Case o' The Week: Protection sans Objection - Haines and FRE 412 Evidence

  The Federal Rules of Evidence cannot be used as both a sword and a shield.

  (By the defense).

United States v. Haines, 918 F.3d 694 (9th Cir. Mar. 14, 2019), decision available here.

Players: Decision by visiting District Judge Adelman, joined by Judges Wallace and Friedland.  

Left to right, the Honorable Judges Wallace and Friedland, and the Honorable District Judge Adelman

Facts: Haines and his friend King were charged with transporting two minor females from Nevada to California to work as prostitutes. Id. at 696. Over time, the girl alleged to have worked for Haines changed her story to the Feds. By trial, she testified that she did not prostitute for Haines and that her grand jury testimony was false. Id. Instead, she testified that she worked independently. Id.

   At trial, Haines attempted to question the girl about her prior prostitution activities (that did not involve a pimp), arguing that this was relevant to the question of whether he recruited her or encouraged her to engage in prostitution. Id. The district court excluded this testimony under Federal Rule of Evidence 412, the “rape shield” rule. Id.

  Haines was convicted, and appealed.

Issue(s): “Haines argues that evidence of J.C.’s prior prostitution activities should have been admitted under the exception to Rule 412 for 'evidence whose exclusion would violate the defendant's constitutional rights'—here, his due process right to present a complete defense and his Sixth Amendment right to confront witnesses.” Id. at 697.

Held: “[I]n cases involving adult victims forced or coerced into prostitution, courts have rejected such arguments, concluding that evidence of other prostitution activity has little or no relevance. Courts have reasoned that just because a victim agreed to engage in sex for money on other occasions does not mean she consented to, e.g., being beaten or having her earnings confiscated by the defendant.” Id. at 697-89 (citations omitted).

  “Haines cites no case holding that a defense such as the one he sought to present here triggers the exception in Rule 412. And we see no reason to depart from the persuasive authorities set forth above that held to the contrary.” Id. at 698-99.

Of Note: The unusual fact in Haines was that the female victim-witness for this Fed. R. Evid. 412 brouhaha was putatively a defense witness. She had recanted her grand jury testimony by the time of trial (after a jailhouse call from Haines, unfortunately). Atypically, the witness wasn’t objecting to the admission of this prior-prostitution evidence by Haines. The government was therefore using Rule 412 not as a shield, to protect a witness’s privacy, but as a sword, to prevent a defendant from eliciting favorable testimony “from a recalcitrant witness.” Id. at 699.

  No matter, concluded the Ninth, in a disappointing limitation on a defendant’s constitutional right to present a defense. “[A]llowing the victim’s wishes to control opens the door to mischief.” Id.      

How to Use: The narrow window left open on this type of “prior prostitution” evidence is when the government “opens the door” by suggesting that an alleged pimp introduced a minor to prostitution (that she was “an innocent lamb led to the slaughter).” Id. at 700. The Ninth holds this door wasn’t opened in the Haines case, in part because the district court warned the government against this line of evidence and argument.  The Court seems to recognize, however, that this type of evidence could be admissible if made relevant by the government’s approach.

                                               

For Further Reading: On March 26, the Senate confirmed President Trump’s nomination of the Honorable Magistrate Judge Bridget Bade, of Phoenix, to the Ninth Circuit Court of Appeals. See press release here. 

  Judge Bade will be joining two confirmed Ninth Circuit Trump nominees: the Honorable Judge Mark Bennett of Hawai’i, and the Honorable Judge Ryan Nelson of Idaho. See Ninth Circuit chart here. 

 Two additional Ninth nominees cleared the Senate Judiciary Committee on April 4, 2019: Mr. Daniel Collins, of L.A.’s Munger, Tolles & Olson, and Mr. Daniel Lee, of L.A.’s Jenner & Block. See article here. 

Image of sword and shield from https://www.worthpoint.com/worthopedia/kingdom-heaven-ibelin-sword-scabbard-712278260

Image of (skeptical) United States v. Sha-Ron Haines panel from https://www.youtube.com/watch?v=akIGK_oYmIw

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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