United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING GOVERNMENT'S MOTION IN LIMINE IN
PART AND GRANTING DEFENDANT'S MOTION TO EXCLUDE 404B
EVIDENCE IN PART
L. LUDINGTON, UNITED STATES DISTRICT JUDGE
March 5, 2019, Plaintiff filed a “motion to suppress
victim's prior allegations of sexual assault”
pursuant to Federal Rule of Evidence 412, the federal
rape-shield law. The Court denied the motion without
prejudice, explaining that the Rule 412 is inapplicable as
Defendant is not charged with sexual misconduct. ECF No. 36.
20, 2019 Plaintiff filed another motion to exclude evidence
relating to C.J.'s (the alleged victim in this case)
prior allegations of sexual assault against another man, F.T.
ECF No. 37. It is important to note at the outset that the
Court initially denied Plaintiff's motion solely because
Rule 412 is inapplicable, and Plaintiff identified no other
reason for exclusion. Plaintiff now identifies additional
bases for the exclusion of any evidence, questioning, or
argumentation relating to C.J.'s prior allegations of
sexual assault against F.T.
to the Defendant, he maintained an intimate, live-in domestic
relationship with C.J. from March 2018 through October 24,
2018. ECF No. 50, PageID.211. The government's first
superseding indictment charges, among other things, that
Defendant unlawfully imprisoned C.J., sought to strangle and
suffocate her and then sought, by intimidation and threats,
to convince her to lie when called as a witness. ECF No. 9.
The government contends that C.J. is not the first of the
Defendant's victims: it seeks to offer the testimony
(under Rule 404(b)) of R.T., a former girlfriend of the
Defendant, that he stalked, assaulted, and unlawfully
imprisoned her at some unidentified period of time. ECF No.
supplemental filing, the government (applying similar
reasoning) added S.R. to its witness list, contending that
she is a former wife of Defendant who was similarly
mistreated. ECF No. 38. Indeed, in the government's
latest filing the government contends that it has learned of
yet another witness, Defendant's mother Robin Johnson,
who will testify that not only did she personally observe
Defendant holding R.T. against R.T.'s will but, in fact,
Defendant held Robin Johnson against her will as well. ECF
alleges with some force that C.J.'s testimony about his
mistreatment of her is false and that in fact she has falsely
accused prior romantic partners, specifically F.T., of
assaulting her as well. Defendant contends that he should be
permitted to introduce evidence of F.T. and C.J.'s
relationship because if reflects a pattern of falsely
accusing prior romantic partners of misbehavior. According to
the Defendant, he is at least the second victim of C.J.'s
scorn and retaliation.
argues that evidence of C.J.'s alleged prior false
accusation about F.T. is not admissible under Federal Rule of
Evidence 608. Rule 608(a) provides that “a
witness's credibility may be attacked or supported by
testimony about the witness's reputation for having a
character for truthfulness or untruthfulness, or by testimony
in the form of an opinion about that character.”
However, rule 608(b) provides that “extrinsic evidence
is not admissible to prove specific instances of a
witnesses conduct in order to attack or support the
witness's character for truthfulness.” Fed.R.Evid.
608(b) (emphasis added). But, “the court may, on
cross-examination, allow them to be inquired into if
they are probative of [the witnesses] character for
truthfulness.” Id. (emphasis added).
Defendant blurs the distinction between the evidence he seeks
to offer about C.J's character generally (including her
character for truthfulness), and the “evidence”
he seeks to offer as to whether she lied in the specific
instance of her rape allegations against F.T..
Defendant is entitled to cross examine CJ about whether she
made prior false accusations but will be prohibited from
offering any extrinsic evidence.
contends that Defendant should not be permitted to inquire of
C.J. about F.T. at all:
When defendant's “evidence” that the prior
allegations are false consist of the fact that they were not
prosecuted, the Court has held that to be insufficient to
show that the allegations were false. United States v.
Crow Eagle, 705 F.3d 325, 329 (8th Cir. 2013). In
another case, the Court found that even a finding by the
Department of Children and Family Services that sexual
assault allegations are “unfounded” is not
sufficient proof that the prior allegations were false.
Cookson v. Schwartz, 556 F.3d 647, 655 (7th Cir
2009). Even a criminal trial resulting in an “acquittal
regarding the victim's prior allegation of sexual assault
was not dispositive of the falsity of the allegation.”
United States v. Erikson, 76 M.J. 231 (2017).
these cases do not support the proposition that the defendant
must satisfy the court that he will be able to prove
C.J.'s allegation against F.T. false (or legitimately
call the allegation into question), before he is even
permitted to ask her if she was telling the truth. Plaintiff
does identify one case in support of this argument:
The Court addressed this very issue in United States v.
Crowley, 318 F.3d 401, 417-18 (2nd Cir. 2003). In that
case, the Court held it was appropriate to preclude the
inquiry all together when the only thing that would happen
before the jury would be the question and the denial by the
witness because “the prejudicial impact of the
engendering speculation about the subject outweighed the
minimal probative value of permitting the jury to evaluate