Doe v. U.S., s. 81-1995

Citation666 F.2d 43
Decision Date03 December 1981
Docket NumberNos. 81-1995,81-5209,s. 81-1995
Parties9 Fed. R. Evid. Serv. 945 F. DOE, Appellant, v. UNITED STATES of America, W. Farley Powers, Jr., in his official capacity as Clerk of the United States District Court for the Eastern District of Virginia, Appellees. UNITED STATES of America, Appellee, v. Donald Robert BLACK, Appellee. F. Doe, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Lewis F. Powell, III, Richmond, Va. (Hunton & Williams, Richmond, Va., on brief), for appellant.

Vincent D. Hardy, Petersburg, Va., N. George Metcalf and Robert Jaspen, Asst. U. S. Attys., Richmond, Va., for appellees.

Before BUTZNER, RUSSELL, and HALL, Circuit Judges.

BUTZNER, Circuit Judge:

These appeals concern the district court's evidentiary ruling in a pre-trial proceeding held pursuant to rule 412 of the Federal Rules of Evidence. 1 The court held that evidence concerning the past sexual behavior and habits of the prosecutrix was admissible in the rape trial of Donald Robert Black. We conclude that we have jurisdiction to hear her appeal, and we affirm in part and reverse in part the order of the district court.

I

The appellant is the alleged victim and chief government witness in the impending rape trial of Black. 2 Pursuant to rule 412 of the Federal Rules of Evidence, Black made a pre-trial motion to admit evidence and permit cross-examination concerning the victim's past sexual behavior. After a hearing, the district court ruled that Black could introduce the evidence which he proffered. 3

Several days later, the district court granted Black's motion for the issuance of subpoenas for individuals who were to testify about the victim's sexual history. These included the victim's former landlord, a social worker who had previously investigated the victim, a sexual partner of the victim, and two people who claimed to be aware of the victim's reputation for promiscuity.

Thereafter, the victim instituted a civil action seeking the permanent sealing of the record of the rule 412 proceedings and other relief. 4 During the course of this civil action, the court learned that the rape victim had not received notice of the earlier proceeding as mandated by subsection (c)(1) of rule 412. Consequently, it reopened the rule 412 hearing. The court then reaffirmed its prior ruling in the criminal case and entered summary judgment in favor of the defendants in the civil action. The victim appeals from the orders in both the civil and criminal actions. 5

II

Black asserts that this court lacks jurisdiction to entertain the victim's appeal from the district court's order in the rule 412 proceeding. Resolution of this issue requires an examination of the procedural provisions of the rule.

Rule 412 places significant limitations on the admissibility of evidence concerning the past sexual behavior of a rape victim. The rule provides the additional safeguard of a hearing in chambers to determine the admissibility of such evidence. These provisions were adopted "to protect rape victims from the degrading and embarrassing disclosure of intimate details about their private lives." 124 Cong.Rec. at H 11945 The text, purpose, and legislative history of rule 412 clearly indicate that Congress enacted the rule for the special benefit of the victims of rape. The rule makes no reference to the right of a victim to appeal an adverse ruling. Nevertheless, this remedy is implicit as a necessary corollary of the rule's explicit protection of the privacy interests Congress sought to safeguard. Cf. Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). 6 No other party in the evidentiary proceeding shares these interests to the extent that they might be viewed as a champion of the victim's rights. 7 Therefore, the congressional intent embodied in rule 412 will be frustrated if rape victims are not allowed to appeal an erroneous evidentiary ruling made at a pre-trial hearing conducted pursuant to the rule.

(1978). To effectuate this purpose, subsections (c)(1) and (2) of the rule require that rape victims receive notice of the evidentiary hearing and a copy of the defendant's motion and offer of proof. Additionally, subsection (c)(2) makes provision for the victim's testimony at the evidentiary hearing.

Section 1291 of title 28 U.S.C. confers on courts of appeals jurisdiction to review final decisions of the district courts. The Supreme Court has held that this finality requirement should be "given a 'practical rather than a technical construction.' " Gillespie v. U. S. Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 310-11, 13 L.Ed.2d 199 (1964). The Court also has instructed that the most important considerations for determining whether an order is final are "the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other." Dickinson v. Petroleum Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324, 94 L.Ed. 299 (1950).

In this case the balancing of these factors weighs heavily in favor of a conclusion of finality. The inconvenience and costs associated with permitting the victim to appeal are minimal. Certainly, they are no greater than those resulting from government appeals of suppression orders that are authorized by 18 U.S.C. § 3731. Because the rule provides for pre-trial evidentiary hearings, appeals are unlikely to involve significant postponements of criminal trials. Indeed, in this case, we heard the appeal and filed an order resolving the issues without any delay of the criminal trial.

On the other hand, the injustice to rape victims in delaying an appeal until after the conclusion of the criminal trial is manifest. Without the right to immediate appeal, victims aggrieved by the court's order will have no opportunity to protect their privacy from invasions forbidden by the rule. Appeal following the defendant's acquittal or conviction is no remedy, for the harm that the rule seeks to prevent already will have occurred. Consequently, we conclude that with respect to the victim the district court's order meets Gillespie 's test of practical finality, and we have jurisdiction to hear this appeal.

III

At the pre-trial rule 412 evidentiary hearing, Black presented several witnesses who told about the victim's past sexual behavior and reputation. Black testified that although he had talked on the phone with the victim several times, he did not meet her At the conclusion of the hearing, the district court ruled that the following evidence was admissible:

until the night of the alleged crime. Several men previously had told him the victim was promiscuous, and he had read a love letter she had written to another man.

(1) evidence of the victim's "general reputation in and around the Army post ... where Mr. Black resided;"

(2) evidence of the victim's "habit of calling out to the barracks to speak to various and sundry soldiers;"

(3) evidence of the victim's "habit of coming to the post to meet people and of her habit of being at the barracks at the snack bar;"

(4) evidence from the victim's former landlord regarding "his experience with her" alleged promiscuous behavior;

(5) evidence of what a social worker learned of the victim;

(6) telephone conversations that Black had with the victim;

(7) evidence of the defendant's "state of mind as a result of what he knew of her reputation ... and what she had said to him."

Black argues that all of the evidence delineated in items 1-7 is admissible to support his claim that the victim consented, to show the reasonableness of his belief that she consented, and to corroborate his testimony. He relies on the rule's provision for the admission of constitutionally required evidence. Exclusion of the evidence, he maintains, will deprive him of the rights secured by the due process clause of the fifth amendment and the right of confrontation and compulsory process guaranteed by the sixth amendment. 8

Rule 412 restricts the admission of evidence in several respects. Subsection (a) excludes reputation or opinion evidence of the past sexual behavior of the victim. Subsection (b) provides that evidence of past sexual behavior, other than reputation and opinion, is only admissible in three circumstances: first, the defendant may introduce this evidence when it is constitutionally required, 412(b)(1); second, when the defendant claims that he was not the source of semen or injury, he may introduce evidence of the victim's relations with other men, 412(b)(2)(A); and third, when the defendant claims the victim consented, he may testify about his prior relations with the victim, 412(b)(2)(B).

The evidence delineated in items 1-5 of the district court's order clearly falls within the proscription of subsection (a) of the rule. Though sometimes couched in terms of habit, this evidence is essentially opinion or reputation evidence. Consequently, the exceptions set forth in subsection (b) do not render it admissible.

The constitutional justification for excluding reputation and opinion evidence rests on a dual premise. First, an accused is not constitutionally entitled to present irrelevant evidence. Second, reputation and opinion concerning a victim's past sexual behavior are not relevant indicators of the likelihood of her consent to a specific sexual act or of her veracity. Privacy of Rape Victims: Hearings on H.R. 14666 and Other Bills Before the Subcomm. on Criminal Justice of the Committee on the Judiciary, 94th Cong., 2d Sess. 14-15 (1976). Indeed, even before Congress enacted rule 412, the leading federal case on the subject, United States v. Kasto, 584 F.2d 268, 271-72 (8th Cir. 1978), stated that in the absence of extraordinary circumstances:

evidence of a rape victim's unchastity, whether in the form of testimony concerning her general reputation or direct or cross-examination testimony concerning specific acts with persons other than the defendant, is ordinarily insufficiently State...

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    ...412(c) and the false report evidence “indirectly” brought in past sexual behavior not admissible under the Rule. F. Doe v. United States , 666 F.2d 43 (4th Cir. 1981). The victim in a criminal rape trial may immediately appeal an adverse pretrial ruling on any Rule 412 evidence as such appe......
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