FRE 412 As A "Rape Shield" Law

Trial judge erred by excluding defense evidence in defendant's communications crimes trial, that the victim of the defendant's alleged communications crimes had "affairs with other women"; because "no sexual misconduct was at issue" in the electronic communications case, FRE 412 which excludes evidence of alleged sexual misconduct of the victim "applies only to 'proceeding[s] involving ... sexual misconduct'" charges, in United States v. Cioni, __ F.3d __ (4th Cir. April 20, 2011) (No. 09–4321)

FRE 412 provides for the exclusion of evidence "offered to prove that any alleged victim engaged in other sexual behavior", as well as any "[e]vidence offered to prove any alleged victim's sexual predisposition." FRE 412(a). FRE 412 constitutes a federal "shield" law. The rule excludes evidence that a defendant might use to impeach the victim's testimony. In a recent case, the circuit found that the trial judge erred in applying the shield to a case not involving charges of sexual misconduct. The case emphasizes the limited applicability of the FRE rape shield rule.

In the case, defendant Cioni was charged with conspiring to execute n "electronic campaign of harassment against her former husband Enger. This conspiracy supposed to run over a year and the defendant's arrest was made after "extensive investigation." As summarized by the Fourth Circuit, the charges against the defendant were made after the FBI:

"conducted an extensive investigation and ultimately determined that the harassing calls were made ... by Cioni and her long-time friend, Sharon Thorn. The FBI learned that Cioni and Thorn had used a service known as “Spoofcard,” which enabled them to mask their telephone numbers and voices, and make downloadable audio recordings of their calls. Spoofcard's billing records, which the FBI subpoenaed, indicated that over 300 calls were made from Cioni's telephones using some or all of Spoofcard's features, and more than 220 of the calls were made to Enger's various telephone numbers. Inspired by actress Paris Hilton's reported use of similar technology to access rival Lindsay Lohan's voicemail, Cioni also used Spoofcard to access Enger's voicemail, during which time she listened to new messages, played old messages, deleted messages, and left her own disguised messages. Payment for many of the Spoofcard calls was made electronically from computers at Cioni's home and workplace, using a credit card belonging to Cioni.

The FBI's investigation also revealed that Cioni had accessed or attempted to access numerous e-mail accounts belonging to Bruce Enger, his wife, Maureen Enger, their children, and several of Enger's business associates, including Patricia Freeman, Enger's former assistant. These intrusions were documented in log files kept by AOL, Google, and other Internet service providers, which indicated that computers with Internet Protocol addresses linked to Cioni's home and office had accessed or had attempted to access each of the accounts noted. All of the accounts were password protected, and none of the account holders had shared their passwords with Cioni. The FBI discovered that Cioni had gained access to many of these e-mail accounts by using an online service known as “,” which, for a fee, acquired third-parties' e-mail passwords surreptitiously. Some of the payments to were made by Cioni using Thorn's credit card, with Thorn's permission, so as to “hide the paper trail.”"
United States v. Cioni, __ F.3d at __.

One minor aspect of the defendant's allegation of error after her jury conviction was her claim that the trial judge erred by "exclud[ing the] evidence she proffered of affairs that the victim had with other women." The defendant contended this testimony was important and the court misapplied FRE 412 in excluding it. The Fourth Circuit rejected the defendant's contention that:

"Cioni contends that the court abused its discretion in relying on Federal Rule of Evidence 412 to exclude evidence she attempted to offer concerning Enger's affairs with other women. While she is correct in asserting that Rule 412 applies only to “civil or criminal proceeding[s] involving alleged sexual misconduct” and that no sexual misconduct was at issue in her case, the error was harmless. First, the evidence Cioni sought to introduce was cumulative, inasmuch as evidence of two affairs had already been admitted into evidence. And second, the excluded evidence could not possibly have affected the verdict in light of the otherwise overwhelming evidence of guilt, including Cioni's own admissions."
United States v. Cioni, __ F.3d at __.

The Cioni case notes a small but important detail in the application of FRE 412 as a rape shield law. Where sexual issues are not at stake in the case, the victim is fair game for impeachment by evidence of sexual misconduct, if the alleged sexual misconduct is relevant. Apparently in Cioni it was relevant. As noted by the circuit the error of excluding the sexual misconduct evidence of the victim's other sexual liaisons under FRE 412 was harmless. It was harmless because the evidence excluded by the court's application of FRE 412 was merely a cumulation of evidence that had "already been admitted into evidence" by other means at the defendant's trial.

Federal Rules of Evidence