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When a federal trial judge is considering the admissibility of evidence of a past sexual assault in a civil lawsuit, the court need not make its own finding that the act probably qualifies as a sexual assault and was committed by the defendant, but only that a reasonable jury could do so and that the evidence is relevant, the 3rd U.S. Circuit Court of Appeals has ruled. The ruling in Johnson v. Elk Lake School District marks the first time the 3rd Circuit has spoken on three new federal rules of evidence. Federal Rules of Evidence 413, 414 and 415 are relatively recent additions to the rules, adopted by Congress as part of the Violent Crime Control and Law Enforcement Act of 1994. Historically, evidence law has prohibited the admission into evidence of “other crimes, wrongs, or acts … to prove the character of a person in order to show action in conformity therewith.” But the new rules establish exceptions to the general prohibition on character evidence in cases involving sexual assault and child molestation. Rules 413 and 414 apply to criminal proceedings, while Rule 415 applies to civil trials. Chief 3rd Circuit Judge Edward R. Becker found that “ever since their initial proposal, Rules 413-15 have been met with hostility by the legal establishment.” Becker noted that Congress “bypassed the ordinary rulemaking procedures” when adopting the new rules but gave the Judicial Conference 150 days to make and submit alternative recommendations. The Judicial Conference’s Advisory Committee on Evidence Rules “ardently opposed the new rules,” Becker said, saying it feared they “could diminish significantly the protections that have safeguarded persons accused in criminal cases and parties in civil cases against undue prejudice.” The Judicial Conference agreed and recommended that Congress “reconsider its policy determinations underlying Evidence Rules 413-415″ or, in the alternative, adopt amendments to Rules 404 and 405 proposed by the Advisory Committee. Congress rejected both alternatives, and the rules stand today as originally enacted. In Johnson, Becker provided trial judges with extensive guidance on how to apply the new rules. Significantly, Becker found that despite strong language in the new rules that seems to favor admissibility, trial judges still have the power to apply Rule 403 to determine whether the probative value of the evidence is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” In cases where the prior act “is demonstrated with specificity” and is “substantially similar to the act(s) for which the defendant is being sued,” Becker found that Congress intended “that the probative value of the similar act be presumed to outweigh Rule 403′s concerns.” But in a case where the evidence of the past act is “equivocal” or “differs from the charged act in important ways,” Becker found that “no presumption in favor of admissibility is in order, and … the trial court retains significant authority to exclude the proffered evidence under Rule 403.” Applying those principles to Betsy Sue Johnson’s case, Becker found that U.S. District Judge James F. McClure of the Middle District of Pennsylvania did not abuse his discretion in barring her from presenting evidence of a teacher’s alleged incident with another teacher to prove her claim of sexual harassment. In the suit, Johnson claimed that her guidance counselor, Wayne Stevens, sexually harassed and abused her from 1991 to 1993 while she was a high school student in the Elk Lake School District in northeastern Pennsylvania. Johnson claimed that soon after she started making regular visits to Stevens’ office to discuss family difficulties, he made sexual advances, repeatedly sending her letters, roses, cards and other suggestive correspondence, and attempting on numerous occasions to hug and kiss her without her consent. At one point, she said, he fondled her breasts and vagina. At trial, Johnson’s lawyer wanted to present the testimony of Karen Radwanski, a former co-worker of Stevens’, regarding a bizarre incident in which Stevens is alleged to have picked her up off the floor in another teacher’s office and, in the course of doing so, touched her in the crotch. McClure barred the evidence, and the jury later exonerated Stevens. In the appeal, Johnson argued that the evidence of the prior alleged incident should have been admitted under Rule 415. Johnson also appealed McClure’s pretrial ruling that dismissed her claim against the school district. Becker found that McClure’s dismissal of the claims against the school district was proper because Johnson “failed to adduce any credible evidence showing that Stevens’ supervisors knew or should have known of any danger of abuse at a time at which they could have acted to prevent Johnson’s injuries.” But most of Becker’s opinion is devoted to a discussion of the alleged incident with Radwanski and whether it was admissible under the new rule. Becker found that Rule 415 permits the introduction of evidence of a similar “offense … of sexual assault” in a civil trial in which a claim for damages “is predicated on a party’s alleged commission of conduct constituting an offense of sexual assault.” Although McClure was not precise in stating his basis for barring the evidence of Stevens’ alleged incident with Radwanski, Becker found that he had effectively applied a Rule 403 balancing and concluded that its slight probative value was outweighed by other factors, such as the danger of unfair prejudice, confusion of the issues and waste of time. While Becker found that McClure’s ruling was legally sound, he went on to outline the proper procedure for deciding admissibility questions under the new rule. In order for evidence of a past act to be admitted under Rule 415, Becker said, the trial judge must first determine whether the act satisfies the applicable definition of an “offense of sexual assault” provided by Rule 413(d). Although the language of Rule 413(d) is ambiguous as to whether the past “offense of sexual assault” must be a conviction, Becker found that the legislative history of Rules 413-15 “indicates that Congress intended to allow admission not only of prior convictions for sexual offenses, but also of uncharged conduct.” But while uncharged conduct is admissible under Rule 415, Becker found, “some limits, of course, need to be placed on its admissibility in order to ensure that the plaintiff may not parade past the jury a litany of potentially prejudicial similar acts that have been established or connected to the defendant only by unsubstantiated innuendo.” And a trial judge “cannot be expected to conduct a ‘trial within a trial’ to determine the veracity of the proffered evidence,” Becker said. Becker found that the new rules are “silent” on the question of how a trial judge should decide admissibility questions and that the U.S. Supreme Court had never addressed the issue. Nonetheless, Becker found solid guidance in the Supreme Court’s 1988 decision in Huddleston v. United States, which instructs judges to employ Rule104(b) so that “no preliminary finding is required.” Instead, Becker said, Huddleston indicates the trial court “simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact — [whether the defendant committed the prior act] — by a preponderance of the evidence.” Becker found that Huddleston identified Rule 104(b) as appropriate “because the question of the defendant’s commission of the past act ‘was simply one of conditional relevancy — the relevancy of the bad act is conditioned on the defendant’s having committed it.’” Because of the similarity between Rules 404(b) and Rules 413-15 — both allow the admission of past acts, including uncharged conduct, albeit for different purposes — the few courts and commentators that have considered the issue have concluded that Huddleston’s standard for screening uncharged conduct applies to Rules 413-15, Becker said. Although Becker found that reasoning “somewhat problematic,” he also found that he was required to adopt it because the legislative history of the new rules “indicates that Congress intended that the Huddleston standard apply in this context.” In a footnote, Becker commented that “because of the severe social stigma attached to crimes of sexual assault and child molestation, evidence of these past acts poses a higher risk, on the whole, of influencing the jury to punish the defendant for the similar act rather than the charged act than the type of evidence that is often introduced under Rule 404(b).” As a result of the “higher risk of unfair prejudice,” Becker said, “we think the need to guard against the introduction of unsubstantiated evidence is greater, and would be best addressed by requiring the trial court to make a finding by a preponderance of the evidence under Rule 104(a).” But even if a trial court is satisfied that the proffered past act evidence satisfies Rule 104(b), Becker found that it may still exclude it under Federal Rule of Evidence 403. “It appears from the legislative history of Rules 413-15, however, that despite the seemingly absolutist tone of the ‘is admissible’ language, Congress did not intend for the admission of past sexual offense evidence to be mandatory; rather, Congress contemplated that Rule 403 would apply to Rules 413-15,” Becker wrote. While some courts and commentators have concluded that Rule 403 should be applied to Rules 413-15 “with a thumb on the scale in favor of admissibility,” Becker found that the reasoning was “overly simplified.” Instead, Becker found that the presumption of admissibility should apply only when the prior act can be proven with specificity and is similar to the type of sexual assault at issue in the suit. “Where the past act is not substantially similar to the act for which the defendant is being tried, and/or where the past act cannot be demonstrated with sufficient specificity, the propensity inference provided by the past act is weaker, and no presumption in favor of admissibility is warranted,” Becker wrote. And under that test, Becker said, Johnson was properly barred from introducing the alleged incident between Stevens and Radwanski. “It appears to us that the court concluded that Radwanski’s testimony did not satisfy Rule 403, and it accordingly — and appropriately — bypassed the Huddleston reasonable jury determination,” Becker wrote. Becker found that McClure “apparently concluded that the probative value of the evidence was slight and was outweighed by Rule 403′s concerns of prejudice, undue delay, waste of time, etc. This judgment appears to us to be sound given the equivocal nature of Radwanski’s testimony as regarding the intentionality of Stevens’ conduct.” And while McClure didn’t stress it, Becker found that the differences between the two alleged assaults would also justify barring the testimony. The alleged incident with Radwanski occurred in another teacher’s office with that teacher present, while the alleged incidents with Johnson allegedly took place with no one else present in Stevens’ office, and involved a minor, Becker noted. “In our view, these dissimilarities reduced significantly the probative value of Radwanski’s testimony,” Becker wrote. Becker was joined by 3rd Circuit Judges Samuel A. Alito and Maryanne Trump Barry. Johnson was represented by attorney Peter G. Loftus of Waverly, Pa. Attorney Jeffrey H. Quinn of Dickie, McCamey & Chilcote in Philadelphia represented the Elk Lake School District. Stevens was represented by attorneys Robert A. Mazzoni and Julia K. Munley of Mazzoni & Karam in Scranton, Pa.

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