Federal Evidence Review

In civil rights action, reversing and remanding civil judgment in favor of defendant police officer on claim that the officer violated the plaintiff detainee’s civil rights by sexually assaulting her; trial court erroneously failed to explain the basis for excluding evidence of the defendant’s alleged prior improper sexual conduct toward a different detainee under FRE 415, in Blind-Doan v. Sanders, 291 F.3d 1079 (9th Cir. 2002) (No. 00-17194)

FRE 415 applies to civil cases “predicated on” conduct which consists of “an offense of sexual assault or child molestation” under FRE 413 and FRE 414 respectively. It incorporates by reference the relevancy criterion set forth by FRE 413 and FRE 414, and like those two rules also requires the probative value of that evidence be weighed according to the unfairly prejudicial standards of FRE 403. The application of FRE 415 is no stranger to controversy. A divided panel of the Ninth Circuit demonstrated this in reviewing a civil rights suit brought by a detainee against a police officer whom she alleged sexually assaulted her while she was incarcerated.

In the case, plaintiff Blind-Doan was being held in a county jail when the defendant, police sergeant Sanders “entered her cell, told her he was going to teach her a lesson, overpowered her” and sexually abused her. In pursuing a civil rights claim against the defendant, her proof was limited by the presiding magistrate judge who excluded evidence in several in limine rulings that the plaintiff offered concerning another sexual assault committed by the defendant on another victim. Without this evidence at trial, the jury entered a verdict for the defendant. The plaintiff appealed the exclusion of the evidence.

A split panel of the Ninth Circuit reversed and remanded the case in part due to the failure of the trial judge to adequately explain the basis for the exclusion. The majority could find no independent support for the court’s exclusion of the evidence. The majority concluded that the magistrate most likely misapplied FRE 415 and in doing so, failed to make requisite findings in a “clear record” as to why the plaintiff’s evidence of other sexual assaults by the defendant should be excluded. In its decision, the majority referred to a case that “set out what a trial court must do in ruling as to evidence proffered under [FRE] 415.” The 2000 case, Doe v. Glanzer, taught that:

“Rules 413, 414, and 415 were passed to make an exception to Fed. R. Evid. 404, ‘which imposed a blanket prohibition on propensity evidence.’ To be admitted under Rule 415, the evidence must qualify as relevant under Rules 401 and 402, and the trial court must additionally determine under Rule 403 ‘if its probative value is substantially outweighed by the danger of unfair prejudice.’ The court should consider the similarity of the prior acts to the acts charged; the closeness in time of the prior acts to the acts charged; the frequency of the prior acts; the presence or lack of intervening circumstances; and the necessity of the evidence ‘beyond the testimonies already offered at trial.’ ‘In the light of the sensitive nature of the evidence proffered it is important that the district court fully evaluate the factors enumerated above, and others that might arise on a case-by-case basis, and make a clear record concerning its decision whether or not to admit such evidence.”

Blind-Doan, 291 F.3d at 1083 (citing Doe v. Glanzer, 232 F.3d 1258, 1268-69 (9th Cir. 2000)).

The majority concluded that the trial court’s exclusion could not stand when the trial judge, in applying the Glanzer standard, failed to “disclose how it evaluated the factors, and its one-line order of exclusion is not ‘a clear record’ of why it decided as it did.” Blind-Doan, 291 F.3d at 1083.

In examining the excluded evidence, the majority appeared to suggest it might be readily admissible under FRE 415, or even under FRE 404(b). The evidence the judge excluded included:

“Evidence proffered by Doan qualifying within this definition [as a crime of sexual assault under FRE 413] was the testimony of Michelle Harris that, ‘prior to being booked at the Taft jail, Officer Sanders took her into a small room at the jail and tried to get her to have sex with him in exchange for letting her go free.’”

Blind-Doan, 291 F.3d at 1082.

The majority found this evidence could have been possibly considered a crime of sexual abuse under FRE 413 and accordingly, would be admissible under FRE 415 in a civil case. In addition, other evidence involving other prior assaults on others might have been admitted under FRE 404(b). This was because it was demonstrative of the “opportunity” the defendant had to commit the sexual assault, particularly as the defendant claimed that he could not commit the assault because he could be seen and heard by the prison supervisors. Proof of other similar assaults by the defendant in similar settings could serve to rebut the defense claim of lack of opportunity. This evidence might be admissible but the trial judge failed to undertake the requisite balancing under FRE 403. The majority found that these errors were not harmless.

In his dissent, Judge Fernandez briefly set out his disagreement “that a district court must explicitly set out its thought processes on the record” under FRE 415. In his view, the evidence of the other assaults was properly excluded as “lurid, highly inflammatory, generally irrelevant evidence in question.” Blind-Doan, 291 F.3d at 1083-84.

The Blind-Doan case notes the standards for application of FRE 415, and remands the case for further application and findings. The case also notes other act evidence that in addition to the FRE 415 evidence might be admissible under FRE 404(b) and that exclusion of this evidence from the trial was not harmless.