony I know to be false.
Actually it was pretty funny… Let me go back and see if I can dig up the quote. It was from one of our most hallowed justices, who wrote several treatises on evidence law… but he basically went on and on about how women were particularly hysterical and unreliable about these types of crimes. In fact, back in the day almost every state had a law on the books that stated that only for the crime of rape, there had to be some other corroborating evidence. None of the 50 still have a corroboration law anymore, however, I think Texas still has a law that says an allegation is not sufficient evidence without corroboration if the accused comes forward more than three years after the alleged incident.
Hold on…
Indeed…
This is from 2008 41 Akron L. Rev. 981 “An Analysis of 35 years of Rape Reform: A Frustrating Search for Fundamental Fairness”
"***But it was not just jury prejudice and doubts about the credibility of women who claimed to be raped that was responsible for the high acquittal rates, it was the fact that the law itself set up barriers to conviction that were not true for other crimes. First and foremost, perhaps, was the requirement that there be corroboration for the woman’s claim that she had been raped. Our criminal justice system did not require corroboration for any other crime; were the jury to find an alleged victim of any other offense to be credible, the jury could convict solely on the word of that individual. Such was not the case for rape. 22
II. The Requirement for Corroboration
Corroboration of the woman’s claim was required because of the general acceptance of the notorious claim by Sir Matthew Hale that an allegation of rape is “easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” 23 John Henry Wigmore, the American icon of evidence, was even more damning of a woman’s claim. In the highly influential treatise, Evidence in Trials at Common Law, 24 Wigmore instructed that the findings of modern psychiatry have revealed that women’s "psychic complexes are [986] multifarious, distorted by inherent defects, partly by diseased derangements or abnormal instincts, partly by bad social environment, partly by temporary physiological or emotional conditions." 25 But it was not just that women had such problems, it was that these complexes led to the “contriving false charges of sexual offenses by men… one must infer that many innocent men have gone to prison because of tales whose falsity could not be exposed.” 26 What Wigmore recommended and instructed was that, “No judge should ever let a sex-offence charge go to the jury, unless the female complainant’s social history and mental makeup have been examined and testified to by a qualified physician.” 27 "**
I’ve never been unwilling to back up an assertion. Sometimes though, I refrain from making assertions about things that I’m unsure of, an approach you would be wise to emulate. On such occasions, you will see me saying things like “ISTM”, or “My impression is”, and on those occasions you will ask in vain for backup. This should not present a problem for an honest debater.
What does present a problem is people who declare things to be “somewhat of a misunderstanding” and can’t back up their own view with anything more than reiterations of what they’ve said, and all purpose bobbing and weaving.
Do you have any evidence that this was offered as a justification is courts (versus town gossip)? Again, the relevance of prior unrelated conduct is in establishing the plausibility of consensual sex.
That would actually be analogous to the rape situation. IMO it should be admitted.
How far does willful ignorance get you in that circumstances? My understanding (& note the qualifier, Villa) is that there is a lot of leeway here and that defense lawyers deliberately refrain from allowing their clients the opportunity to admit guilt, since they will then be constrained in what they can do in their defense.
While you’re here, and with your experience, I wonder if you can answer another related question. In a situation such as (but not specifically) the Anthony case, to what extent is the alternative theory typically based on the lawyers leading the defendant versus the defendant coming up with it on their own? IOW would someone like Anthony be dreaming up on her own the notion that she was unable to distinguish between truth and falsehood based on her father’s abuse and the defense team just running with it, or does the defense team say something like “well, you know, if you were abused as a child and were unable to distinguish between truth and falsehood as a result, then that might explain away your actions”, to which the accused would respond “well, yeah, now that I think about it, that’s exactly what happened …”
To further elaborate… With or without the sense of moral failing, it seems like a really piss poor trial strategy to me. I haven’t been following the trial, but I think the defense is trying to allege that Caylee drown in the family pool while under the supervision of her grandfather. That the grandfather conspired with Casey to cover it up. And that the reason Casey would go along with that is because she is so screwed up by her father’s previous molestation. Is that about right?
I don’t know what her attorneys have to work with, not much I guess. But at the very least, the defense admits that she conspired to commit felony obstruction of justice. I guess that keeps her out of the electric chair.
Dammit, now I’m curious about that case!
But if I did have reason to believe that my client had been molested, and I believed that evidence to be relevant and credible, I would absolutely introduce it. Nor would I feel any qualms about it.
Looks like we were typing at the same time. I have to run to court.
But the short answer is, some attorneys do this and some don’t. A very large portion of folks generally confess to the cops up front (unfortunately for me), so it doesn’t usually get there.
Some attorneys will say to their clients, “don’t tell me a thing.” Personally, I prefer that my clients give me as much information as possible, so that I can actually help them and will not be suprised mid-trial.
I will be back to elaborate further, but I do have to run.
Funny I was just kicked off a jury as a “challenge for cause” because I admitted I could not convict someone based on purely an eyewitness account.
I would say Jordan MN and Wenatchee, WA are perfect examples of why this is a bad idea.
I very much doubt a womans previous consensual sexual history would have worked with me, but I have to say I am against rape shield laws, mostly because they perpetuate the idea that the victim has any reason at all to be shamed.
But to be realistic that concept is ingrained in the Abrahamic religions and will probably not change any time soon.
It is disheartening that people actually think that the defense has a moral obligation to anyone except those they are charged to defend.
I misspoke. It’s not offered as a justification, but to demonstrate that the sex could have been consensual, as you say.
It’s not analogous because an allegation that the victim previously attempted suicide is not harmful to the victim, which is the purpose behind rape shield laws and FRE 412: