Cohn v. Papke, s. 79-3531

• Decision Date: 31 August 1981
• Docket Number: 79-3664 and 79-3729,Nos. 79-3531,s. 79-3531
• Citation: 655 F.2d 191
• Parties: 8 Fed. R. Evid. Serv. 1362 Gordon H. COHN, Plaintiff-Appellant, v. Richard William PAPKE and Joseph Charles Brazas, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 191

655 F.2d 191

8 Fed. R. Evid. Serv. 1362

Gordon H. COHN, Plaintiff-Appellant, v. Richard William PAPKE and Joseph Charles Brazas, Defendants-Appellees.

Nos. 79-3531, 79-3664 and 79-3729.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 6, 1981.

Decided Aug. 31, 1981.

Michael R. Mitchell, Woodland Hills, Cal., for plaintiff-appellant.

Richard M. Helgeson, Deputy City Atty., Los Angeles, Cal., argued for Papke, et al.; S. Thomas Todd, Deputy City Atty., Los Angeles, Cal., on brief.

Lucas Guttentag, Los Angeles, Cal., for amicus curiae NAACP.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, Chief Judge, NELSON, Circuit Judge, and MUECKE, ^* District Judge.

PER CURIAM:

Claiming that he was a victim of police brutality, plaintiff-appellant Gordon Cohn brought this suit pursuant to 42 U.S.C. § 1983 and California law, seeking general and punitive damages from defendants-appellees Richard Papke and Joseph Brazas, Los Angeles police officers. Cohn alleged deprivation of specified constitutional rights and invoked pendent jurisdiction for parallel state causes of action.

Trial by jury commenced on May 8, 1978. The jury rendered a verdict in favor of both of the appellees and against Cohn. The district court then awarded the appellees attorney's fees in the amount of $14,000. Cohn appeals both the judgment on the verdict and the award of attorney's fees. We find merit in one of his numerous claims, and thus we reverse the judgment, vacate the award of attorney's fees, and remand for further proceedings in light of this opinion.

The reversible error we find was the introduction of testimony and psychiatric reports concerning Cohn's prior sexual experiences and sexual preferences. On one of the nights in question, Cohn was arrested by Officers Papke and Brazas on the charge that he had solicited Officer Brazas to engage in a homosexual act. Cohn testified that he had not solicited the officer and that the officer had misinterpreted his actions. Cohn claimed that he had behaved as he did because he was gathering information for an article he was writing about vice operations in the area.

In an attempt to show that Cohn had solicited the officer, the appellees then offered the offending evidence. During the cross-examination of Cohn, the appellee's counsel off-handedly asked Cohn: "By the way, Mr. Cohn, are you bisexual?" Cohn's counsel strenuously objected at side bench, with objections similar to those he had made to the judge prior to the trial:

(The question) is (i)rrelevant and immaterial to any issue in this case, your Honor. The question of whether he was bisexual or homosexual can in no way be related to whether or not he would have a tendency to solicit either male or female or any other kind of prostitution.

The connection is far too great a one to ever make. In addition, we object on the grounds that it would be highly prejudicial if in fact he responded yes, simply because society doesn't accept that kind of behavior at this particular time.

Appellees' counsel then indicated that he was asking this question in an effort to "impeach" Cohn:

Your Honor, there has been a denial from reading over the pretrial conference order and the information elicited from Mr. Cohn that he is in fact not a homosexual, as far as I understand it, and is not bisexual; therefore, he could not have solicited an act of prostitution dealing with a member of the male sex.

I believe that the question asked goes to that particular issue as to whether Mr. Cohn is physically capable of involving himself in a homosexual act.

The judge then ruled that the evidence was admissible:

He was charged with soliciting and his defense is that he was not soliciting, he was just out getting articles and materials for an article he was going to write.

We think it is relevant testimony and the objection will be overruled.

The court thus allowed the question, stating that it was relevant. The court also allowed Cohn to be questioned further about his sexual preferences and sexual experiences. Briefly, Cohn ultimately testified that he had had homosexual experiences before, which he stated meant that he had masturbated with another man. He denied, however, ever being paid for the sexual use of his body, or paying for such use of another's, ever committing sodomy or oral copulation with a man, or ever soliciting prostitution.

In addition, the appellees offered and the judge admitted portions of previous psychiatric evaluations of Cohn. These records stated that Cohn had told a psychiatrist more than a year before the incidents in question that he was bisexual, that he had infrequent homosexual experiences from ages 12-19 and more frequently after that, that he had an "intense desire for girls" and "vivid sexual fantasies," and that he had experienced "numerous heterosexual relationships by age 13." Over objections, the court admitted the excerpts on the grounds that they were "proper impeachment" and were "admissions and conclusions."

First, we have doubts whether some of this evidence was even relevant in the most basic sense. The Federal Rules of Evidence ¹ define relevant evidence as evidence tending to make the existence of a consequential fact "more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Certainly there is at least a serious question whether this evidence, and especially the evidence regarding Cohn's heterosexual experiences years earlier, was relevant at all. But, even assuming that all of this evidence was relevant under Rule 401, we still find that it should not have been admitted.

By the introduction of this evidence, the appellees stated that they were trying to impeach Cohn's claim that he was not homosexual or bisexual, and therefore not "physically capable" of committing a homosexual act. While evidence may be admissible for purposes of impeachment, the admission of this evidence was not justified because there was nothing to impeach. When this evidence was initially introduced Cohn had never claimed that he was heterosexual and so would not have solicited the officer. In fact, the only references to his sexual preferences and experiences made in court were made during cross-examination. There was no contention that Cohn was not physically capable of committing a homosexual act.

The only other purpose to which the evidence had any relevance was to show that it was within Cohn's character to commit homosexual acts from which it may be inferred that he was soliciting the officer in the hope of committing such an act on the night in question. Such use of this evidence is impermissible under Rule 404 of the Federal Rules of Evidence.

Rule 404 generally prohibits the admission of evidence of a person's character for the purpose of proving that the individual acted in conformity with that character on a particular occasion. Fed.R.Evid. 404; see C. McCormick, Handbook of the Law of Evidence § 188, at 445 (2d ed. 1972). The rationale behind this rule is the notion that this evidence has slight probative value but has a tendency to be highly prejudicial or to confuse the issues. Reyes v. Missouri Pacific Railroad Co., 589 F.2d 791, 793 (5th Cir. 1979); C. McCormick, supra, at 445; J. Weinstein & M. Berger, 2 Weinstein's Evidence P 404(03), at 404-20. The Notes of the Advisory Committee on the Proposed Rules (hereinafter "Committee Notes") expressed this concern:

"Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened."

Committee Notes to Rule 404 (quoting California Law Revision Commission). ²

The evidence of Cohn's past sexual experiences takes the focus of the jury away from the question of what actually happened that night and puts it on the character of the individual. Indeed, this use of this evidence was especially unjustified in this case because the appellees were not just trying to prove that Cohn was homosexual and would have committed a homosexual act that night, but they were also trying to prove that he was homosexual and would have solicited a homosexual act. Rule 404 does not allow such inferences to be made from such circumstantial evidence. See Reyes, 589 F.2d at 794 (evidence of appellant's prior misdemeanor convictions for public intoxication for the purpose of showing that he had a character trait of drinking to excess and that he acted in conformity with his character on the night in question, was impermissible under Rule 404); United States v. Klein, 474 F.Supp. 1243, 1248 (S.D.N.Y.) aff'd, 614 F.2d 1292 (2d Cir. 1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2985, 64 L.Ed.2d 853 (19...