Why the conditional relevance doctrine may be dangerous

Much academic discussion of the conditional relevance doctrine (of the sort found in Federal Rule of Evidence 104(b)) must seem hopelessly ethereal. However, a recent decision (2006) by Washington State's Supreme Court is a nice example of how the doctrine can subvert standard notions about how the process of proof should work. In State v. Dixon, 147 P. 3d 991 (Wash. 2006) the Washington State Supreme Court upheld the trial court's ruling rejecting the attempt by a criminal defendant charged with sexual molestation to impeach the alleged victim with a statement in which she may or may not have recanted her charge of molestation and admitted she had been lying and the Washington Supreme Court did so on the ground that the relevance of the child's statement depended on whether she was or was not referring to her father and the defendant, it ruled, had offered insufficient evidence to support a finding that the child was indeed referring to her father rather than someone else:

¶ 26 Here, the relevancy of the defense's proffered impeachment evidence (Hansen's testimony concerning N.D.'s alleged question about lying) was dependent upon the establishment of fact B (that N.D. was referring to lies she had told about the molestation allegations). In other words, under ER 104(b), the defense's desire to prove fact A (that N.D. was asking Hansen what she should do if she had lied about the molestation allegations) was dependent on proof of fact B (that N.D.'s question pertained to the molestation allegations). Consistent with the comment to ER 104(b), the trial court exercised its discretion and determined that evidence of fact B should precede evidence of fact A.

¶ 27 Regarding fact B, the trial court's proper inquiry under ER 104(b) is "whether the evidence is sufficient to support a finding of the needed fact." State v. Karpenski, 94 Wash.App. 80, 102, 971 P.2d 553 (1999) (emphasis added). As to the applicable standard of review, the Karpenski court stated that "[w]hen a trial judge's function is to decide whether the evidence is sufficient to support a finding, a reviewing court's function will be the same." Id. at 104, 971 P.2d 553. We conclude, as did the trial court, that the defense provided no "evidence . . . sufficient to support . . . the needed fact." Id. at 102, 971 P.2d 553. Hansen's testimony proved nothing more than that N.D. had possibly lied about something. Hansen's speculation remained the only support for "the needed fact" that N.D.'s comments to Hansen pertained to the molestation allegations. Id. Given the failure of the defense to provide sufficient support, the trial court determined that Hansen's testimony was too speculative and therefore not relevant under ER 104(b) and ER 402. Contrary to Dixon's contention, the trial court's relevancy determination under ER 104(b) was not an abuse of discretion. Because the defense failed to establish the relevancy of N.D.'s cryptic remark to Hansen, the trial court properly precluded the defense from using Hansen's testimony for impeachment purposes as a prior inconsistent statement pursuant to ER 613(b).

There is a strong argument that the child's statement, though cryptic, was relevant and that it should have been left to the jury to decide whether the alleged victim was or was not saying that she had lied. Justice Madsen, concurring, wrote:

¶ 30 I agree with the dissent in State v. Dixon, noted at 118 Wash.App. 1005, 2003 WL 21916401 at *6, 2003 Wash.App. LEXIS, at *16 (unpublished opinion) (Bridgewater, J., dissenting), wherein Judge Bridgewater noted that the question presented to the trial court was one of conditional relevance. As he correctly concluded, the trial court erred when it failed to evaluate the evidence in the light most favorable to the defendant, as proponent of the evidence. State v. Karpenski, 94 Wash.App. 80, 103 n. 101, 971 P.2d 553 (1999) (judge may not reject inferences favorable to the proponent when determining sufficiency of evidence under ER 104). As Judge Bridgewater stated, N.D.'s statements to Amber Hansen about lying were relevant if the jury believed those statements concerned Dixon.

¶ 31 The evidence offered by Arthur Dixon showed that just prior to N.D.'s unsolicited statement to her aunt about lying, N.D. had overheard her mother and Hansen talking about Dixon and the charges that were filed as a result of N.D.'s accusations against Dixon. And, during the same time period, N.D. had discussed with her counselor whether the abuse she complained of was real or a dream. Viewed in the light most favorable to Dixon, the statements are at least minimally relevant as prior inconsistent statements. This is so because N.D. had testified that the abuse occurred, but these prior statements, and the inferences therefrom, imply that she was lying about the abuse. State v. Dickenson, 48 Wash.App. 457, 467, 999 740 P.2d 312 (1987) (inconsistency is determined not by specific statements alone but by the effect or impression conveyed). For the reasons articulated by Justice Sanders in his dissent, Dixon should have been allowed to pursue this area of inquiry. The State could then have attempted to demonstrate that the earlier statement was not made or that it did not refer to Dixon.

The dissenting opinion reads this way:

¶ 34 The majority holds Arthur Dixon failed to provide evidence "`sufficient to support'" the fact that N.D. had been discussing Dixon's molestation charges when she asked her aunt, Amber Hansen, "[W]hat do I do if I'm lying[?]" Majority at 997 (quoting State v. Karpenski, 94 Wash.App. 80, 102, 971 P.2d 553 (1999)); 4 Report of Proceedings (RP) at 489. Accordingly, the majority upheld the trial court's determination that Hansen's testimony was "too speculative and therefore not relevant" under ER 104(b). Majority at 997-98. I disagree.

¶ 35 Hansen's testimony is not irrelevant because viewed in a light most favorable to Dixon it is entirely plausible for the jury to infer N.D.'s statement "[W]hat do I do if I'm lying[?]" referenced Dixon's alleged molestation. And when considering preliminary questions related to relevance, the trial court may not reject evidence or inferences favorable to the proponent. Karpenski, 94 Wash. App. at 103 n. 101, 971 P.2d 553.

¶ 36 Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401 (emphasis added). The threshold for relevancy is low. Bell v. State, 147 Wash.2d 166, 182, 52 P.3d 503 (2002). "When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." ER 104(b).[3] In other words "`[t]he judge requires the proponent to bring forward evidence from which the jury could find the existence of the preliminary fact. The opposing party may 1000 then bring in disputing evidence. If on all the evidence the judge determines that the jury could not find the existence of the preliminary fact, he excludes the evidence. Otherwise, the question is for the jury.'" Kosmas v. State, 316 Md. 587, 601, 560 A.2d 1137 (1989) (quoting McCormick on Evidence § 53, at 137) (Edward W. Cleary ed., 3d ed. (1984)). See also Kosmas, 316 Md. at 601, 560 A.2d 1137 ("`The judge must determine that a reasonable jury could make the requisite factual determination based on the evidence before it.'" (quoting 1 Jack B. Weinstein and Margaret A. Berger, Weinstein's Evidence § 104[09] (1988))).

¶ 37 N.D.'s aunt who witnessed the question believed N.D. was discussing her father. It is therefore plausible a jury could reach the same conclusion.

Q: (Defense counsel) And what was [N.D.] talking about?

A: (Hansen) She was talking about her dad or at least that's what I got out of it.

Q: Had you been talking about her father?

A: Yes.

4 RP at 489.

¶ 38 Judge Bridgewater's dissent from the Court of Appeals decision below correctly determines a reasonable jury could reach such a conclusion after inferring from N.D.'s statement,

"1. A lie had been told.

"2. By [N.D.] (she was asking about herself, and not asking for another).

"3. The lie related to whether the molestation occurred, not to lies about breaking things."

State v. Dixon, noted at 118 Wash.App. 1005, 2003 WL 21916401 at *6, 2003 Wash.App. LEXIS 1770, at *17 (2003) (unpublished opinion) (Bridgewater, J., dissenting). N.D.'s use of the first person suggests she was talking about herself as having told the lie. Her comment, "phrased in the past tense, that it had `gone too far' suggests both that N.D. was talking about an actual, past lie and that the lie was about a serious matter capable of `go[ing] too far.'" Id. at *6, 2003 Wash.App. LEXIS 1770 at *17 (alteration in original) (quoting 4 RP at 489). Furthermore, N.D. posed the question shortly after Hansen and N.D.'s mother discussed Dixon in N.D.'s presence. 4 RP at 489. In a light most favorable to Dixon, this evidence and resulting inferences reasonably connect N.D.'s lie to Dixon's alleged molestation. Id. at *6-7, 2003 Wash.App. LEXIS 1770 at *17-18.

¶ 39 In support of its position, the majority states "the trial court concluded that [Hansen] had failed to confirm that N.D.'s question about lying concerned the molestation allegations." Majority at 997. But the trial court's analysis was incorrect; Hansen did not need to confirm N.D's question about lying concerned the molestation allegations; the court needed merely to find "evidence sufficient to support a finding of the fulfillment of the condition." ER 104(b) (emphasis added).[4] And here, the evidence was sufficient to support such a finding.[5]

¶ 40 Even after "conditionally relevant" evidence is admitted, a jury must weigh its value and probative force to determine the 1001 ultimate question: whether Dixon molested N.D. See State v. Reil, 409 N.W.2d 99, 106 (N.D.1987) ("Once the evidence is admitted the question becomes one of credibility and probative force and the trier may ultimately disbelieve the proponent's proof and entirely disregard or substantially discount the persuasive impact of the evidence admitted. [ER 104(b)] requires only that the court admit evidence if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification. The rest is up to the jury.'" (quoting 1 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence ¶ 901(a) [01], at 901-16 to -18 (1983))). In the end, the jury may find the evidence so overwhelmingly indicative of abuse that N.D.'s question could not have been referencing the molestation charges. But this is a question for the jury and not for the courts.

¶ 41 Dixon was precluded from using Hansen's testimony for impeachment purposes under ER 613(b). Criminal defendants have a constitutional right to impeach prosecution witnesses with prior statements that are inconsistent with the witness's trial testimony. See State v. Dickenson, 48 Wash.App. 457, 470, 740 P.2d 312 (1987) (constitutional harmless error test applies to the erroneous refusal to allow a defendant to impeach a witness with a prior inconsistent statement). And reversal is required unless no rational jury could have a reasonable doubt about the defendant's guilt absent the error. State v. Spencer, 111 Wash.App. 401, 408, 45 P.3d 209 (2002). Contrary to the majority's determination that "`the untainted evidence is so overwhelming it necessarily leads to a finding of guilt' beyond a reasonable doubt," the court's error is not harmless as the entire case rests upon N.D.'s credibility, and evidence "poking holes" in her credibility would doubtless affect the outcome of the trial. Majority at 998 (quoting State v. Easter, 130 Wash.2d 228, 242, 922 P.2d 1285 (1996)). See State v. Neal, 144 Wash.2d 600, 611, 30 P.3d 1255 (2001) ("An error is prejudicial if, `within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.' State v. Smith, 106 Wash.2d 772, 780, 725 P.2d 951 (1986). Improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the evidence as a whole.").

¶ 42 The case should be reversed and remanded for a new trial.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Admissibility Rules and Closing Argument: Parallel Worlds?

In Spindle Law's evidence module, I comment:

There is some tension between the closing argument and admissibility rules. See, e.g., Samuel Gross, "Make-Believe: The Rules Excluding Evidence of Character and Liability Insurance," 49 Hastings L.J. 843 (1997). One of the recognized functions of the closing argument (or summation) is storytelling. In general, however, the rules regulating the admissibility of evidence at trial pay scant attention to storytelling. But cf. Old Chief v. United States, 519 U.S. 172 (1997). One of the recognized functions of storytelling, or narrative, in closing argument is to tell a persuasive story -- or even a gripping one -- and in this way (as well as in other ways) arouse and appeal to the sentiments and passions of the trier of fact (particularly a jury). But the language of the admissibility rules as well as the language that courts usually use to explain and interpret them usually characterizes "passion," "sentiment," and "emotion" as dangerous. See, e.g., Evidence Advisory Committee's Note on Federal Rule of Evidence 403 ("The case law recognizes that certain circumstances call for the exclusion of evidence which is of unquestioned relevance. These circumstances entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme."; "'Unfair prejudice' within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.") Sometimes it seems that the law of evidence and "effective trial advocacy" [live in] parallel worlds. Cf. P. Tillers, at A Sickening Closing Argument (blog post) (August 21, 2009)....

There is a large body of literature (much of it in bar journals) on the art of the closing argument and on the role of appeals to emotion for effective oral advocacy in the closing argument. See, e.g., Ronald J. Matlon, Opening Statements - Closing Arguments (2009); Robert P, Burns, A Theory of the Trial 67-72 (1999, paperback 2001); Jacob A. Stein, Closing Argument: The Art and the Law (1969).

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

The Importance of Checklists

I sometimes think of my theory of evidence marshaling in legal settings as doing little more than laying out different kinds of checklists that are important in pretrial fact investigation and for trials. This is why I have just ordered the new book by Atul Gawande, The Checklist Manifesto: How to Get Things Right (2009). (Gawande is a surgeon.)

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

History of Forensic Entomology

See Mark Benecke's A Brief History of Forensic Entomology.

On forensic entomology in general see Education through Entomology.

A hat tip to Mary Thompson!

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

victim's specific acts --> victim's character --> victim's conduct ?

In State v. Fish, 213 P.3d 258, 263-272 (Ariz. Ct. App. 2009) the Arizona Court of Appeals refuses to follow Commonwealth v. Adjutant, 443 Mass. 649, 824 N.E.2d 1 (2005), and abandon the prevailing rule that when character, or disposition, is admissible in a criminal trial to show an alleged victim's conduct, the victim's conduct may be shown only by opinion or reputation and not with victim's specific acts. See the node Character of victim may be shown only by reputation or opinion in the evidence module of Spindle Law. The court distinguishes the use of a person's specific acts when (i) a victim's specific acts are known to a party such as a criminal defendant and the specific acts are introduced to show a legally-material fact such a defendant's fear of victim to support a defense such as self-defense and (ii) the character, or propensity, of a person is an essential element of a claim, charge, or defense.

Arizona's court of appeals graciously cites my revision of vol. 1 of Wigmore's monumental treatise on the law of evidence -- and I am appropriately grateful. However, I personally now favor the approach now taken in Massachusetts. Cf. Character Traits as Reference Classes and A Constitutional Right to Offer Character Evidence?.

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The dynamic evidence page