United States District Court, W.D. Washington, Seattle
ORDER ON MOTIONS IN LIMINE
S. LASNIK UNITED STATES DISTRICT JUDGE
matter comes before the Court on various evidentiary motions
by both parties. The government's relevant motions are:
“Motion to Exclude Evidence of Victims' Other
Sexual Behavior and Sexual Predisposition, ” Dkt. #
398; “Motion In Limine to Preclude
Introduction of Irrelevant Information, ” Dkt. # 421;
and “Motion to Exclude Unsubstantiated and Irrelevant
Allegations of Sexual Misconduct, ” Dkt. # 431.
relevant motions are: “Defendant's FER 412 Motion,
” Dkt. # 442; “Motion In Limine to Exclude
Testimony from S.R., ” Dkt. # 454; and “Motion In
Limine to Exclude Testimony about Certain Sexual Conduct,
” Dkt. # 455.
reviewed the filings submitted by the parties, the Court
finds as follows.
David Delay is in trial on charges of sex trafficking and
child pornography. Some of the government's witnesses,
including some alleged victims, have criminal histories and
other past difficulties that the government anticipates the
defense might introduce as evidence or raise as impeachment
material on cross-examination. To that end, the government
filed several motions seeking to preclude that evidence. The
defense also anticipates the government will introduce
evidence involving Delay's sex life or other behavior,
which the defense seeks to exclude.
parties agree on the admissibility of several pieces of
evidence, but some disagreements remain. First, the parties
disagree over whether the defense may cross-examine two
alleged victims, S.W. and J.S., about various convictions and
past difficulties as evidence of those witnesses'
truthfulness, bias, or capacity to recall relevant events.
Second, the parties disagree over whether the defense may
inquire into certain aspects of the sexual behavior of M.K.,
a named victim. Third, the parties disagree over the
admissibility of testimony from S.R., who is a witness but
not a named victim. Fourth, the parties disagree whether the
government may introduce evidence of Delay's sexual
encounters with H.N., a named victim. Finally, though not
squarely addressed in Delay's filings, the
government's motions also cover the admissibility of the
alleged victims' past involvement with prostitution.
Witness Credibility Evidence
defense seeks to cross-examine S.W. and J.S., two witnesses
who are also named victims, regarding convictions and other
difficulties in their pasts. In particular, the defense seeks
to cross-examine S.W., who is now an adult, about multiple
convictions and probation violations that occurred when she
was a juvenile. For J.S., the defense seeks to cross-examine
her about previous arrests in which she admittedly lied to
police officers, and about a dependency petition by state
authorities to determine whether J.S.'s daughter should
be removed from her custody.
Federal Evidence Rule 608, extrinsic evidence of specific
conduct is inadmissible to prove a witness's character
for truthfulness or untruthfulness, but the court may allow
inquiry into those specific instances on cross-examination if
the instances are probative of the witness's truthful or
untruthful character. Fed.R.Evid. 608(b).
past criminal convictions, Rule 609 provides that evidence of
a conviction is admissible to prove a witness's character
for truthfulness or untruthfulness if the conviction is
either for a felony or for a crime that involves “a
dishonest act or false statement.” Fed.R.Evid.
609(a)(1), (2). The latter category “means crimes such
as perjury or subornation of perjury, false statement,
criminal fraud, embezzlement, or false pretense, or any other
offense in the nature of crimen falsi, the commission of
which involves some element of deceit, untruthfulness, or
falsification bearing on the accused's propensity to
testify truthfully.” United States v.
Brackeen, 969 F.2d 827, 830 (9th Cir. 1992) (quoting
Fed.R.Evid. 609 advisory committee's note). Additionally,
if the conviction stemmed from a juvenile adjudication, it is
only admissible if, among other things, “admitting the
evidence [of the conviction] is necessary to fairly determine
guilt or innocence.” Fed. R. Evid 609(d)(4).
defense seeks to cross-examine S.W. on her probation
violations, and on juvenile convictions for forging a
driver's license, drug possession, and grand theft. S.W.
was arrested several times for violating a term or condition
of probation. The defense asserts that those violations go to
S.W.'s credibility, because she presumably made in-court
promises to abide by the probation conditions she later
violated and “[s]omeone who continuously breaks trust
with the court in regard to probation is unlikely to have
much regard for the oath to tell the truth.” Dkt. # 439
at 8. Offenders on probation may violate its terms for any
number of reasons, including substance abuse, personal
weakness, or plain bad judgment, but breaking a promise is