1991.08.28: Leon Letwin, Criminal Law Seminar 503 (UCLAW).OCR

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Raw text: Professor Letwin


503. Criminal Law Seminar August 28, 1991


The following issues are suggested by the two newspaper articles reproduced below:

I) Should the prosecution in a rape case be permitted to offer evidence of prior rapes

committed by the defendant? II) Should the defendant be permitted to offer evidence of

prior sexual activity by the victim? And III) is there any basis for answering these two

questions differently?

A principal hurdle to a prosecutor’s efforts to pursue the path suggested in I above

are statutes of the type set forth in footnote 2 of the Tassell case (Cal.Evid.Code § 1101)

reproduced below. A principal hurdle to efforts to pursue the path suggested in II above

are the rape shield laws, one form of which is found in Fed. Rule of Evid. 412, reproduced


Tassell presents a debate between then-judges Kaus and Reynoso on the

admissibility of evidence offered by the prosecution of prior rapes by the defendant, in

light of Cal.Evid.Code § 1101. Who do you think wins the debate?

Please read the material by next Tuesday (Sept. 3) and, by 10:00 a.m. of that day,

deposit in my mailbox, with your name, one or two suggested problems, issues, or

questions about Tassell that you think warrant discussion.

Rape S~spect Cited in Prior Incidents. ,,


Special to The New York Times

MIAMI, July 22- Prosecutors in the

rape case against William K. Smith

said today that they had uncovered

three previous incidenn; in which Mr.

Smith either raped or attempted to

rape women and that they would seek

to use these accounts as evidence

against him.

In papers filed in Palm Beach County,

Assistant State Attorney Moira K.

Lasch asserted that Mr. Smith had

raped a woman in Washington in the

spring of 1988. Ms. Lasch said she intended

to use the incident as evidence

that Mr. Smith, the 30-year-old nephew

of Senator Edward M. Kennedy, had

committed acts similar to the rape he

is charged with here.

The prosecutors also alleged that Mr.

Smith tried to rape two other women.

The first such encounter described in

the court papers is said to have taken

place in Manhattan in the summer of

1983, and the second in Washington in

the spring of 1988. The police in Washington

and New York have said there is

no record of any charges lodged

against Mr. Smith for sexual assault or

other felonies.

In both of the two attempted rapes,

the court documents said, Mr. Smith

forcibly restrained” the women but

“failed in the perpetration or was intercepted

or prevented in the execution of

said offense.” He was said to have

tackled and fondled one of the women

and to have “thrown down” the other.

Trial to Start Next Month

Mr. Smith is scheduled to go on trial

on Aug. 5 on charges that he raped a 29-

year-old Florida woman at the Kennedy

family’s Palm Beach estate on

March 30. Mr. Smith has pleaded not


Mark Schnapp, a lawyer for Mr.

Smith, declined to comment on today’s

developments, citing an order issued

by the trial judge, Mary Lupo, that restricts

lawyers in the case from discussing

it outside of court.

The names of the three women who

claimed Mr. Smith assaulted them

were listed in today’s filing, but no

other personal information about them

was provided and it was unclear

whether they knew their names would

be made public. It was also not immediately

clear whether they had approached

the Florida police and prosecutors

on their own or had been sought

out by the prosecution or state investigators.

The documents listed a private Manhattan

lawyer for one of the women,

but only the Palm Beach prosecutor’s

office as a contact for the other two.

Eric Seiff, the lawyer who represents

the Manhattan woman who says she

fended off an attack, declined to elaborate

on how his client came to be involved

in the case.

“I’m not saying anything,” Mr. Seiff

said. When asked if the woman would

testify in court, he answered, “That’s

Prosecutors say

Smith victimized

three women


up to the prosecutor.”

The three women were listed as

“additional witnesses,” but a spokesman

for the Palm Beach County prosecutor’s

office would not say whether

the women would be called to testify or

would merely file statements. Citing

the judge’s restrictions prosecutors

also declined to elaborate:

What Florida Law Allows

Legal experts not connected with the

case said that they regarded the new

filing as an attempt by the prosecution

to bolster its case by establishing that

Mr. Smith had a history of similar offenses.

Under Florida law, “similar

fact evidence of other crimes, wrongs


or acts is admissible when relevant to

prove a material fact in issue.

Whether the accusations contained

in todays filing would be permitted at

the trial would normally be determined

at a hearing, whose date has not yet

been set.

Neil Sonnett, a prominent Miami

lawyer who is former president of the

National Association of Criminal Defense

Lawyers, said Florida courts had

been strict about allowing use of evidence

of the type presented today because

it is fraught with the danger of

convicting the accused, not of the

crime of which he is charged but of a

perceived criminal propensity or bad


In addition, he said, “even relevant

evidence can be excluded if a judge

rules it is unduly prejudicial.”

In the absence of any formal charges

filed at the time of the alleged attacks,

it was not clear how the prosecution intends

to document the allegations.

At a hearing early this month, Ms.

Lasch had dismissed as “irrelevant”

the question of whether Mr. Smith had

engaged in “prior misconduct.”

Testimony on Defendants~

Past Actio·ns Stirs DisputeS

Such evidence about alleged sex-crime victims is often restricted.



WASHINGTON -The revelation

that women alleging previo us

sexual attacks may testify in the William

Kennedy Smith rape trial underscores a

dramatic shift in criminal law: U. S. ·

courts are becoming far more permissive

in allowing evidence about defendants’

past actions, while growing ever more

restrictive on the histories of alleged

sex-crime victims.

Increasingly, judges are allowiqg juries

to consider allegations of past criminal

activity by defendants-in some

cases even if the accusati01_15 ·w~-wver

proved, were never Qrought,to ~e or

involve events that occotttW~ai:le$

· ~~~ .

At the same time .. states have 111oved

ever more strongly leY Qar evidence

involving the past actions or alleged

sex-crime vfctims: .l’io”W-:t!lori than 40

states bar such evidente in ·most cases;

some states, such· as. ElO:~da. prohibit:.

descriptions of. clath.fJl!f ~om by dte

victims. “t: ·.

The admissil>ility ~ suen evidence is

an explosive i’ssu~ for tai!Q about 9ast

actions can quickly turn juries against

defendants or victims.

In the case of defendants, “They start

to think, ‘This is a bad guy, we’re gotng

to punish him,’ even if the acts were

committed years ago,” says Paul H.

Rothstein, law professor, at Georgetown

University and a.specialjsh in sex-crime

law. This. is · very contro~ial. .. .

We argue about it all the tfme.”

While few argue tM&-;.the restriC’tions

on evidenee about victims· ·

histories are not well-founded, some · ·

lawyers contendthat the growing disparity,

in . admissibility of evidence is

tilting the tables too far against defendants

in sex crime cases.

John F. Banzbaf III, a law professor at

George Washington University: says

that the consequences may become

apparent in the Smith case. Smith, the

·nephew of Sen. Edward M. Kennedy

(D-Mass.), is accused of raping a 29-

year-old woman at the KennedysPalm

Beach estate March 30.

If Smiths defense team js barred from

introducing evidence about the alleged

victims past, while the prosecution is

permitted to take evidence from ‘thethree

women who claim he once assault~-:. .

ed them, “an issue of fairness. OF even-· ·-.

sex discrimination, could be raised,.said


At this point, it is not at all clear how

F’lorida state court Judge Mary Lupo

w.ill rule on the testimony of the three

women, one of whom claims to have

been raped by Smith, and two of whom

say that Smith attacked them sexually.

Hearings on whether to admit the

evidence are.expected to be lengthy and

have yet to be scheduled. Th~ juctg~. ir

expected to hold a separate hearirik on

the key· issue of what evide~<;e·· the· ·

defense can introduce on the all.eged

victims past. .. .

·But even if one or two of the witnesses

are allowed to testify, it could have a

decisive effect on the case, says Roths·.

.tein. The evidence is so powerful that if

the judge lets· it in, Smith might see: the

llandwriting on the wall” and seeK to

pJead guilty to a misdemeanor charge of

battery, Rothstein says.

I Federal· Ia~ bars using evidence of

. Pa$~ c~es to illustrate the defendant’s

“cpa,~cter or proP.ensity.” But it

permits· the use of such evidence if the

past deeds were closely similar to the

alleged act aud shed light on the defendant’s

motive, intention, or plan,”

Rothstein said. The essence of the

federal law has been adopted by most

.. states, including Florida.

Over the past several decades, judges

have been increasingly lenient in interpreting

this rather vague language to

allow all .sorts of past accusations to be

brought before juries.

So while the Smith case is by no

mP.ans decided, ·’there are now so many

exempti<m<; tQ the rules that a clever

prosecutor r.an· almost always get the

eviderlC~eadmitted,” Rothstein said.

The growing tendency to admit such

evidence is based in part on the longtime

legal supposition that a person w..ho has

committed one crime is at least slighUy

more likely tocommit more.

In contrast, the increasing reluctance

to admit information on the histories of


Possible testimony,;.

· fro~· women alleging 1:preyious

attacks by ..

. Wi.Uiam Kennedy Smith., . ..

und~~Qres a shift in ·

qiminal j~w...

sex crime victims· it>~ed {)n a lepl

supPosition -that a woqran.Jit 1Jcm:Dt1l.5,e f

likely -to consent to a se&: ~t.; ·

because she has consented 1*; ..:


The tightened laws also reflect public

concern that a victim’s character shouldnot

be attacked in the course of a

sexcrime trial. They are also intended

to encourage more sex-crime victims to

file charges.

Many lawyers say that judges have

become more lenient in admitting

evidence about defendants in recent

years, partly because of rising concern

about crime.

“The philosophy is to leave it to the .

jury to decide whether the stuff has an_y

merit,” Banzhaf~d.

The courts’ tendency to allow evidence

about allegations of past offenses

by sex-crime defendants, violates theil’

clients’ Sixth Amendment guarantee to a

fair trial, many defense lawyers contend.

This is one of the ways that the

entire judicial system is moving away

from the rights of the accused,” said

Richard Sharpstein, a Miami criminal

defense attorney.

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