Federal Evidence Review

In plaintiff's sexual assault civil rights action against a doctor who allegedly improperly touched the plaintiff during an emergency room examination, no error in excluding evidence that another patient of the doctor claimed that the doctor also improperly touched her during a postoperative exam; the evidence was not admissible despite FRE 415 because the evidence was confusing and more prejudicial than probative under FRE 403 in light of the medical differences between the plaintiff's and the witness' situations that might require a mini-trial, in Martinez v. Cui, 608 F.3d 54 (1st Cir. June 17, 2010) (No. 09-1471)

FRE 415 makes admissible in a civil suit evidence that would be admissible under FRE 413 in criminal sexual assault trial. Applicable to both rules is the requirement that the evidence be relevant under FRE 401 and that its probative value not be outweighted by unfair prejudice under FRE 403. A recent First Circuit case reviewed the application of these rules, noting slightly different approaches taken by some of the circuits.

In the case, plaintiff Martnez sued Doctor Cui, "a first-year medical resident" for "sexually assault[ing] her by digital rape during an examination when she was an emergency-room patient." The jury was not persuaded by her evidence and it rejected her claims for civil damages. Accordingly she appealed, contending that the trial judge erred in excluding certain evidence that the plaintiff had sought to present, including a witness who claimed that the defendant also assaulted her as he did the plaintiff. The circuit affirmed the trial court's exclusion of the evidence, noting that the plaintiff's claim "raises the relationship between Rule 403 of the Federal Rules of Evidence, which permits courts to exclude relevant evidence on the ground of prejudice or confusion, and Rule 415, which removes the bar on propensity evidence and permits admission of evidence of similar acts of sexual misconduct in civil cases concerning sexual assault." Martinez, 608 F.3d at 56.

The First Circuit's analysis started from the general agreement among the circuits that "evidence admissible under" FRE 413, FRE 414 and FRE 415 were all "subject to Rule 403's balancing test for prejudicial, confusing, or misleading evidence." Indeed this requirement was virtually "universal among the courts of appeals." Martinez, 608 F.3d at 60 (citations omitted). However, the circuit noted that:

"Questions have also been raised about whether Rules 413-415 change how courts perform the Rule 403 balancing tests. That is primarily because evidence that Rules 413-415 make admissible-evidence of similar sexual assaults by the defendant-can well be the kind of inflammatory, unduly complex evidence courts often exclude under Rule 403."

Martinez, 608 F.3d at 60.

The circuit noted several approaches to this question -- imposing "external, judicially crafted rules as to district judges' consideration of evidence under Rule 415" -- not all mutually exclusive:

• Stringent Tests: "Two circuits have required district courts to apply Rule 403 with “careful attention to both the significant probative value and the strong prejudicial qualities” of this evidence." (citing Seeley v. Chase, 443 F.3d 1290, 1295 (10th Cir.2006); Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1268 (9th Cir. 2000))
• Less Stringent Tests: "Others seemingly have instructed district courts to apply Rule 403 less stringently, at least in some cases, to avoid having Rule 403 swallow evidence Congress clearly intended to make admissible." (citing Johnson v. Elk Lake Sch. Dist., 283 F.3d 138, 156 (3d Cir. 2002); United States v. Seymour, 468 F.3d 378, 385 (6th Cir.2006); United States v. Gabe, 237 F.3d 954, 959-60 (8th Cir.2001); United States v. Larson, 112 F.3d 600, 604 (2d Cir.1997))
• Factor Lists: "Several circuits have adopted factors district courts can or should consider to evaluate the admissibility of evidence under Rules 415 and 403." (citing Seeley v. Chase, 443 F.3d 1290, 1295 (10th Cir. 2006); Johnson v. Elk Lake Sch. Dist., 283 F.3d 138, 156 (3d Cir. 2002); Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1268-69 (9th Cir.2000))
• Careful Scrutiny: "[A]t least one [circuit] has suggested that appellate courts should more carefully scrutinize district courts' decisions under Rules 413-415." (citing United States v. LeMay, 260 F.3d 1018, 1022 (9th Cir. 2001)
• Constrained Discretion: Circuits noting "special rules constraining district courts' usual exercise of discretion under Rule 403 when considering evidence under Rule 415." (citing Doe v. Smith, 470 F.3d 331, 346 (7th Cir.2006); United States v. Dillon, 532 F.3d 379, 388-90 (5th Cir. 2008); United States v. Julian, 427 F.3d 471, 485-87 (7th Cir. 2005)

In Martinez, the First Circuit was less than enthusiastic about these approaches. The circuit "reject[ed] these approaches" and described its approach to FRE 415 evidence issues:

"Of course district courts must apply Rule 403 with awareness that Rule 415 reflects a congressional judgment to remove the propensity bar to admissibility of certain evidence. Cf. United States v. Rogers, 587 F.3d 816, 822 (7th Cir.2009) (“Congress has said that ... it is not improper to draw the inference that the defendant committed this sexual offense because he has the propensity to do so .”). That awareness includes the fact that the Rule 403 analysis also applies. See Fed.R.Evid. 403; Weinstein & Berger, supra § 403.02[1][a], at 403-5. Nothing in the text of Rules 413-415 suggests these rules somehow change Rule 403. See Fed.R.Evid. 413-415 (making some propensity evidence merely “admissible” but not mentioning Rule 403 and indeed cautioning that these rules do not prevent consideration of evidence under any other rule)."

The circuit then affirmed the trial court's restriction of FRE 415 evidence. The circuit explained that the trial judge was appropriately concerned that while admission of the evidence would provide "two identical or similar instances of the same type of conduct,” but that its significance would pale in comparison to the "great danger of unfair prejudice or confusion here" and that it would change the focus of the trial. The circuit found no deficiency in the trial judge's conclusion that the evidence would not survive the FRE 403 balancing test:

"First, there were significant medical distinctions in the two treatment situations that would have required extensive explanation. Martínez was in an auto accident and 'whatever trauma she suffered, it was not in her vaginal or anal area.' By contrast, [witness] B.H. had undergone surgery for Crohn's disease that basically removed her rectum and anus. 'Her intestine was rerouted to a colostomy bag, and she had been suffering from substantial leakage of fecal matter and ... fluid into her vagina.' Dr. Cui had to perform a postoperative exam to ensure B.H.'s surgical incisions were not bleeding or infected. B.H., heavily sedated on morphine, claimed that she felt-not that she saw-Dr. Cui insert his finger in her vagina. Expert testimony established that she would have had a hard time differentiating what Dr. Cui was touching, and in any event a vaginal exam would have been appropriate.
"Second, [witness] B.H.'s testimony would have required 'a minitrial,' indeed something 'in the nature of a maxitrial,' to probe the complexity of B.H.'s condition, including expert testimony. The record fully supports the district court's evaluation of the underlying facts, which are in truth even more complicated than the recitation that the court gave. That, in turn, fully supports the court's judgment that Martínez's case could get lost in the details of the 'maxitrial,' which would have been unduly prejudicial and likely to confuse the issues and mislead the jury. "

Martinez, 608 F.3d at 61.

In Martinez, the plaintiff also argued that the trial judge improperly excluded the evidence for its use in rebuttal to the defendant's testimony. The circuit found that this did not change the dynamics of FRE 415 ande FRE 403. As explained by the circuit:

"The exclusion of the rebuttal evidence from B.H. is even more easily resolved against Martínez. The district court had allowed Martínez's counsel to elicit from Cui, during cross-examination, that Cui had examined an unnamed patient's perineum without a chaperone. The court could conclude that further testimony from B.H. would require going into a great deal of background that, we have already explained, was collateral to the issues at trial and likely to confuse the jury."

Martinez, 608 F.3d at 62.