Supreme Court Watch: No Constitutional Right To Present Extrinsic Evidence For Impeachment Purposes

What limits are there in presenting extrinsic evidence about a crime victim under the Sixth Amendment? In a per curiam decision on Monday, the Supreme Court reversed a Ninth Circuit opinion that a defendant was deprived of the right to present a defense during his Nevada rape trial by the exclusion of extrinsic evidence about the victim through extrinsic evidence; the Confrontation Clause also does not "entitle[] a criminal defendant to introduce extrinsic evidence for impeachment purposes"; the state evidence rule, which was comparable to FRE 608(b), focuses the jury on the central facts and avoids "minitrials on collateral issues, in Nevada v. Jackson, 569 U.S. _ , 133 S.Ct. 1990 (June 3, 2013) (per curiam) (12-694)

With all the attention directed to the U.S. Supreme Court's sharp division on the use of DNA evidence under the Fourth Amendment on Monday, June 3, 2013, another constitutional decision was released the same day that has met with much less attention. The case was decided by a unanimous court in a summary fashion. Nevada v. Jackson, 569 U.S. _ , 133 S.Ct. 1990 (2013) (per curiam) (12-694). After receiving the record in the case, it had been listed for consideration by the Court at Conference eight times. See Case Docket No. 12-694. After the eighth listing, the per curiam decsision was issued nearly a week later without oral argument. The Nevada v. Jackson decision raises significant questions about the admission of evidence under the Constitution and the role of federal habeas review to redress claims of state evidence errors.

The question posed by the Petitioner, the State of Nevada, was:

Did the Ninth Circuit exceed its authority under AEDPA [Antiterrorism and Effective Death Penalty Act of 1996] by granting habeas relief on the ground that the Nevada Supreme Court unreasonably applied “clearly established Federal law, as determined by” this Court when it held that respondent’s right to present a defense was not violated by the exclusion of extrinsic evidence through which he sought to impeach a prosecution witness on a collateral matter.
The Court concluded that the Ninth Circuit misapplied the Sixth Amendment and exceeded its authority under the federal habeas statute. The presentation of "extrinsic evidence" for the purpose of impeaching a witness did not implicate a defendant's Sixth Amendment right to right to present a complete defense and was also disallowed under the Confrontation Clause. Jackson, 569 U.S. at __.

Case Summary

The defendant was convicted of raping a victim with whom he "had a tumultuous decade-long romantic relationship." However, before the trial, victim Heathmon "sent the judge a letter recanting her prior accusations," reported she would not testify and fled. After authorities later found her and took her into custody as a material witness, she reasserted her initial charge of being raped by the defendant. She claimed that she was approached by three associate's of the defendant who threatened her if she testified. Jackson, 569 U.S. at __.

At the rape trial, the defense sought to introduce evidence of previous claims the victim had made that the defendant had raped her and that on these prior occasions the police were unable to corroborate her claims:

At trial, the theory of the defense was that [victim] Heathmon had fabricated the sexual assault and had reported it to police in an effort to control respondent [Jackson]. To support that theory, the defense sought to introduce testimony and police reports showing that Heathmon had called the police on several prior occasions claiming that respondent had raped or otherwise assaulted her. Police were unable to corroborate many of these prior allegations, and in several cases they were skeptical of her claims. Although the trial court gave the defense wide latitude to cross-examine Heathmon about those prior incidents, it refused to admit the police reports or to allow the defense to call as witnesses the officers involved.
Jackson, 569 U.S. at __.

After his trial conviction, the defendant appealed citing as error that the impeachment evidence that he had proffered had been excluded. He was unsuccessful on his state appeal; the state court ultimately ruled that the "evidence was properly excluded," and that no U.S. Supreme Court decisions "clearly establishes that the exclusion" violated his federal constitutional rights. The defendant's argument was to no avail in federal habeas corpus proceedings before the U.S. District Court. However, he met with success in the Ninth Circuit which reversed the finding that "extrinsic evidence of Heathmon's prior allegations was critical to respondent's defense, that the exclusion of that evidence violated respondent's constitutional right to present a defense, and that the Nevada Supreme Court's decision to the contrary was an unreasonable application of th[e] [U.S.Supreme] Court's precedents. Jackson v. State of Nevada, 688 F.3d 1091, 1097-1101 (9th Cir. 2012).

Application Of State Evidence Rules

One ground advanced by the defendant for affirming the Ninth Circuit was that the state trial court had violated the Sixth Amendment by excluding the extrinsic evidence because of his failure to comply with Nevada evidence procedure. That procedure

generally precludes the admission of extrinsic evidence of “[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime.” The purpose of that rule ... “is to focus the fact-finder on the most important facts and conserve ‘judicial resources by avoiding mini-trials on collateral issues.’ “
Jackson, 569 U.S. at __ (citations omitted).

The Supreme Court commented that the "constitutional propriety" of the state evidence rule "cannot be seriously disputed." The Supreme Court analogyzed the state rule to "to the widely accepted rule of evidence law that generally precludes the admission of evidence of specific instances of a witness' conduct to prove the witness' character for untruthfulness," citing FRE 608(b). Jackson, 569 U.S. at __.

There was an issue about compliance with pretrial notice. The defendant sought to utilize an exception to the general rule allowing the cross-examination of the victim "about previous fabricated sexual assault accusations and, if the witness denies making the allegations, [defendant charged] may introduce extrinsic evidence to prove that fabricated charges were made by that witness in the past." This exception applied only if "the defendant ... file[s] written notice," after which there is a hearing regarding the evidence. Since the defendant failed to "file the requisite notice, and the State Supreme Court upheld the exclusion of evidence of prior sexual assault complaints on this basis," the U.S. Supreme Court was inclined to reverse the Ninth Circuit's assessment that it was erroneous. According to the Supreme Court, the Ninth Circuit erred as "[n]o decision of this Court clearly establishes that this notice requirement is unconstitutional. Nor ... do our cases clearly establish that the Constitution requires a case-by-case balancing of interests before such a rule can be enforced." In short, the state could readily apply the evidence rule and not, as the Ninth Circuit suggested, have to weigh its interest in orderly procedure against the interest of the defendant to make a defense. Jackson, 569 U.S. at __ .

Exclusion Of Evidence Of Little Relevance

After assessing cases that generally approved of the application of state evidence rules, the Court noted that:

the proffered evidence had little impeachment value because at most it showed simply that the victim's reports could not be corroborated. The admission of extrinsic evidence of specific instances of a witness' conduct to impeach the witness' credibility may confuse the jury, unfairly embarrass the victim, surprise the prosecution, and unduly prolong the trial. No decision of this Court clearly establishes that the exclusion of such evidence for such reasons in a particular case violates the Constitution.
Jackson, 569 U.S. at __ .

In this particular case the Supreme Court observed that the circuit failed to appreciate a "distinction between cross-examination and extrinsic evidence." The Supreme Court acknowledged that its jurisprudence recognized "various restrictions on a defendant's ability to cross-examine witnesses [that] violate the Confrontation Clause of the Sixth Amendment. But this Court has never held that the Confrontation Clause entitles a criminal defendant to introduce extrinsic evidence for impeachment purposes." Jackson, 569 U.S. at __ (citing Delaware v. Fensterer, 474 U.S. 15, 22 (1985) (observing that “the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to ... expose [testimonial] infirmities through cross-examination”); Jordan v. Warden, 675 F.3d 586, 596 (6th Cir. 2012); Brown v. Ruane, 630 F.3d 62, 70 (1st Cir. 2011)).

Finally, the Supreme Court noted that in misapplying the Sixth Amendment, the Ninth Circuit also exceeded its authority on federal habeas review of a state court conviction:

The Ninth Circuit elided the distinction between crossexamination and extrinsic evidence by characterizing the cases as recognizing a broad right to present “evidence bearing on [a witness’] credibility.” 688 F. 3d, at 1099. By framing our precedents at such a high level of generality, a lower federal court could transform even the most imaginative extension of existing case law into “clearly established Federal law, as determined by the Supreme Court.” 28 U. S. C. § 2254(d)(1). In thus collapsing the distinction between “an unreasonable application of federal law” and what a lower court believes to be “an incorrect or erroneous application of federal law,” Williams v. Taylor, 529 U. S. 362, 412 (2000), the Ninth Circuit’s approach would defeat the substantial deference that AEDPA requires.
Jackson, 569 U.S. at __ .

Implications

There are several themes in Jackson that the Court touches upon, presenting multiple implications:

  • Right To Confront Witness Does Not Include Right To Use Extrinsic Evidence: The Court indicated that the right to confront one's accusers does not open the door to the use of evidence that is extrinsic to the charges. The Court suggests that some evidence rules which may properly preclude evidence. For example, the Court noted that FRE 608(b) articulates "good reason” for limiting the use of extrinsic evidence" at trial; in addition, the rule was a "widely accepted rule of evidence law that generally precludes the admission of evidence of specific instances of a witness' conduct to prove the witness' character for untruthfulness" and that its "constitutional propriety ... cannot be seriously disputed." See Jackson, 569 U.S. at __ .
  • Sufficient vs. Preferred Evidence: In noting that the defendant had been permitted considerable scope to cross-examine witnesses regarding prior allegations of sexual abuse by the victim which the victim later recanted, the defendant's right to present a defense did not encompass presentation of repetitive or cumulative evidence of the same point. What had been excluded was the admission of police reports and other documents regarding the reliability of the victim's claims against the defendant. Jackson, 569 U.S. at __ .See Jackson, 569 U.S. at __ .
  • Weight Of Evidence Rules: In Jackson the court drew a distinction between applying an exclusionary evidence rule categorically as opposed to a case-by-case weighing of interests. The Court indicated that Jackson was a case in which validity of a rule could be categorically determined, rather than engage in assessing a trade-off or balancing of the interests of the state with the interests of the defendant. See Jackson, 569 U.S. at __ .
  • Limits Of Federal Habeas Review: Finally, the case underscores the limited role of federal habeas review in considering the application of Supreme Court precedent to the application of state evidence rules.

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The following briefs were filed in the case:

Certiorari Petition Briefs

Lower Court Ruling and Docket Sheet

  • August 6, 2012: Ninth Circuit Court of Appeals Opinion Under Review: Jackson v. Nevada, 688 F.3d 1091 (9th Cir. 2012)
  • Supreme Court Docket

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