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Dale Johnson v. State of Florida

SC07-368

ALL RISE.
O YE, O YE, O YE.
THE SUPREME COURT OF FLORIDA
IS NOW IN SESSION.
ALL THOSE HAVING BUSINESS
BEFORE THIS COURT, DRAW NIGH,
GIVE ATTENTION, AND YE SHALL
BE HEARD.
GOD SAVE THE UNITED STATES,
THE GREAT STATE OF FLORIDA,
AND THIS HONORABLE COURT.
>> GOOD MORNING.
GOOD MORNING.
>>.
>> LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING, FRIENDS,
AND WELCOME TO THE FLORIDA
SUPREME COURT AND THE ORAL
ARGUMENT CALENDAR FOR
THURSDAY, DECEMBER 6th.
JUSTICE QUINCE WILL NOT BE
SITTING ON THE PANEL THIS
MORNING BUT WILL PARTICIPATE
IN THE CASE, AND WILL REVIEW
THE TAPE OF THE ORAL
ARGUMENTS, THE FULL TAPE
THAT ON OUR GAVEL TO GAVEL.
SHE HAD SOME REACTION TO
MEDICATION.
SHE'S FINE BUT SHE'S RESTING
TODAY SO SHE SENDS HER
REGARDS TO ALL THE
PARTICIPANTS.
SO OUR FIRST CASE IS ROEBUCK
v. STATE OF FLORIDA.
>> MAY IT PLEASE THE COURT.
MY NAME IS MICHAEL LUFRMAN
AND I REPRESENT THE PETITIONER
VINCENT ROEBUCK I WOULD LIKE
TO RESERVE FIVE MINUTES OF
MY TIME FOR REBUTTAL.
THE ISSUE IS WHETHER THE
TRIAL COURT PREVENTED
MR. ROEBUCK FOR IMPEACHING
THE FOR PRIOR FALSE
CRIMMINAL ACCUSATION.
THE SECOND ZRIKT HAS HELD A
CRIMINAL DEFENDANT HAS A
RIGHT TO IMPEACH A WITNESS
IF A WITNESS HAS MADE A
PRIOR FALSE ACCUSATION.
>> DOES IT SEEM THE SECOND
DISTRICT IN THEIR READ SNG
CONTRARY TO THE FLOW OF THE
RULES OF EVIDENCE AND THE
COMMENTATORS ON THE RULES OF
EVIDENCE REALLY PRETTY MUCH
THE THEORY OF EVIDENCE THAT
YOU DON'T USE JUST THIS ONE
EVENT TO IMPEACH FOLKS?
I MEAN, IT'S SORT OF A
STANDARD UNDERLYING
PRINCIPLE THAT WE DEAL WITH.
>> A COUPLE ANSWERS TO THAT,
YOUR HONOR, FIRST, I THINK
IF YOU LOOK AT THE STATES
NATIONWIDE, MOST STATES
RECOGNIZE A PRIOR FALSE
CRIMINAL ACCUSATION.
I THINK THAT'S OUTLINED IN
THE NEW JERSEY SUPREME COURT
BUT IN PARTICULAR REGARDING
THE FLORIDA EVIDENCE CODE
THE SECOND DISTRICT COURT
RULED IN JAGERS, INVOLVE
ADWILLIAMS RULE WITNESS ALSO
A CHILD WHO HAD MADE A PRIOR
FALSE ACCUSATION OF SEXUAL
ABUSE AND THE BROAD GENERAL
THAT THE CREDIBILITY OF A
WITNESS MAY NOT BE ITCH
PEACHED BY PROOF.
>> WAS THIS, WAS THIS
INTRODUCED AS WILLIAMS RULE?
>> IN, THE JAGGERS CASE OR
MR. ROEBUCK'S CASE?
>> IN ROEBUCK SFLOOS NO.
NO.
NO.
IN THE JAGGER CASE, THE
STATE WAS ATTEMPT TO OFFER
WILLIAMS AS A WITNESS ABOUT
PRIOR SEXUAL MISCONDUCT IN
MR. ROEBUCK IT WAS CASE IT
WAS MR. ROEBUCK ATTEMPTING
TO IMPEACH WITH A PRIOR
FALSE.
>> TAKE THE NEW JERSEY
GOOUNGER CASE THAT'S IN
ESSENCE WILLIAM'S RULE TYPE
CASE.
IT HAS TO BE SUFFICIENTLY
SIMILAR, DO YOUGRY.
>> YES.
>> IS THAT EVEN PRESENT
HERE.
>> WELL, I MEAN, BACK UP.
I SAID YES.
I THINK THE NEW JERSEY
SUPREME COURT CASE LISTED A
NUMBER OF FACTARDS THAT
COULD BE CONSIDERED.
ONE OF THEM IS WHETHER THE
SIMILARITY OF THE PRIOR
FALSE CRIMINAL ACCUSATION TO
HAVE CRIME CHARGED.
THERE WAS FOUR OTHER FACTORS
THAT THE NEW JERSEY SUPREME
COURT IN GUENTHER RELIED
UPON WHETHER WILLIAMS IS THE
CENTRAL ISSUE.
FIRST IT IS HERE.
PROXIMITY OF THE PRIOR FALSE
ACCUSATION THAT IS THE BASIS
OF THE CRIME CHARGE I THINK
WE HAVE THAT HERE.
PROBABLY FIVE
YEARS-DIFFERENCE BETWEEN THE
CRIME CHARGED AND THE
PREVIOUS PRIOR FALSE
ACCUSATION.
>> HERE YOU HAVE THE PRIOR
EVENT BEING A FOURTH GRADE
-- WHEN SHE WAS IN THE
FOURTH GRADE.
>> YES.
>> SHE GOT BURNED IN THE
FACE.
GOT GRILLED BY SOME TEACHERS
AND WHATEVER AND EVENTUALLY
ENDED UP SAYING IT WAS HER
BROTHER WHO DID IT.
>> YES.
>> IT WASN'T SEXUALLY
RELATED.
>> BUT IT WAS A BATTERY.
IT WAS, IT WAS, SHE
ACCIDENTALLY BURNED HERSELF
WITH AN IRON.
SHE WENT TO SCHOOL, AND
NURSE AND HER MOTHER ASKED
HER ABOUT THE BURN AND SHE
SAID THAT IT WAS HER BROTHER
WHO DID T. SHE ACKNOWLEDGED
IT AT THE TIME SHE WAS UPSET
AT HER BROTHER.
HER BROTHER WAS MAD AT HER
AND THEREFORE SHE BLAMED IT
ON HER BROTHER.
AS A RESULT OF THE
ACCUSATION.
>> SO LET'S SAY SHE WAS IN
SCHOOL IN THE FIFTH GRADE
AND GOT IN A FIGHT AND
FALSELY ACCUSED SOMEBODY
ELSE FOR CAUSING THE FIGHT
WHERE SHE CAUSED IT AND
SOMEBODY ELSE.
UNDER YOUR THEORY, THAT ALSO
WOULD BE ADMISSIBLE AS PRIOR
FALSE ACCUSATION?
>> I THINK, AGAIN, UNDER THE
APPROACH FROM THE NEW JERSEY
SUPREME COURT YOU HAVE TO
LOOK AT EACH CASE AND LOOK
AT WHETHER OR NOT THE TWO
DIFFERENT ACCUSATIONERIZE
SIMILAR, AND THAT'S ONE
FACTOR TO BE CONSIDERED.
I WOULD SUBMIT, IN THE
SITUATION LIKE THIS WHEN
AGAIN IT SEEMS SHE WAS 14 AT
THE ALLEGELES TIME IN FOURTH
GRADE AT THE PREVIOUS.
THAT'S A FIVE-YEAR
DIFFERENCE.
THAT'S PRETTY CLOSE IN TIME
--
>> BUT I GUESS THIS IS THE
QUESTION.
YOU'RE ASKING US TO ADOPT
UNDER 610, WHICH IS PART OF
THE EVIDENCE CODE, WHICH IS
A STATUTE, AN EXCEPTION THAT
DOESN'T APPEAR THERE, AND I
GUESS I'M CONCERNED ABOUT
WHETHER THIS IS A 610 ARE WE
TALKING ABOUT?
MAYBE IT WAS 610.
WHETHER IN JAGGERS AND THE
CLIBURN, WHETHER THEY REALLY
WERE LOOKING TO OTHER
SECTIONS OF THE EVIDENCE
CODE.
SO LET'S FIRST TALK ABOUT
WHETHER UNDER 610, THAT
DEALS WITH PRIOR
CONVICTIONS.
>> YES, YOUR HONOR.
>> SO THE IDEA THAT THIS
COURT COULD TAKE SOMETHING
THAT DOESN'T EXIST IN THE
EVIDENCE CODE AND CARVE OUT
AN EXCEPTION ISN'T THIS AN
ISSUE OF STATUTORY
CONSTRUCTION AND THIS WOULD
NOT BE THE SECTION WE SHOULD
BE GOING UNDER.
>> COUPLE DIFFERENT ANSWERS
TO THAT.
FIRST LET ME POINT OUT IN
JAGGERS THE SECOND DISTRICT
DEFEND DEPENDED ON.
WHEN A CHARACTER OR TRAIT OF
CHARACTER OF A PERSON IS AN
ESSENTIAL OF A CHARGE, CLAIM,
OR DEFENSE, PROOF MAY BE
MADE OF SPECIFIC INSTANCES
OF THAT CONDUCT.
>> IN JAGGERS --
>> THEY COULD USE THAT, DO
YOU REALLY THINK THAT THAT'S,
THAT A WITNESS'S CREDIBILITY
IS AN ESSENTIAL ELEMENT OF A,
OF, OF A CRIME OR A DEFENSE?
>> OR A DEFENSE.
NOW, IN THIS CAR,, AGAIN,
IT'S A HE-SAID, SHE-SAID
CASE.
NO PHYSICAL WHATSOEVER.
MR. ROEBUCK'S ENTIRE DEFENSE
WAS THE ALLEGED VICTIM WAS
NOT CREDIBLE.
IN ORDER FOR THE STATE TO
PROVE THEIR CASE THEY HAD TO
CONVINCE THE JURY THAT THE
ALLEGED VICTIM WAS CREDIBLE
IN ORDER FOR MR. ROEBUCK TO
COME BACK AND CONVINCE THE
JURY, HEED TO CONVINCE THE
JURY --
>> SO YOU WOULD INSTEAD OF
SAYING THERE IS A FALSE
CONFESSION ACCUSATION
EXCEPTION TO 610, YOU WOULD
TRAVEL UNDER 4052?
>> I THINK THAT'S CERTAINLY
ONE WAY TO LOOK AT T.
ANOTHER WAY --
>> AND I'M GOING TO ASK THE
STATE THIS.
MY CONCERN -- MY INTEREST IS
THIS, IS THAT WE ALLOW UNDER
CERTAIN SECTIONS OF THE
EVIDENCE CODE REPUTATION FOR
BEING UNDER UN TRUTHFUL.
AND IT SEEMS A LITTLE WEIRD
THAT YOU SORT OF SAY YOU
COULD BRING IN GENERAL
CHARACTER EVIDENCE BUT YOU
COULDN'T BRING IN IF THE
PERSON HAD CONTINUALLY
FALSELY ACCUSED PEOPLE OF
CRIMES.
SO WHAT SECTION DOES THAT,
WHAT SECTION OF THE EVIDENCE
CODE WOULD, IS THE, WHERE
YOU CAN PUT IT, BRING IN
CHARACTER --
>> 609.
609 WOULD BE REPUTATION FOR
UNTRUTHFULNESS.
>> AND DID THEY TRUE TO --
TRY TO GET IT --
>> WHAT SECTION DID THEY TRY
TO GET IT IN UNDER?
>> I, I THINK GENERALLY
SPEAKING THE THE DEFENSE
COUNSEL BELOW ARGUED THIS
WAS REL VOONT TO IMPEACH THE
ALLEGED VICTIM'S
CREDIBILITY.
I DON'T KNOW IF THEY WENT TO
THE SPECIFIC SECTION OF THE
EVIDENCE CODE THEY WERE
RELYING ON.
>> WHICH SECTION DID YOU
RELY ON IN THE DCA.
>> AGAIN, MANY WAY AS COURT
CAN REACH THE CONCLUSION
THAT A PRIOR FALSE CRIMINAL
ACCUSATION IS ADMISSIBLE.
THE VERY GOOD POINT THAT I
THINK THE NEW JERSEY SUPREME
COURT MADE IN THE OPINION IS
THAT IF YOU LOOK AT 609, YES,
IT ALLOWS A WITNESS TO BE
IMPEACHED WITH THE EVIDENCE
THAT THE WITNESS HAS A
REPUTATION FOR LYING.
IF YOU LOOK AT 610 IT ALLOWS
A WITNESS TO BE IMPEACHED
WITH CRIMINAL CONVICTION.
>> WHY DIDN'T THE FIRST DCA
TALK ABOUT THE OTHER
PROVISIONS.
THEY TALKED ABOUT 610.
THAT SEEMS LIKE IT WAS THE
ONLY ONE ARGUED TO THEM.
>> THAT'S NOT TRUE.
THE SAME ARGUMENT I AM
MAKING TO YOU IS THE SAME I
MADE TO FIRST DCA.
>> WHY DID THEY RESTRICT
THEIR ANALYSIS ON 610.
>> I CAN'T TELL.
I CERTAINLY KIDDANT ARGUE
THIS WAS AN EXCEPTION JUST
TO 610.
I ARGUED THIS IS SOMETHING
THAD SHOULD COME IN FOR MANY
OTHER REASONS AND ANOTHER
ISSUE IS WHETHER OR NOT HE
HAS A CONSTITUTIONAL RIGHT
TO BRING THIS IN.
>> FOR PURPOSES OF
IDENTIFICATION DOESN'T THE
COUNSEL HAVE TO IDENTIFY A
SPECIFIC PROVISION UNDER
WHICH THIS EVIDENCE WOULD BE
ADMISSIBLE.
>> I THINK, AGAIN, AS FAR AS
PRESERVATION IS CONCERNED,
DEFENSE COUNSEL REPEATEDLY
SAID HE WANTED TO INTRODUCE
THIS EVIDENCE TO IMPEACH THE
ALLEGED VICTIM'S CREDIBILITY
AND THE COURT ON PAGE 164 OF
THE RECORD SPECIFICALLY
STATES, I JUST WANT TO STATE
FOR THE RECORD THAT YOU HAVE
PRESERVED THAT ISSUE FOR
APPEAL, AND I'M DIRECTING
YOU NOT TO ASK ANY QUESTIONS
ABOUT T. SO AGAIN I SUBMIT
THAT THE QLOUSH IS
PRESERVED.
IT'S CLEAR THAT THE CLAIM
THAT WAS BEING PRESENTED WAS
THIS, THIS ALLEGED VICTIM
SHOULD BE ABLE TO BE
IMPEACHED WITH THE PRIOR
FALSE CRIMINAL ACCUSATION.
>> -- RELEVANT.
IF WE JUST TAKE -- WHETHER
IT'S RELEVANT I SEE A PRETTY
BIG DIFFERENCE IN JAGGERS,
WHERE YOU'VE GOT, WHERE
JUSTICE BELL WAS GOING ON I
THINK, TOO, YOU'VE GOT
EVIDENCE THAT THIS VICTIM
ACCUSED THE SAME DEFENDANT
FALSELY BEFORE.
TO ME THAT IS -- FAR AWAY
THAT, AS YOU CAN GET FROM
SAYING WHEN SOMEBODY WAS IN
FOURTH GRADE FOR A WHOLE
DIFFERENT REASON AFTER, THEY
FALSELY ACCUSED THEIR
BROTHER OF SOMETHING.
SO CAN'T, EVEN IF IT'S
BEGINS TO LOOK LIKE IT COULD
BE RELEVANT UNDER SOME
SECTIONS, WOULDN'T THE ISSUE
OF 404, YOU KNOW, WHERE
PREJUDICE IS -- LIKELIHOOD
OF CONFUSING THE ISSUE.
COME INTO PLAY TO SAY THIS
REALLY IS COLLATERAL, THIS
IS NOT DIRECT.
THIS IS NOT THE, YOU KNOW,
THE SAME DEFENDANT, AND IT
IS REMOTE IN TIME.
>> I THINK IT'S RARE THAT
YOU'RE EVER GOING TO HAVE
THE ALLEGATION REGARDING THE
SAME DEFENDANT.
I THINK MOST OF THE CASES,
CERTAINLY THE CLIBURN CASE
AND, AND MOST OF THE OTHER
CASES AROUND THE COUNTRY ARE
GOING TO INVOLVE PRIOR FALSE
CRIMINAL ACCUSATIONS AGAINST
SOMEONE ELSE.
NOW, WHETHER OR NOT THE
CRIMP IS SIMILAR, I AGREE
THE FACT THAT NEEDS TO BE
CONSIDERED BUT IT'S ONLY ONE
FACTOR TO BE CONSIDERED AND
AGAIN I SUBMIT THE CRIMES
ARE SIMILAR IN NATURE IN
THIS CASE.
WE HAVE A BATTERY FROM
BEFORE AND WE HAVE A TYPE OF
BATTERY IN THIS CASE.
IT'S, IT'S A SEXUAL BATTERY
BUT AGAINATES BAT RAE.
>> DOES IT MAKE ANY
DIFFERENCE WHETHER THE
ACCUSATION IS DIRECTLY TO
LAW ENFORCEMENT OFFICERS OR,
OR NOT?
>> MY ARGUMENT, IN A CASE
INVOLVING A CHILD, I WOULD
SUBMIT THAT A TEST SHOULD BE
WHETHER OR NOT THE
ACCUSATION IS MADE TO A
POSITION IN A, A PERSON IN
POSITION OF AUTHORITY.
A LOT OF TIMES IN CHILD
CASES, YOU'RE NOT GOING TO
HAVE ALLEGATIONS MADE BY THE
CHILD TO A POLICE OFFICER.
BUT THEY MADE BE MADE TO A
CHILD PROTECTION TEAM MADE
OR A SCHOOL NURSE LIKE IN
THIS CASE.
>> WOULD YOU COME BACK TO
JUSTICE PARIENTE'S QUESTION,
WITH REFERENCE TO THE
EVIDENCE CODE AND IT APPEARS
TO ME THAT IN DEVELOPING THE
EVIDENCE CODE THAT THE
AUTHORS OF THAT, AND OF
COURSE, THIS COURT AND THE
LEGISLATURE IN ADOPTING, YOU
KNOW, THAT CODE, HAVE REALLY
EMBRACED, YOU KNOW, THE, THE,
THE PURPOSE OF THE AUTHORS.
HAVE ALREADY MADE A
JUDGMENT.
IN THIS AREA.
AND THE JUDGMENT DOES NOT
INCLUDE THE IMPEACHMENT THAT
YOU ARE TRYING TO GET IN
HERE.
AND THAT'S WHAT I'M
CONCERNED ABOUT BECAUSE IN
FOR INSTANCE THE REPUTATION
FOR UNTRUTHFULNESS, WHATEVER,
THEY'VE MADE A JUDGMENT
THERE THAT WHEN THE CONDUCT
OF THE WITNESS RISES TO THIS
LEVEL WHERE ACTUALLY PEOPLE
AROUND THEM DON'T TRUST THEM,
AND THEY WOULD TESTIFY, NOW
THIS PERSON, IS NOT
TRUSTWORTHY AND SHE HAS A
REPUTATION FOR THAT.
SHE'S, SHE'S, SHE'S LIED
ENOUGH IN, YOU KNOW, THAT
NOW AMONGST THE PEOPLE THAT
KNOW HER THAT SHE HAS THAT
REPUTATION, THEY'VE MADE
THAT JUDGMENT ABOUT THAT.
WITH REFERENCE TO ACTS OF
MISCONDUCT, THEY'VE MADE A
JUDGMENT, WELL, WHEN THAT'S
CREDIBLE ENOUGH THAT
SOMEBODY'S ACTUALLY BEEN
CONVICT OIFD MISCONDUCT,
THEN -- CONVICTED OF
MISCONDUCT THEN YOU CAN
BRING THAT IN IN THIS WAY.
SO SO, BUT THEIR JUDGMENT
HAS NOT INCLUDED THE, THESE
SPECIFIC ACTS THAT YOU'RE --
SO I AM CONCERNED THAT THAT
THAT JUDGMENT HAVING BEEN
MADE AND THIS COURT AND THE
LEGISLATURE HAVING EMBRACED
THAT, THAT WE BE VERY
CAREFUL, YOU KNOW, NOT TO GO
OUTSIDE THAT.
SO HELP, HELP ME WITH, THAT
THIS WOULD BE, THIS WOULD
REALLY BE A HUGE ADDITION OR
EXCEPTION TO THOSE ORDINARY
RULES.
HELP ME -- I DIDN'T REALLY,
I DIDN'T FEEL LIKE YOU
PROPERLY RESPONDED TO THAT
QUESTION.
>> THANK YOU, YOUR HONOR.
>> MAYBE IT WAS A DIFFERENT
QUESTION.
>> THANK YOU, YOUR HONOR.
IT'S TRUE THAT, THAT FEDERAL
RULE OF EVIDENCE 608 B DOES
-- WOULD ALLOW THIS TYPE OF
EVIDENCE AND WHEN THE CODE
WAS ADOPTED BY THE
LEGISLATURE, THE FLORIDA
LEGISLATURE DID NOT ADOPT
THAT PROVISION OF THE
FEDERAL EVIDENCE CODE.
PROFESSOR ERHEART HEART
STATES THEY DIDN'T DO SO --
EHRHARDT STATES THEY DIDN'T
DO THAT BECAUSE THEY THOUGHT
THERE WAS A POSSIBILITY FOR
ABUSE OF THIS TYPE OF
EVIDENCE.
BUT AGAIN THAT'S GENERAL
EVIDENCE OF MISCONDUCT NOT
SPECIFICALLY THEY DIDN'T
CONSIDER THE SPECIFIC
INCIDENT OF A PRIOR
ACCUSATION.
I SUBMIT WE ARE TALKING
ABOUT VERY FEW CASES WHERE
YOU ARE GOING TO HAVE
SOMEONE WHO'S ABLE TO
ESTABLISH THAT A WITNESS HAS
FALSELY ACCUSED SOMEONE OF A
CRIME.
IN THIS CASE, THERE'S NO
QUESTION.
SHE ACKNOWLEDGED DURING THE
PROFFER THAT SHE DID IN FACT
FALSELY ACCUSE HER BROTHER.
IT'S GOING TO BE RARE WHERE
YOU ARE GOING TO BE ABLE TO
ESTABLISH THAT SO THIS IS A
VERY NARROW EXCEPTION TO THE
GENERAL RULE THAT ACTS OF
MISCONDUCTINATE BE USED TO
IMPEACH A WINS.
>> BUT ASSUMING THAT IT'S
TRUE, SHOULDN'T THERE BE
SOME KIND OF 404 B TYPE
URNALSIS THAT'S GOT TO BE
SUFFICIENTLY SIMILAR --
ANALYSIS THAT'S GOT TO BE
SUFFICIENTLY SIMILAR SO THAT
THE RELEVANCY OF THAT ACT
THAT OTHER LIE IS NOT
OUTWEIGHED BY THE PREJUDICE
OF INTRODUCING THAT KIND OF
EVIDENCE?
>> CERTAINLYIAL RR --
CERTAINLY I'LL ACKNOWLEDGE
THE OTHER STATES THAT HAVE
ADOPTED THIS TYPE OF
EXCEPTION SAY THERE MUST BE
ANALOGOUSSIS AT LEAST ONE OF
THE FACTORS TO DETERMINE
WHETHER OR NOT THE PREVIOUS
FALSE ACCUSATION IS SIMILAR
TO THE CURRENT FALSE
ACCUSATION.
I WOULD SUBMIT THAT BURNING
SOMEONE WITH AN IRON IS VERY
SIMILAR TO THIS SIMILAR
ALLEGATION OF SEXUAL BATTERY
OR LEWD AND LUSIEVIOUS
BATTERY IN THIS CASE.
I SUBMIT THAT FORLET
REASONS.
>> THAT'S NOT A SEXUAL
BATTERY.
>> BUT IT'S A BATTERY.
>> AGAINST THE SAME PERSON.
>> IT'S CERTAINLY A CRIME OF
VIOLENCE AGAINST A PERSON.
AND IF AN ALLEGED VICTIM HAS
THE TENDENCY TO FALSELY
ACCUSE OTHERS IN THE PAST OF
THIS TYPE OF INCIDENT --
>> LET'S ANALYZE IT THIS
WAY.
LET'S SAY THAT THE DEFENDANT
WAS ACCUSED OF SEXING WITH
BATTERY, COULD THE -- SEXUAL
BATTERY, COULD THE STATE
INTRODUCE EVIDENCE THAT THE
DEFENDANT HAD PREVIOUSLY
BURNED SOMEBODY WITH AN IRON
AS PRIOR BAD ACT EVIDENCE,
404 B EVIDENCE.
>> CONSTITUTION IS GOING TO
COME INTO PLAY.
AND MY RIGHT HAS THE RIGHT
TO DO ANYTHING TO DEFEND
THIS ACCUSATION.
>> BUT WE ALLOW 404,
WILLIAMS RULE SNEFDS BUT
AGAIN A VERY STRICT STANDARD
IS GOING TO APPLY WHEN YOU
USE THAT TYPE OF EVIDENCE
AGAINST A CRIMINAL
DEFENDANT.
I DON'T THINK THE SAME
STRICT STANDARD WOULD APPLY
WHEN A CRIMINAL DEFENDANT IS
EXERCISING HIS RIGHT TO
CONFRONT A WITNESS OR
CROSS-EXAMINE A WITNESS HE
HAS A DREW PROCESS RIGHT TO
PRESENT TO THE JURY WHETHER
OR NOT THIS DEFENDANT WAS
CREDIBLE.
THAT'S HIS ENTIRE DEFENSE.
THERE IS NO PHYSICAL
EVIDENCE.
THERE IS NO OTHER WAY OTHER
THAN TO ATTACK HER
CREDIBILITY.
IT IS DEE TO HER
CREDIBILITY.
AGAIN, LET ME QUICKLY
ADDRESS WHAT THE NEW JERSEY
SUPREME COURT SAID.
THEY RECOGNIZED THAT YOU CAN
IMPEACH SOMEONE WITH
REPUTATION FOR LYING.
THEY RECOGNIZED THAT YOU CAN
IMPEACH SOMEONE WITH A PRIOR
CONVICTION AND THEY WENT ON
TO SAY THAT THE FACT THAT A
WITNESS UTTERED A PRIOR
FALSE ACCUSATION MAY BE NO
LESS RELEVANT OR POWERFUL AS
IMPEACHMENT TOOL THAN
TESTIMONY THAT THE WITNESS
HAS A REPUTATION FOR LYING.
CERTAINLY --
>> IT DOES SEEM TO ME, I
JUST LOOKED AT ALL THE
DIFFERENT SECTIONS THAT
WE'VE GOT THIS COMPREHENSIVE
CODE AND IT, YOU CAN'T GET
UNDER A PARTICULAR SECTION
UNLESS WE REWRITE THE CODE.
>> BUT, AGAIN, I THINK WHAT
THE, THERE'S A COUPLE
DIFFERENT WAYS TO DO THAT.
YOU COULD RECOGNIZE THAT
UNDER 4052 CHBLTH.
YOU COULD RECOGNIZE IT AS,
WHAT THE NEW JERSEY SUPREME
COURT DID.
AND THEY SAID THAT THEY WERE
NOT CREATING THE NEW RULE.
THEY WERE MERELY CARVING OUT
AN EXCEPTION TO THE RULES OF
EVIDENCE FOR THE PURPOSES OF
PERMITTING THE JURY TO
CONSIDER RELEVANT EVIDENCE
AND CLEARLY DEFINED
CIRCUMSTANCES THAT MAYIC
AFFECT THE JURY'S ESTIMATION
OF THE CREDIBILITY OF THE
STATE'S KEY WITNESS.
AND THEN I THINK YOU ALSO
HAVE TO CONSIDER THE, THANK
YOU, YOUR HONOR, YOU HAVE TO
CONSIDER MY CLIENT'S
CONSTITUTIONAL RIGHTS.
OF COURSE, STATE RULES OF
EVIDENCE MUST YIELD TO MY
CLIENT'S CONSTITUTIONAL
RIGHT TO PRESENT A DEFENSE
AND TO BE ABLE TO
EFFECTIVELY CROSS-EXAMINE
AND CONFRONT THULEDGED
VICTIM.
>> SO ARE YOU SAYING RULE
403 IS THEN UNCONSTITUTIONAL
AS APPLIED TO A DEFENDANT
TRYING TO ADMIT EVIDENCE?
>> I SUBMIT THAT IN A
SITUATION WHERE YOU CAN
ESTABLISH THAT THE ALLEGED
VICTIM HAS MADE A PRIOR
FALSE CRIMINAL ACCUSATION,
AND THAT'S, THAT'S NOT IN
DISPUTE THEN THE DEFENDANT
DOES HAVE A RIGHT TO IMPEACH
THE ALLEGED VICTIM WITH THAT
PRIOR FALSE ACCUSATION.
>> YOU MADE THE MORE GENERAL
STATEMENT THAT A DEFENDANT
IS ENTITLED TO PRESENT ALL
THIS EVIDENCE IN, IN HIS
DEFENSE, IT'S A
CONSTITUTIONAL RIGHT AND SO
WOULD THAT RENDER RULE 403
UNCONSTITUTIONAL TO THE
EXTENT THAT IT WOULD EVER
PREVENT A DEFENDANT FROM
INTRODUCING RELEVANT
EVIDENCE?
>> NO, I AGREE THAT THERE IS
A WEIGHING TEST THAT MUST BE
CONDUCTING, A BALANCING
TEST.
BUT IF, AND THERE MUST BE
SOME CONSIDERATION AS TO
THIS PARTICULAR PRIOR FALSE
ACCUSATION.
BUT WHEN YOU HAVE A PRIOR
FALSE ACCUSATION AND THE
FACTORS THAT THE NEW JERSEY
SUPREME COURT RESIDE --
RELIED UPON, NUMBER ONE, THE
ALLEGED VICTIM'S TESTIMONY
IS THE ONLY TESTIMONY THET
STATE IS RELYING UPON.
THE PRIOR FALSE ACCUSATION
IS NEAR IN TIME TO THE
ACCUSATION IN THIS CASE.
IF IT'S A SIMILAR TYPE
OFFENSE, I, I ACKNOWLEDGE
THAT THERE COULD BE A
SCENARIO WHERE PERHAPS THE
PRIOR FALSE ACCUSATION
INVOLVE ADWORTHLESS CHECK
AND THIS PARTICULAR CRIME
INVOLVES A CRIME OF VIOLENCE
OR A BATTERY THEN MAYBE THE
COURT WOULD SAY THAT IS NOT
RELEVANT UNDER 403 AND WE
ARE NOT GOING TO ALLOW YOU
TO INTRODUCE THAT BUT WE
DON'T HAVE THAT WE HAVE
SIMILAR CRIMES AND IN THE
CLIBURN CASE THE SECOND
DISTRICT DEALT WITH CRIMES
THAT WERE SIMILAR.
THE CRIME AT ISSUE WAS
BURGLARY AND THE COURT SAID
THAT'S SIMILAR ENOUGH TO
ALLOW THE, THE DEFENDANT TO
BE ABLE TO CROSS-EXAMINE THE
ALLEGED VICTIM REGARDING
THAT PRIOR FALSE ACCUSATION.
>> I RESERVE THE REST OF MY
TIME FOR REBUTTAL.
THANK YOU.
>> GOOD MORNING.
MAY IT PLEASE THE COURT.
JISELL LYLEN RIVERA FOR THE
STATE OF FLORIDA.
>> WOULD YOU DO US A FAVOR,
OR AT LEAST ME, THE PRIOR OF
THE PRIOR ACT, WAS IT
UNCONTESTED THAT IT WAS
FALSE?
>> YES.
>> IN OTHER WORDS, SHE ENDS
UP ACCUSING HER BROTHER
FALSELY AND HE ENDS UP IN A
JUVENILE FACILITY FOR SIX
MONTHS AND THERE WAS NO
OTHER EVIDENCE THAT IT
REALLY WAS HIM THAT DID IT
OTHER THAN HER FALSE
ACCUSATION?
>> IF I MAY, I'D LIKE TO
CORRECT YOUR ASSESSMENT OF
THE FACTS JUST SLIGHTLY.
FIRST OF ALL, SHE WAS PRETTY
MUCH BROWBEATEN INTO MAKING
THIS ACCUSATION AGAINST HER
BROTHER.
>> HOW DO WE KNOW THAT?
>> BECAUSE THE, BECAUSE OF
THE PROFFER UNDER OATH.
SHE TESTIFIED THAT SHE WENT
TO SCHOOL WITH A SCAR MARK
ON HER FACE, THAT SHE WAS
CALLED DOWN BY THE SCHOOL
NURSE WHO CALLED HER BROTHER,
AND THE -- MOTHER, AND THE
TWO OF THEM PROCEEDED TO
QUESTION HER FOR THREE
HOURS.
DURING THE COURSE OF THAT
TIME SHE TOLD THEM EXACTLY
WHAT HAPPENED, SHE TOLD THEM
THE TRUTH AND THEY
REPEATEDLY TOLD HER OVER THE
COURSE OF THE THREE-HOUR
PERIOD THAT THEY DID NOT
BELIEVE WHAT SHE WAS SAYING
AND THAT AFTER THE END OF
THIS, SHE BASICALLY, QUOTE
UNQUOTE, LET HER BROTHER
TAKE THE FALL FOR IT.
AS FOR WHETHER OR NOT HE
WENT TO A JUVENILE FACILITY,
NOW READ THE PROFFER
CAREFULLY, IT SHOWS SHY,
THREE DAYS LATER HER BROTHER
JUST DISAPPEARED AND SHE
ASKED HER MOTHER WHAT
HAPPENED AND SHE THOUGHT
THAT HER MOTHER TOLD HER
THAT SHE -- HE WENT TO A
JUVENILE FACILITY BUT THE
CHILD NEVER TESTIFIED
AGAINST THE BROTHER.
THERE WAS NEVER ANY KIND OF
LEGAL PROCEEDING --
>> WITNESS AGAINST THIS
DEFENDANT?
>> EXCUSE ME?
>> WAS SHE THE SOLE WINCE
AGAINST THIS DEFENDANT.
>> YES, SHE WAS, IT WAS A
SEXUAL BATTERY.
>> AND HER DEFENSE WAS SHE
HAD A MOTE TO HAVE LIE.
SHE WANTED TO REMAIN IN THE
COUNTRY.
-- MOTIVE TO LIE.
>> THAT WAS THE MOTIVE THAT
WAS ASSERTED, YES.
>> NOW LET'S GO TO, I DON'T
THINK YOU CAN GET TO AN
EXCEPTION UNDER 610 BECAUSE
IT'S PRETTY CLEAR.
BUT WHY DOESN'T IT COME IN
UNDER GENERAL CHARACTER
EVIDENCE OR AT LEAST BE
CONSIDERED UNDER THAT?
THIS CASE MAY NOT BE WHERE
IT GOES, BUT IT SEEMS TO ME
THAT THE STATE WAS CONCEDING
THAT IN THE OTHER CASES,
JAEGERS AND -- JAGGERS AND
CLIBURN OR AT LEAST ONE OF
THEM IT SHOULD COME IN OR IS
THE STATE'S POSITION THAT
ALL THOSE OTHER CASES FROM
THE SECOND DISTRICT ARE
WRONG?
>> THE STATE'S POSITION IS
THAT YOU WERE WRONGLY
DECIDED AND THEY ARE
DISTINGUISHABLE ON THEIR
FACTS.
>> WELL IT'S MORE IMPORTANT
-- LET'S TAKE ONE THAT WOULD
BE A REAL MISCHARACTER OF --
MISCARRIAGE OF JUST ASPRIOR
MISACCUSATION AGAINST THE
SAME DEFENDANT FOR SEXUAL
ASSAULT.
IT'S THE STATE'S POSITION
THAT THERE'S NO, AND, THERE
IS NO PROVISION OF THE
EVIDENCE CODE THAT WOULD
ALLOW THAT EVIDENCE TO, AS
IMPEACH SNMENT.
>> REVERSE WILLIAMS RULE
EVIDENCE, JUSTICE.
>> NOW HOW IS IT, OKAY, SO
REVERSE THAT'S UNDER 404 TO
A&IT WOULD BE, TELL ME WHAT
IS, IT GOES TO?
>> COLLATERAL BAD ACT, AND
--
>> TO PROVE BUT WHAT'S THE
-- TO PROVE WHAT?
THAT THE PERSON IS LIEING?
>> WELL, I THINK IT'S
ACTUALLY MORE TO PROVE THAT
IDENTITY.
CONSISTENT PATTERN, THINGS
LIKE THAT.
AND WHEN YOU LOOK AT WHAT --
>> CONSISTENT PATTERN OF
LIEING?
>> RIGHT.
IT'S REPUTATION ESSENTIALLY.
>> WELL THEN --
>> BUT THAT'S WHAT MR. LUFRMAN
IS ARGUING HERE IS THAT --
>> IT CAN'T BE A CHARACTER
TRAIT OR PATTERN WHEN IT'S
ONE INSTANCE.
THROUGHOUT THE CODE -OF THEM
ARE SAYING YOU CAN'T HAVE A
CONSISTENT ACT TO PROVE
CONFORMITY ON A SUBSEQUENT
OCCASION.
WHEN WE LOOK AT 405 WHICH IS
WHAT I BELIEVE HE'S ARGUING
UNDER TODAY, EVEN THOUGH
THROUGHOUT I THINK WHEN WE
LOOK AT THE HISTORY OF THIS
CASE, IT'S ALWAYS BEEN 610
AND WHICH IS WHY THE FIRST
DISTRICT RELIED ON 610,
FIRST DISTRICT DID NOT RELY
ON ANYTHING ELSE BECAUSE THE
ARGUMENT HAS CHANGED
THROUGHOUT --
>> ARE YOU SAYING THAT, THAT
THE, WHAT THE OTHER SECTIONS
WERE NOT RAISED IN HIS BRIEF
TO THE FIRST DISTRICT?
>> I THINK THEY MIGHT'VE
BEEN COLLATERALLY BUT IN THE
TRIAL COURT --
>> LET ME --
>> IN THE TRIAL COURT LEVEL
TREALLY WAS 610.
THEY WERE, THAT EVERYONE WAS
RELYING ON.
>> LET ME ASK, IS, THE,
WHAT'S THE STATE'S POSITION
ON WHETHER THIS STATEMENT,
FOR GETTING 610 AND FOR THE
TIME BEING AND 608, 609, IS
THIS STATEMENT RELEVANT?
>> NO, IT'S NOT.
>> OKAY.
WHY IS IT NOT RELEVANT.
>> BECAUSE IT FAILS IN TWO
SPECIFIC AREAS.
OKAY?
FIRST OF ALL, RELEVANT
EVIDENCE WE KNOW CAN BE
ADMITTED.
HOWEVER, IT HAS TO BE
SIMILAR ENOUGH.
IT HAS TO SHOW SIMILARITY OF
ACTION.
IT HAS TO BE RELIABLE.
HERE WE HAVE A STATEMENT
THAT IS NOT RELIABLE BECAUSE
IT WAS ESSENTIALLY COERCED.
>> DON'T WE HAVE A UNIQUE
SITUATION IN THIS TYPE OF
CASE?
IN WHICH REALLY IT DOES BOIL
DOWN TO THE CREDIBILITY OF
THE VICTIM AND THE DEFENDANT
AND THAT TLR THEREFORE WHAT
THE VICTIM HAS DONE IN, IN
RESPECT TO MAKING ACCUSATIONS
IS, BEARS ON THE CREDIBILITY,
OF THE WITNESS, OF THE
VICTIM?
DOESN'T IT?
>> I DON'T THINK YOU CAN --
I MEAN, THE EVIDENCE CODE IN
EVERY SINGLE PROVISION, 405,
ALL OF THEM SAY YOU CAN'T
USE ONE SPECIFIC ACT.
YOU CAN PROVE BY CHARACTER
IF YOU CHOOSE TO.
HOW THE DEFENDANT, HOW THIS
LITTLE GIRL GOT AROUND AND
MADE SEXUAL ALLEGATIONS
AGAINST ALL KINDS OF PEOPLE.
>> BUT DOESN'T, THE
EVIDENTIARY ANALYSIS HAVE TO
BEGIN WITH THE FUNDAMENTAL
PROPOSITION THAT ALL
RELEVANT EVIDENCE IS
ADMISSIBLE UNLESS THERE IS
AN EXCEPTION?
>> THAT IS, THAT'S WHAT IT
SAYS.
>> RIGHT.
AND SO WE START FROM THE
PROPOSITION OF HAVING TO
DEAL WITH WHETHER THIS IS
RELEVANT OR NOT RELEVANT IF
WE ACCEPT THAT IT'S RELEVANT
THEN THE QUESTION SHIFTS TO
WHETHER THERE IS AN
EXCEPTION WHICH WOULD KEEP
IT OUT, WHETHER IT WAS TOO
REMOTE IN TIME, WHETHER IT,
THERE IS A SPECIFIC
EXCEPTION IN THE CODE AND IS
THERE A SPECIFIC EXCEPTION?
>> WELL, THE RELEVANCE
BASICALLY REQUIRES THAT IT
BE PROBATIVE OF A FACT.
IN THIS CASE, IT'S NOT THE
SAME PERSON.
IT'S NOT THE SAME TYPE OF
SITUATION.
YOU'RE ASKING TO ALLOW A
CHILD WHO AT A POINT IN TIME
CLEARLY DOESN'T HAVE THE
MENTAL CAPACITY TO
UNDERSTAND THE CONSEQUENCES
OF HER ACTIONS.
TO ADMIT -- YOU KNOW, YOU
HAVE TO LOOK AT ALL THOSE
FACTORS.
FOR RELEVANCE TREALLY HAS TO
BE SOMETHING THAT GOES TO
PROVE OR DISPROVE AN ELEMENT
OF THE CRIME.
HERE UNDER 404 WE ARE
TALKING ABOUT WHETHER IT WAS
AS ESSENTIAL ELEMENT.
>> I THINK JUSTICE WELLS IS
ASKING GO BACK TO THIS WHICH
IS THE FIRST ANALYSIS STARTS
WITH RELEVANCY, AND THAT'S
SPECIFIC TO THIS CASE OR
FACT SPECIFIC SO EACH CASE
IS ANALYZED FIRST ON
RELEVANCY.
BUT IT GOES TO, I THINK WHAT
YOU'RE -- LET'S ASSUME IT'S
RELEVANT AT LEAST THAT SHE
MAY NOT BE A TRUTHFUL PERSON
AND AGAIN YOU HAVE GOT THE
SOLE ACT OF, THAT IS THE
SOLE WITNESS IS THIS VICTIM.
SO I GUESS -- I WANT TO JUST
RETURN TO THAT.
ARE YOU SAYING THAT THERE,
THAT IT'S BECAUSE ALL THE
OTHER SECTIONS EXPLAIN HOW
TO IMPEACH THAT THE COURT IS
NOT, IS HAMSTRUNG FROM
SAYING EVEN IF IT'S RELEVANT
IT'S EXCLUDED BECAUSE OF
THIS PROVISION?
CAN YOU POINT TO A PROVISION
THAT WOULD THEN REQUIRE
AFTER THE JUDGE FINDS IT'S
RELEVANT LIKE IN JAGGERS,
THAT IT HAS TO BE EXCLUDED
BY A PROVISION OF THE
EVIDENCE CODE?
>> WELL, I THINK IT'S
EXCLUDED UNDER THE MANNER IN
WHICH IT WAS SOUGHT TO BE
INTRODUCED.
>> I DON'T UNDERSTAND.
EXPLAIN THAT.
>> OKAY.
I'M NOT SURE I'M REALLY
ANSWERING YOUR QUESTION.
>> NO --, WE'RE REALLY
GETTING -- JUST NOT THINK
ABOUT THIS CASE.
TOMORROW, ANOTHER JUDGE
STARTS A CASE, IT'S A SOLE
WITNESS CASE.
AND THERE'S SOMETHING A YEAR
AGO THAT INVOLVED THIS
PERSON LYING ABOUT ABOUT
SOMETHING PRETTY MATERIAL
AND FILLING OUT A FALSE
POLICE REPORT BUT SHE'S NOT
PROSECUTED.
NOW A LAWYER TRIES TO PUT
INTO EVIDENCE THE JUDGE IS
SUPPOSED TO DO WHAT?
THEY ARE GOING TO LOOK AT
THIS CASE AS A BLUEPRINT.
WHAT WILL THE JUDGE DO?
HOW WILL THE JUDGE ANALYZE
IT AND HOW WILL THE PARTIES
ARGUE?
>> OKAY EVEN IF WE ARE
ASSUMING IT'S RELEVANT --
>> WE'LL START WITH IT.
>> YOU START WITH RELEVANCY.
>> IT CAN BE EXCLUDED ON THE
BASIS OF PREJUDICE.
>> IT CAN'T BE RELEVANT TO
THE CRIME ITSELF TO PROVE
THE ELEMENTS OF THE CRIME IF
IT'S RELEVANT AT ALL IT'S
ONLY RELEVANT TO THE
WITNESS'S CREDIBILITY.
IS THAT RIGHT?
>> RIGHT.
>> OKAY AND SO ISN'T THE,
THE, THE DETERMINATION OF
WHAT EVIDENCE CAN IMPEACH
THE WITNESS'S CREDIBILITY
DETERMINED UNDER 404, 405,
610.
>> EXACTLY AND THE STATE
WOULD SUBMIT THAT IN THIS
CASE WHERE WE'RE START WITH
THE ASSERTION IT'S
ADMISSIBLE UNDER 610 THERE'S
NO CONVICTION IT'S NOT A
CHARGE MADE --
>> THAT'S WHY YOU DON'T SEE
ALL THESE CASES DISCUSSED.
401 BECAUSE IT'S NOT
RELEVANT EVIDENCE TO WHETHER
THE CRIME WAS COMMITTED OR
NOT.
YOU'RE TRYING TOIRM PEACH A
WITNESS.
>> BASED ON CREDIBILITY AND
YOU CAN ONLY DO THAT VIA
REPUTATION.
>> AND THE COURT ONLY
PROVIDES CERTAIN METHODS OF
IMPEACH AGWITNESS'S
CREDIBILITY.
>> THAT'S CREDIBLE.
HAD APPELLANT TRY!!IED TO DO
THIS SOME OTHER WAY THEY
COULD'VE TRIED TO GO TO
REPUTATION EVIDENCE.
THEY COULD'VE TRY!!IED TO DO IT
VERSUS REVERSE WILLIAMS.
>> THAT'S WHERE YOU WERE
GOING UNDER 404 SO YOU'RE
NOW EVEN THOUGH JUSTICE
CANTERO GAVE YOU THE ANSWER
TO HOW YOU WOULD ANSWER
THIS, AND I'M NOT DOESH, THE
QUESTION IS IS YOURS GOING
BACK TO SAYING MAYBE IT
COULD COME IN UNDER 404?
>> POTENTIALLY HAD -- IF IT
WAS RELEVANT, AND IF IF HE
COULD MOVE IT WAS AND SOUGHT
TO SUBMIT THAT WAY.
>> YOU COULD EXPLAIN THE
RELATIONSHIP BETWEEN 4042 IN
OUR CODE AND 4052?
IT SEEMS LIKE THEY ADDRESS
SIMILAR IF THOUGHT INSAME
THINGS BUT 4042 IS MORE
RESTRICTIVE THAN 4052.
PROFESSOR EHRHARDT SEEMS TO
THINK 4052 IS LIMITED TO A
VERY NARROW SET OF
CIRCUMSTANCES.
>> THAT'S CORRECT.
WHEN WE READ THE COMMENTARY
TO 4052, WE READ WHAT
PROFESSOR EHRHARDT SAYS.
WE READ ABOUT WHAT THE CASES
SAY.
IT IS LINKED TO CASES WHERE
IT IS A SPECIFIC AND
ESSENTIAL ELEMENT OF THE
CLAIM OR THE DEFENSE.
AND THE TYPES OF CASES IN
WHICH THIS HAS BEEN FOUND TO
HAVE APPLIED, ARE CASES LIKE
SELF-DEFENSE WHERE YOU ARE
TRYING TO PROVE THAT THE
VICTIM HAS A HISTORY OF, CAN
A REPEATED PATTERN OF
CONDUCT THAT THEY ATTACK.
OR IN CASES WHERE WE'VE GOT
AN INCOMPETENT DRIVER AND
THE PERSON HAS A, A RECORD
OF ADMINISTRATION ACCIDENTS.
THOSE KINDS OF CASES.
BUT ALL OF THE COMMENTARIES
AND ALL OF THE CASES
SPECIFICALLY SAY THAT YOU
CANNOT OFFER THAT TYPE OF
EVIDENCE, A SPECIFIC ACT AS
A BASIS OF AN INFERENCE THAT
BECAUSE THE PERSON ACTED
THAT WAY IN THE PAST THAT
THEY'RE ACTED IN CONFORMITY
IN THE --
>> WE KNOW THAT AS TO, YOU
KNOW, IF YOU'RE, IF THIS IS
THE DEFENDANT, I DON'T THINK
ANYBODY IS SUGGESTING THE
DEFENDANT YOU COULD GET TO
THIS EVIDENCE IN AGAINST THE
DEFENDANT TO SAY THAT THEY
ACTED THIS WAY, YOU KNOW,
FIVE YEARS AGO.
BUT WE ARE TALKING ABOUT,
WE'VE GOT THE CONSTITUTIONAL
OVERTONES HERE AND CLEARLY
WE CAN'T VIOLATE -- YOU KNOW,
THE EVIDENCE CODE IS EITHER
EXCLUSIVE OR THERE ARE --
WITHIN THE EVIDENCE CODE
WHERE THIS COMES IN OR ALL
THE OTHER STATES THAT HAVE
FOLLOWED THIS FALSE
ACCUSATION EXCEPTION ARE
JUST, YOU KNOW, EITHER THEIR
STATES HAVE THIS ALREADY IN
THERE, YOU WOULD HAVE TO
LOOK AT EACH STATE BUT SO
GOING BACK TO HOW IT WOULD
COME IN IN WILLIAMS RULE,
EXPLAIN THAT AGAIN TO ME?
THAT'S, YOU WOULD SAY IT WAS,
IT'S, WOULD BE, BECAUSE IT
SAYS IT'S RELEVANT -- IT'S
INADMISSIBLE WHEN THE
EVIDENCE IS SOLEY TO PROVE
BAD CHARACTER OR PROPENSITY
SO IT SEEMS TO ME PROPENSITY,
PROPENSITY FOR
UNTRUTHFULNESS YOU CAN'T
IMPEACH BY A PRIOR ACT.
>> THAT'S, THAT'S CORRECT.
>> BUT THAT WOULD BE TRUE
EVEN IF IT LOOKED SO
RELEVANT LIKE IT, IT'S THE
SAME DEFENDANT AND THE SAME
VICTIM ACCUSING THAT
DEFENDANT.
THAT'S WRMIER, I'M NOT AS --
THIS ONE IS, IS I THINK MORE
DIFFICULT FOR THE DEFENDANT.
BUT, BUT WE'VE GOT TO LOOK
AT ALL THE CASES, AND I'M
CONCERNED THAT IT WAS NOT
COME IN AND IN THE SCENARIO
WHERE TWO WEEKS AGO THE
PERSON FALSELY ACCUSED THAT
SAME DEFENDANT AND WOULDN'T
COME IN UNDER 404 BECAUSE IT
SAYS IT'S NOT RELEVANT, WHEN
THE EVIDENCE IS RELEVANT
SOLEY TO PROVE BAD CHARACTER
OR PROPENSITY, IT'S GOD TO
COME IN UNDER 609 AND 610 OR
405.
SO EXPLAIN THAT AGAIN TO ME.
YOU THINK THAT CAN AT
CERTAIN TIMES COME IN UNDER
4042?
>> NOT IN THIS CASE, I DON'T
BELIEVE BUT I BELIEVE IN
OTHER CASES IT, IT CERTAINLY
COULD.
THE BEAUTY OF THOSE
PROVISIONS THOUGH ARE THERE
ARE CERTAIN THINGS BUILT
INTO IT TO MAKE SURE THAT
THE EVIDENCE IS RELIABLE.
THAT WOULDN'T HAPPEN IN THIS
CASE BECAUSE IT'S TOO
REMOTE.
IT'S DIFFERENT TYPES OF
EVIDENCE.
IT'S DIFFERENT DEFENDANTS.
SO THERE, THERE WOULD BE
PROBLEMS IN THIS CASE BUT IN
OTHER CASES, IT MIGHT.
>> BUT, THAT'S, BUT THOSE
ISSUES OF REMOTENESS, THE
RELIABILITY, THAT'S NOT IN
THE EVIDENCE CODE.
THAT'S CASE LAW.
CORRECT?
>> CORRECT.
>> SO IT'S NOT LIKE
EVERYTHING THAT IS, THAT'S
THE COURT HAS NOT EXPANDED
ON, WHAT IS IN THE EVIDENCE
CODE TO MAKE SURE THAT A
TRIAL IS CONDUCTED FAIRLY.
CORRECT?
>> CORRECT.
THE STATE SUGGESTS THAT IN
THIS CASE WHAT THE SECOND
DISTRICT HAS SOUGHT TO DO IS
CREATE A STATUTORY EXCEPTION
THAT WAS NOT CONTEMPLATED BY
THE FRAMERS OF THE CODE.
IN THIS, IN THIS CASE, IT'S
CLEAR THAT THEY CONSIDERED
FEDERAL RULE OF EVIDENCE 608,
WHICH ALLOWS A BROAD
ADMISSION OF IMPEACHMENT
EVIDENCE AS TO TRUTH OR
UNTRUTHFULNESS.
THEY CONSIDERED THAT AND
THEY REJECTED IT FOR TWO
REASONS.
ONE, BECAUSE IT DID NOT
ACCURATELY REFLECT THE STATE
OF THE LAW IN FLORIDA, BUT
ALSO BECAUSE OF THE
POTENTIAL FOR ABUSE.
AS IN THIS CASE.
FOR EXAMPLE, I HAD A FIGHT
WITH MY SISTER AS A SMALL
CHILD.
WE WERE ROUGH HOUSING.
I BROKE A VASE OF MY
BROTHERS AND I BLAMED HER.
SO THAT MEANS -- MOTHERS
MOTHER'S SO THAT MEANS TODAY
THAT BECAUSE I AM A VICTIM
IN A SEXUAL BATTERY CASE
THAT THAT CAN BE BROUGHT IN
TO PROVE THAT I'M AN
UNTRUTHFUL PERSON.
IT'S TOO REMOTE.
IT'S TOO DIFFERENT AND THE
MINDSETS INVOLVED AT
DIFFERENT TIMES CAN BE
DIFFERENT.
>> BUT ISN'T THAT WHY, EVEN
IF YOU HAVE GENERAL
PRINCIPLE, WHICH IS UNDER
CERTAIN CIRCUMSTANCES, PRIOR
ACTS OF LYING, COULD COME IN,
YOU HAVE THE JUDGE FRAMING
IT AND YOU HAVE THIS COURT
AND THROUGH CASE LAW
EXPLAINING THE PARAMETERS,
YOU KNOW, UNDER 403 WHEN
IT'S SECLUDED.
I MEAN THE CATCH-ALL IS EVEN
WHEN SOMETHING'S RELEVANT,
IT STILL CAN BE EXCLUDED IF
DANGER OF CUB FUSION OR
PREJUDICE, REMOTENESS, COMES,
SO NOTHING PRECLUDES THE
JUDGE FROM THEN PERFORM
AG403 ANALYSIS.
>> THAT'S CORRECT.
THE STATE WOULD ALSO SAY
THAT WHAT HAPPENED WITH THE
SECOND DISTRIBUTION IS THEY
ARE ESSENTIALLY IMPOSING ON
THE LEGISLATIVE PERVIEW BY
LEGISLATIVE!!ING THEY CAN
NARROWLY CONSTRUE A STATUTE
TO SAY THAT IT'S
CONSTITUTIONAL BUT THEY
CAN'T EXPAND IT.
>> WE ALL AGREE THAT 610,
YOU CAN'T NOT CARVE AN
EXCEPTION INTO 610.
SO I, THIS GOES BEYOND THAT.
IT'S JUST REALLY THE
QUESTION OF WHETHER THE
OTHER PROVISIONS AS JUSTICE
WELLS WAS SAYING BECAUSE
IT'S RELEVANT IS IT
SPECIFICALLY EXCLUDED AND IS
IT EXCLUDE SAID BECAUSE
JUSTICE CANTERO SAID BECAUSE
THERE ARE ALL THESE OTHER
PROVISIONS ABOUT HOW YOU
IMPEACH AND THEREFORE THOSE
PROVIDE THE ONLY METHODS OF
IMPEACHMENT AND THAT WOULD
BE YOUR POSITION.
>> THAT'S CORRECT.
>> LET ME ASK YOU A
QUESTION.
IN, WHAT ABOUT 4041 B?
SPECIFICALLY CHARACTERS AND
VICTIMS, THE OTHERS SPEAK TO
VICTIM.
WHY WOULDN'T 4041 B NOT BE
AVAILABLE.
>> 4041 B DISCUSSES
CHARACTER AS A ESSENTIAL
ELEMENT OF THE CRIME OR
DEFENSE, AND AGAIN, THOSE
TYPES OF CASES GO.
>> -- ONE B THAT SAYS
EVIDENCE OF A PERTINENT
TRAIT OF THE CHARACTER OF
THE VICTIM OF THE CRIME
OFFERED BY AN ACCUSED.
>> WELL, AGAIN, IT CAN'T BE
ONE INSTANCE.
IT HAS -- WHEN YOU ARE
TALKING ABOUT A CHARACTER
TRAIT, IT'S SOMETHING THAT'S
CONSISTENT IN BEHAVIOR.
SO IT EQUATES ESSENTIALLY TO
REPUTATION-TYPE EVIDENCE,
IT'S SOMETHING THAT IS A
QUOTE, UNQUOTE, HISTORIC
RESPONSE OF SOMEBODY.
ONE INSTANCE WOULD NOT MAKE
A TRAIT OR A CHARACTER TYPE
TRAIT.
SO THE STATE'S POSITION IS
THAT WOULD NOT APPLY.
I JUST WOULD LIKE TO
CONCLUDE BY SAYING, YOU KNOW,
PETITIONERS RAISE AGDUE
PROCESS ARGUMENT.
THAT WAS ARTICULATED BELOW.
-- WAS NOT ARTICULATED
ABELOW.
IT DOES NOT APPLY BECAUSE
THERE ARE OTHER MEANS THAT
THIS TYPE OF EVIDENCE COULD
BE ADMITTED PROVIDED OF
COURSE THE STATUTORY
ELEMENTS FOR ADMISSION WERE
MET.
AND THE MOST IMPORTANT THING
ABOUT DUE PROCESS IS IT
DOESN'T ALLOW A DEFENDANT TO
PRESENT ANY DEFENSE ANY WAY.
HE STILL HAS TO DO SO WITHIN
THE BOUNDS OF WHAT THE LAW
PROVIDES.
AND THE LAW REQUIRES THAT
EVIDENCE MUST BE RELIABLE
AND IT MUST BE RELEVANT.
FOR ALL OF THOSE REASONS,
THE THE STATE WOULD ASK THIS
COURT TO AFFIRM.
>> THANK YOU.
>> REBUTTAL?
>> MAY IT PLEASE THE COURT.
MR. --
>> LUFFERMAN, ISN'T THE, THE
FALLACY HERE OF BEGINNING
WITH THE ISSUE OF RELEVANCE
AS JUSTICE CANTERO WAS
ALLUDING TO THAT THE
CREDIBILITY OF THE VICTIM IS
NOT A MATERIAL FACT?
>> IN THIS CASE, IT IS.
IT WAS A DEFENSE THAT --
>> WELL, HOW IS IT A
MATERIAL FACT?
I MEAN, THE MATERIAL FACT
INVOLVES THE CRIME, DO THEY
NOT?
>> BUT IT WAS A MATERIAL
FACT AS FAR AS THE
MR. ROEBUCK'S DEFENSE.
HIS DEFENSE WAS THERE'S NO
PHYSICAL EVIDENCE.
IT'S HE-SAID SHE-SAID AND
HER THEBLT IS THE KEY.
IF YOU DON'T BELIEVE HER,
THEN YOU DON'T HAVE A CRIME.
IF YOU BELIEVE HER, YOU DO.
>> YOU HAVE A CASE THAT SAYS
CREDIBILITY IS A MATERIAL
FACT?
>> JAGGERS AND CLIBURN I
THINK BOTH SAY THAT.
>> THAT IT'S A MATERIAL
FACT?
>> THAT THE VICTIM'S
CORRUPTNESS IS AN ESSENTIAL
ELEMENT THAT ALLOWS THE
DEFENSE TO BE ABLE TO
CROSS-EXAMINE THE ALLEGED
VICTIM REGARDLESS OF THAT
CORRUPTNESS.
>> WHAT I AM TRYING TO
TAILOR IS TO IS WHAT IS IN
THE EVIDENCE CODE.
>> JAGGERS PROVIDE RELIED
UPON --
>> WHAT HAVE OTHER COURTS
SAID AS FAR AS WHETHER YOU
CAN IMPEACH THE CREDIBILITY
OF A WITNESS THROUGH 405?
IT SEEMS TO ME THAT 608
PROVIDES THE METHODS FOR
IMPEACHING THE CREDIBILITY
OF A WITNESS AND IT'S VERY
SPECIFIC AND HAS CERTAIN
PROVISIONS AND IT ALSO
REFERS TO 609 AND 610.
IT DOESN'T SAY ANYTHING
ABOUT 404 OR 405.
>> I UNDERSTAND THAT.
AGAIN, I THINK JAGGERS CASE
AGAIN IS THE MAIN CASE THAT
RELIED UPON 405.
I NEED TO CHROR FIMPT
JAGGERS DID INVOLVE A
DIFFERENT PERSON WHERE THE
ALLEGED CRIMINAL TACT WAS
COMMITTED UPON.
THE WILLIAMS RULE CASE SAID
IN THE INSTANCE THE
DEFENDANT HAD MOLESTED THE
WILLIAMS RULE WITNESS AND
SHE HAD SAID PREVIOUSLY HER
FATHER MOLESTED HER SO THERE
WERE DIFFERENT PEOPLES IN
JAGGERS AS WELL.
I WOULD ASK YOU TO ADOPT THE
SECOND DISTRICT'S POSITION.
>> THANK YOU VERY MUCH.
I DOUBT THAT WE HAVE HAD
THIS INTERESTING DISCUSSION
ABOUT THE EVIDENCE CODE
SINCE LAW SCHOOL
EXAMINATION.
>> I WAS SAYING TO JUSTICE
CANTERO THIS WOULD BE A
GREAT LAW SCHOOL QUESTION.
>> YOU BOTH DID A WONDERFUL
JOB.
>> THANK YOU.
>> GIVE IT TO PROFESSOR
EHRHARDT.