A Troubling News Tidbit:

Today's N.Y. Times reports:

The lawyer for James Barbour, a Broadway actor accused of sexually molesting a young woman in 2001, when she was 15 and he 31, was barred yesterday from setting up a hot line asking men to come forward with accounts of being falsely accused of sexual harassment by the accuser in this case, who is now 20. The lawyer, Ronald Fischetti, said in State Supreme Court that the district attorney had set up a hot line soliciting other claims against his client, and that he wanted to turn the tables. But Justice Micki A. Scherer denied his request, and ordered both sides not to discuss the case.

This strikes me as posing both First Amendment and Sixth Amendment problems. I'm not an expert on this corner of First Amendment law — I know judges have often been seen as having substantial power to restrict the speech of ligitants, including criminal defendants, as well as their lawyers. Some restrictions on lawyers have been generally upheld by the Supreme Court in Gentile v. State Bar (1991), following a longstanding tradition of treating lawyer speech about pending cases as especially subject to judicial supervision. But even Gentile doesn't hold lawyer speech to be categorically unprotected, and I'm not sure that this sort of speech would be punishable under Gentile.

Moreover, while some courts have extended the holding to the litigants themselves, including defendants (who, unlike civil plaintiffs or prosecutors, can't be seen as having voluntarily incurred some obligations in exchange for some benefit, such as a government job or access to the court system). It seems to me there's no constitutional justification for any such speech restriction: Even if Barbour's lawyer may be barred from engaging in such a search, Barbour's friends or business associates should be free to do this, and pass the information along to Barbour and his defense team. On the other hand, I should warn readers that I haven't read much of the lower court caselaw on the subject (and there is a good deal of such caselaw), so my opinion here is somewhat tentative.

As to the Sixth Amendment: The defendant seeks information that might prove exculpatory to him. True, seeking this information may well be quite annoying to the complainant (even if the complainant has never falsely accused anyone of sexual harassment before, the public solicitation for such stories may cast her veracity in doubt with some), and may discourage future complainants from coming forth. But I don't see that as an adequate justification for keeping the defense from discovering important exculpatory evidence, whether or not the prosecution has sought comparable evidence on the other side.

But I'd love to hear from readers who know more than I do about this subject — both more about the facts of this incident, and more about this area of the law.

Jerry (mail):
As to the 6th Amendment claim: If his defense is so based on attempting to show that the accuser is not credible, then his need for the information the hotline provides might well become necessary to his defense. If the evidence that this hotline provides has sufficient guarantees of trustworthiness, then it could be a due process violation to not let him present this evidence (Chambers v. Mississippi).
12.21.2006 5:03pm
Dave Hardy (mail) (www):
I could see a major due process problem here ... isn't a hotline, and attendant publicity, just an efficient way of gathering the evidence that you might get by using an investigator? If so, barring it is the equivalent of forbidding a defendant to investigate a defense. Uh....

(If I was the defense counsel, I'd be more worried that the judge *grant* my motion. If potential jurors know you set up a hotline for false accusations, and then hear of none during the trial (perhaps there were a few, but excluded as collateral impeachment), they'd assume there were none, and that the defense was blowing smoke.
12.21.2006 5:50pm
Jerry (mail):
"I could see a major due process problem here ... isn't a hotline, and attendant publicity"

Many states have "rape shield" laws that provide a high bar for evidence of an accusers sexual habits. Federal Rule 412 is an example. The judge might feel that this evidence, even if gathered, would not be admissible anyway. For it to be a due process problem, the evidence has to be trustworthy and necessary to the defendant's defense (necessary in a strict sense of the word).
12.21.2006 6:04pm
Ken Arromdee:
Many states have "rape shield" laws that provide a high bar for evidence of an accusers sexual habits.

I don't think "making false accusations of sexual harassment", which is the kind of information the guy is trying to get about the accuser, is a sexual habit. He's not trying to find if his accuser is sleeping around.
12.21.2006 6:29pm
Paul Johnson (mail):
No rape shield law protects an accuser against impeachment based on false claims of sexual abuse. Those questions go directly to credibility, and not to sexual conduct.
12.21.2006 6:30pm
Nathan_M (mail):
Would the evidence of "false accusations" be admissible anyway? Unless the complainant admits they were false I would think they would be covered by the collateral fact rule, and be inadmissible. It seems like a cheap publicity stunt and attempt to bias the jury or embarrasses the complainant rather than an honest attempt to get exculpatory evidence.

(For non-lawyers, the collateral fact rule is a rule of evidence which prevents calling evidence intended to impeach a witness's answers to questions that are tangential to the case. For example, if in this case the complainant testified on cross-examination that she did not own a blue car, the defence could not call witnesses to testify that she did. The logic behind this rule is that even where a witness's credibility is relevant, admitting evidence like this would make trials much longer and more complicated than necessary, and confuse the trier of fact by requiring them to decide potential complicated and contested issues that aren't relevant to the case.

In a case like this, the problem with evidence of a previous false allegation (if any exists) is that admitting it would effectively require the jury to decide two cases, the witness's and the defendant's. Even if the previous allegation had gone to trial (which obviously isn't the case, because then the lawyer could find the record of it very easily), an acquittal would not be helpful to the jury, because the fact that the prosecutor could not prove the allegation beyond a reasonable doubt does not suggest it was false.)
12.21.2006 6:56pm
Nathan_M (mail):
One further point. I imagine people will wonder why the DA would look for other allegations made against the accused if what I posted about the collateral fact rule is true. Wouldn't the collateral fact rule prevent it from using the allegations against the defendant at trial?

The answer is yes, it would. But there is another rule of evidence called the similar fact rule. This allows, subject to rules I won't get into here, prosecutors to introduce evidence that the accused committed crimes similar to what he is accused of at trial. So the evidence the DA is looking for might be admitted under this rule, but there is no equivalent exception for allegations the defence makes about the complainant.
12.21.2006 7:15pm
Tom Holsinger (mail):
Looks like a good move by defense counsel. It may be that the prosecution's so-called victory here will be fatal - I can see an argument that, if the ruling is overturned, the delay in getting the defense hotline operational is prejudicial. I'd make that argument.
12.21.2006 8:01pm
BGates (mail) (www):
The tele-phone? What is this, 1886? Seems like an ideal job for a blog.

Though it might be tough to tune the spam filter if the comments you're after actually concern sex with a 15-year old girl.
12.21.2006 8:37pm
Setting up a hotline is an obvious publicity stunt, albeit a clever tactic. The defense lawyer obviously wants to get out in the media the notion that this complainant has made false complaints in the past - so many, in fact, that a hotline must be set up to process them. But the way it's framed does, to my eye, create a non-trivial Sixth Amendment issue. Other criminal defense lawyers are surely taking notes.
12.21.2006 10:47pm
Greg D (mail):
In a case like this, the problem with evidence of a previous false allegation (if any exists) is that admitting it would effectively require the jury to decide two cases, the witness's and the defendant's. Even if the previous allegation had gone to trial (which obviously isn't the case, because then the lawyer could find the record of it very easily), an acquittal would not be helpful to the jury, because the fact that the prosecutor could not prove the allegation beyond a reasonable doubt does not suggest it was false.)

I would think that a pattern of making unprovable allegations against other men (if they were provable, why hadn't the other men alrady been convicted?) would, in and of itself, be exculpatory for te defense.

And I agree w/ Tom, this seems like an excellent matter for appeal.
12.21.2006 10:52pm
That Lawyer Dude (mail) (www):
Nathan, The defense attorney only need a good faith basis for asking the questions. If the alleged victim denies them and yet in denying them appears to be lying, the jury could discount all or some of her testimony. The court here is wrong and hopefully someone will heed the suggestion above and set up the hotline for the defendant if for no other reason than to tell the court that its decision is too restrictive and smacks of the onesidedship we see over and over again in sex cases.
12.21.2006 11:19pm
none (mail):
The state court could be laying the grounds for a federal court to grant habeas. The Compulsory Process Clause of the Sixth Amendment provides an accused with the right to "compulsory process for obtaining witnesses in his favor," U.S. Const. amend VI, a crucial part of the Constitution's more basic guarantee of "a meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S. 479, 485 (1984). In Rock v. Arkansas, 483 U.S. 44 (1987), the Supreme Court explained that the defendant's right to present a defense at trial trumped not only "arbitrary" state procedural rules, but also those "disproportionate to the purposes they are designed to serve." It is clear that the defendant's right to present evidence is not absolute, and that the State may place reasonable limitations on the introduction of evidence in criminal proceedings. See, e.g., United States v. Scheffer, 523 U.S. 303 (1998) (holding that the proscription against the introduction of polygraph examination results contained in Military Rule of Evidence 707 did not violate the Due Process Clause). However, the "the right to present . . . witnesses to establish a defense" is clearly established as "a fundamental element of due process of law." See Washington, 388 U.S. at 19. State rules must yield to this fundamental right when they "plainly interfere[] with [the defendant's] right to defend against the State's charges," Chambers, 410 U.S. at 298, particularly when such rules are "disproportionate to the purposes they are designed to serve." Rock, 483 U.S. at 56.
12.22.2006 8:33am
markm (mail):
Rape shield laws are often interpreted by the courts to block evidence that goes to the credibility of the complainant as well as her sexual behavior. This sure looks like a due process violation to me, but if we follow the usual rules of evidence, then no witches few sexual harassers/molesters/rapists will ever be convicted - as that fine old manual for medieval investigators, The Witches Hammer, said.
12.22.2006 9:58am
Houston Lawyer:
Speaking of rape shield laws, shouldn't we have a law prohibiting the disclosure of allegations of rape against someone. In the Duke case, we have all seen the charges against the defendants, who appear to be innocent, but we haven't seen the name of the accuser, who appears to be the guilty party.
12.22.2006 11:12am
Why bother with a trial at all? A woman makes an accusation against a man, let's get on with th excution, already.

That's not quite how the system is set up, but it's pretty close.

(That's not to say that rape is OK - having known a few women who were raped, I'd personally put the penalty for it second only to murder. But then, having seen what false accusations can to do a man, I'd put the penalty for false accusation pretty high on the list, too.)
12.22.2006 11:35am
Justin (mail):
I've always been amused by one aspect about discussions involving the theory of sexual crimes: liberals all of a sudden find the concept of victim's rights credible, and find sympathy with prosecutors, whereas conservatives all of a sudden remember due process and the presumption of innocence.

I understand the complexity is nuanced, and the hypocracy isn't as simple as it all seems (rape, historically, was an affirmative defense to adultery, and not a crime in and of itself). But it does sort of feel like bizarro world.
12.22.2006 11:53am
Eugene Volokh (www):
Justin: I agree that the subject does in some measure cause some people to switch sides on criminal justice questions, which is one reason I teach it in criminal law -- it's always helpful to bring students out of their knee-jerk responses.

But I'd never heard the assertion that rape was an affirmative defense to adultery, and not a crime itself. Among other things, a man's having sex with an unmarried woman wasn't adultery (unless I'm mistaken, originally adultery focused solely on the woman's marital status, not the man's, so a married man / unmarried woman sexual incident wasn't adultery), yet unless I'm mistaken it would be rape if it were forced. Can you point me to some source for this? Thanks!
12.22.2006 12:23pm
PDXLawyer (mail):

Justin's comment about rape not being a crime historically is incorrect. See 4 Blackstone 211 et seq, which recites English law from the Saxon forward. There was a brief period in English law when rape was not a felony (that is, not punishable by death, merely imprisonment) but that lasted only 10 years, during the reign of Edward I.
12.22.2006 2:22pm
R. G. Newbury (mail):
Surely there could also be an argument by the defendant that the restriction on his setting up a hotline is a restriction on his First Amendment free speech rights? (The Court may have powers to restrict certain actions by counsel, as officers of the Court.)
Or would that be considered a 'subset' of the Due Process argument..?
12.22.2006 3:52pm
Justin (mail):
Apologies if what I stated was incorrect - what I was stating was what was taught to me in first year Criminal Law, several years ago. I don't remember what source my Professor was teaching from, and I simply assumed it to be true.
12.22.2006 4:38pm
Michael Kochin (www):
On rape as a defense against charges of adultery see Deuteronomy 22:23-27. In the law of Deuteronomy rape of an unaffianced girl is a tort, not a crime, as per 22:28-29.

Classical Athenian law did not distinguish between rape of a married woman and adultery, and the laws addressed only the punishment of the male, leaving the treatment of the wife up to her husband, seemingly. I cannot recall any legal discussions of rape of unmarried women.

Judging by what I see in the newspaper, contemporary Sharia regimes do not allow rape as an affirmative defense to charges of adultery and fornication.

Could someone comment on the category of rape in Roman law, the laws of Mani, and the laws of Hammurabi?
12.24.2006 1:34am
Respondent (mail):
While Jewish law, permitting polygamy, inherently couldn't view sex by a married man with a woman other than his wife as adultery, the European codes based on Christian ideas of morality equated the two.
12.25.2006 12:24am