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Judge to Victim: Watch Video of Your Own Rape or Go to Jail

Jill

This one is just plain fucked. Four young men participate in the rape of a 16-year-old girl at a house party (she’s now 20). She was unconscious, and they gang-raped her, spit on her and scrawled obscenities on her naked body with a marker. Because she was passed out, she doesn’t remember the rape itself.

But since these fine young men decided to record their endeavors, there’s a videotape.

One of the men, who videotaped the incident but didn’t have sex with the woman, has pled guilty and is going through a state-run boot camp as punishment. One of the other men fled to Albania, where he is at large.

While the woman was testifying on the witness stand, the defense wheeled out a television to play the tape. She became visibly upset, obviously not wanting to relive the experience by watching it in front of a court room full of strangers. Put yourself in her shoes for a minute: How many of us wouldn’t be upset if we were sitting in a chair in front of a room of dozens of strangers, and a tape was brought out showing us stripped naked from the waste down and sexually assaulted by two men while a third wrote on us with a magic marker?

But the judge has ordered her to watch it or be held in contempt and face jail time. Which is about as fucked up as it gets.

The defendant should absolutely have the right to face his accuser in court. He has had that right, and she has answered every question asked of her on the stand. And I don’t think anyone is arguing that the video shouldn’t be shown at all. But how does it further justice to force her to watch this video? Let her leave the room and show it. Let the defense attorney make whatever point he’s trying to make with the video. But forcing her to watch it is simply cruel.

Of course, just as problematic is this Chicago Tribune article (registration required) which, after detailing the situation, inexplicably ends the article with:

The fourth defendant, Sonny Smith, 20, of Brookfield, who operated the camera, pleaded guilty to child pornography and was sentenced to the Illinois Department of Corrections boot camp.

In another rape case in 1995, a woman who had accused then-U.S. Rep. Mel Reynolds of sexually abusing her when she was 16 was jailed for seven days after refusing to testify against him. She later recanted.

Reynolds was convicted and sent to prison but was pardoned by President Bill Clinton after serving more than 2 years.

…I don’t get it. So there is this rape case, and the fourth defendant pleaded guilty, and then did you know that there was once this other rape case that has nothing to do with this, and the accuser recanted? Totally irrelevant. And really biased. This whole situation — the trial and now the coverage — is just sickening.

Thanks to Julia and Jessica for the link.

82 thoughts on Judge to Victim: Watch Video of Your Own Rape or Go to Jail

  1. Well first let me say that when I studied journalism for my communications degree, we were told in comm 101 not to inject our opinions. All the while I was an activist, collecting newspapers like a rabid librarian, to keep up on the political landscape. Constantly what poured through every ‘objective reporting’ I came across, when it dealt with difficult sociological matters, particularly concerning women or other non-white male groups, the authors all too often seemed to feel at liberty to interject their biases and opinions. This done of course in the most sly way, so as to disguise their trampling on the journalistic code of objectivity without being caught. As for the case of reporting about women, there is no mistaking the largely apparent mysoginy or just plain ignorance among the press.

    I dropped out of the communiations program because I could quickly see that disseminating information in an objective way without inserting prejudice, was not only a lofty ideal, but one that is given short shrift. In the real world and even among classmates and professors, making controversy to gain an audience, or the deadline to ‘get the story out’ mattered more than telling the truth

    Also, I regret to say that many journalists seem to hold the highly erroneous opinion that they are great writers and thus their license with the message is justified in the realm of creative arts.

    Mike Barnicle formerly of the Boston Globe comes to mind as a perfect example of a man willing to stretch the truth or fabricate stories out of whole cloth for the acclaim and adoration he received (and his paycheck). That the Boston Globe gave him free license and never checked his stories for so long is astounding. But what is most sickening is that this man’s career in journlialism was not thwarted in the least and one might posit, that his very public firing was a move up.

    The bores who claim the press is leftie, I think are just frustrated that more reporters don’t dilute the truth to blunt its often offending nature upon the cultural powers that be.

    As for the rape case, the judge should be censored and asked explicitly to defend this bizzarre decision and record be made of his attittude and remarks for referral if and when other such brash disregard for a victim is revealed.

  2. Thankfully victims’ rights groups raised enough of a fuss that the judge backed down. And I know that the NW IL chapter of NOW will remember this come relection time. Thanks for writing about this. I doubt we’ve heard the last of it.

  3. You don’t get it? It’s just another way to get a cheap shot at Bill Clinton in connection with a sex case.

  6. I’m disturbed by the fact that some people – and I’m not talking about right-wingers (they’re not people) – are defending the judge’s (prior) decision.

    Mm-hm. I mentioned it in my follow-up.

    I get the sense that this is strictly a legal argument, to wit:

    1) Every judge has the right, generally speaking, to weigh the probative value of any given piece of evidence against other considerations–in this case, the likelihood of intimidating the victim.

    2) Every defendant has the right to a vigorous defense, and every judge must protect that right.

    3) This piece of evidence has potential probative value, albeit very slight probative value: it’s just possible that watching this tape might jog this woman’s memory or cause her to reevaluate her understanding of the events.

    4) The judge may–not must, but may–therefore rule that the probative value of this piece of evidence outweighs the damage it will do to the plaintiff.

    I would argue that since the probative value is so small and so unlikely, and the pain inflicted on this woman so certain and so extreme, that it would be right for the judge to disallow this piece of evidence. (I would also point out that you could use this same logic to force the plaintiff to undergo any number of humiliating and torturous memory exercises.) The defense may cross-examine this woman and ask questions about what she remembers of the event. They may also ask the jury to view the tape to see if the jury believes it exculpates the defendants. That should be enough.

  7. Weighing the probative value against the prejudicial value is an issue that goes to admissibility of evidence. It appears that the videotape is clearly admissible evidence and likely already admitted. What the judge has to decide is whether the defendant has the right to force the viewing of the evidence by the witness during cross examination of the accuser. I don’t see that the judge has any requirement to do so since the accuser doesn’t have to view the tape in order to be cross examined, i.e. the defense attorney can just ask a series of questions such as “the tape shows you were wearing a green dress and giving a big thumbs up, do you remember that?” or since this is cross, it would be more like, “isn’t it true that you gave a big thumbs up because you were consenting, just like the tape shows…” (I don’t know what the tape shows, this is only an example.

  8. Weighing the probative value against the prejudicial value is an issue that goes to admissibility of evidence. It appears that the videotape is clearly admissible evidence and likely already admitted.

    I didn’t mean to imply that it wasn’t a strained interpretation of probative value at best; quite the opposite.

    I think that the “evidence” in question would be the plaintiff’s reaction to viewing the tape, not either the videotape itself or her independent recollections of the event and how they might compare with the tape. IOW, the plaintiff’s attorneys are arguing that the defense wants to do this to punish and intimidate the plaintiff; the defense is arguing that, well, maybe so, but for good reason.

  9. and I’m not talking about right-wingers (they’re not people)

    You, sir or madam, are an ass.

  10. Chicago Tribune columnist Eric Zorn had a blurb about it on his blog today, and some of the comments were genuinely horrible. One woman, “Lucy,” actually said gangrape was what the girl deserved for drinking underage. The most devoted rape-apologist over there pretty much said the exact same thing, and made some noises about men’s lives being ruined “everytime a girl cries rape.” He also said she may have consented to being spit on and to having sex with all four boys because “some people are weird.” Rape-apologist woman-hating asshole! It made me sick.

    On the other hand, it was heartening that the overwhelming majority of male commenters were sickened by the judge’s decision and the people who supported his heinous decision.

  11. Apart from the propriety of forcing the victim to watch the tape, what was the defense thinking? How, in any way, would it help the case to make her watch? Surely the jury would be put-off to watch the victim’s obvious negative reaction.

    The only thing I can think of is that maybe she was somewhat moving around in the tape and the defense maybe wanted to show that she wasn’t totally unconscious. But that doesn’t even matter since she was underage anyway and it was statutory rape. A very puzzling defense.

  12. On the other hand, it was heartening that the overwhelming majority of male commenters were sickened by the judge’s decision and the people who supported his heinous decision.

    That is heartening, as is the judge’s decision to not force this woman to watch the tape.

  14. Shank, take a joke.

    Alas, I am not a person, and therefore am unable to comprehend your “humor.” I am only amused by the suffering of the proletariat.

    Also, it’s “Shankar.”

  15. To recap:

    Woman brings gang-rape charges and is ordered to view a videotape of the event or be held in contempt.

    Let’s stay on topic, shall we?

  17. Well, piny, we need to know if the woman was a human being or not before we know whether to care about her pain.

    Seriously, though, Robert: Please stop.

  18. S’your blog too, I suppose. But I very much doubt you’d exhort us to stay on topic if a commenter denied personhood to people you agreed or sympathized with, even in jest.

    That said, isn’t this the second story this month that involves young men videotaping a gang rape? Is this a disgusting, emerging trend?

  19. I wonder if that judge would have tried to force a 10 year old to watch his or her sexual assault from 4 years ago.

  20. S’your blog too, I suppose. But I very much doubt you’d exhort us to stay on topic if a commenter denied personhood to people you agreed or sympathized with, even in jest.

    You can very much doubt all you like, but that doesn’t mean you have a shred of evidence to support your belief. If and when I fail to complain about a derailed sexual violence thread on a tear about some offhand comment not remotely related to sexual violence or misogyny, feel free to bring it up. Until then, please start talking about rape.

    That said, isn’t this the second story this month that involves young men videotaping a gang rape? Is this a disgusting, emerging trend?

    Yes, yes it is, and thanks so much!

  21. OK, after reading Piny’s analysis, I can understand why prosecution wouldn’t object to this as inflammatory. Purportedly, defense is using this to undermine the victim’s credibility as a witness.

    But seriously, WTF? If while watching the victim gets hysterical crying and therefore squeezes her eyes shut and is unable to watch, the judge is going to send her to jail? On what grounds (other than the absolute judicial discretion that seems de rigueur under the Scrub regime – and – full disclaimer – I don’t know the state law in this case) does his honor have the authority to cite her for contempt?

    If it were me, I would send my nearest sympathetic relative screaming to the Times.

  22. dress and giving a big thumbs up, do you remember that?” or since this is cross, it would be more like, “isn’t it true that you gave a big thumbs up because you were consenting, just like the tape shows…” (I don’t know what the tape shows, this is only an example.

    The prosecutor will immediately object and prevail, because, not having viewed the tape, the witness has no personal knowledge of what’s on the tape, and thus cannot speak about what is on it.

    The defense appears to think the tape contradicts her on whether she was unconscious or not, which seems highly probative. It’s a terrible situation, and they should do everything possible to minimize the intimidation/shaming factor (perhaps by not allowing an audience for the cross), but the tape is the Prosecutor’s smoking gun and the defense has a right to ask the witness about what’s on it, which requires that she watch it.

  23. The prosecutor will immediately object and prevail, because, not having viewed the tape, the witness has no personal knowledge of what’s on the tape, and thus cannot speak about what is on it.

    But she can testify as to her recollections of what happened.

    The defense appears to think the tape contradicts her on whether she was unconscious or not, which seems highly probative.

    If that’s their “smoking gun,” they can show the tape to the jury and let the jury decide whether it contradicts her testimony.

  24. And one more thing. What the HELL happened to statutory rape? Don’t they have that in Illinois? Wasn’t this girl 16 when the assault occurred?

  25. But she can testify as to her recollections of what happened.

    But she can’t testify as to what’s on the tape. The whole point of impeaching a witness is to confront them with evidence that directly contradicts their claims, so the jury can see how they react and whether they can explain the contradiction convincingly. Showing the jury the tape and then pointing out whatever inconsistencies there may be just does not have the same probative value as having her directly confronted with those contradictions. You can’t introduce the video-tape as the “linchpin” (the article’s term, not mine) of your case and at the same time refuse to have your witness testify about it.

  26. You know, maybe one of you defense attorneys can clarify this for me, but if I were a defense attorney, I really can’t imagine wanting to show the accuser the tape. Hey, let’s let the jury see how traumatized and upset she is! That’ll bring an acquittal!

    Josh, probative value is not the only consideration for the admissibility of evidence. And you have to impeach a witness on their testimony–not on trying to get a reaction out of them. “You say that you didn’t move the entire time, but here on the tap you are shown sitting up and chatting” is different from, let’s show the victim the tape and see if she freaks out.

    It’s just another way to get a cheap shot at Bill Clinton in connection with a sex case.

    Isn’t there something along the lines of Godwin’s Law regarding the Clenis?

  27. She has testified as to what’s on the tape. She doesn’t remember because she blacked out. As has been pointed out previously, her testimony about the tape would amount to hearsay, which is inadmissable, and with good reason. And it woldn’t change things if the cross-examination about the tape was done without a public audience. She would still be forced to watch a tape of her own rape. There’s no good reason to do that.

    Shankar: No, two do not make an emerging trend.

  28. Josh, probative value is not the only consideration for the admissibility of evidence.

    I never claimed otherwise. I was responding to the claim that some people are making that there is minimal probative value.

    And you have to impeach a witness on their testimony–not on trying to get a reaction out of them.

    That is incorrect, at least under the FREs, which most states follow pretty closely. A witness’s credibility can be impeached by, among other things, evidence of past bad acts that demonstrated moral turpitude, which need not have anything to do with the case at bar, much less the witness’s testimony. More importantly, a witness’s reaction is often part of the impeachment: “You say you were lying down, but here you are sitting up. Well, uh, uh, I guess I sat up for a little bit, but, wait, I guess I forgot about that part. I don’t really remember.”

  29. She has testified as to what’s on the tape.

    No she hasn’t. She’s testified as to her recollection of the events. Determining if her recollection of the events comports with what’s on the tape is the whole point.

    her testimony about the tape would amount to hearsay,

    Not if she watched it.

  30. That is incorrect, at least under the FREs, which most states follow pretty closely.

    “The evidence may be presented purely to see if the witness freaks out” is not in the FRE that I’m aware. As your example makes clear, you have to be contradicting something. If the witness didn’t say she was lying down, you can’t impeach her by proving she sat up.

    The article doesn’t explain exactly how the defense attorney thought the tape impeached her testimony, as the witness here said she had no memory of the events.

  31. “The evidence may be presented purely to see if the witness freaks out”

    Here’s what I said:

    The whole point of impeaching a witness is to confront them with evidence that directly contradicts their claims, so the jury can see how they react and whether they can explain the contradiction convincingly.

    Note the absence of the words “purely,” “solely,” “exclusively,” etc. I don’t think you can deny that

    part of

    assessing a witness’s credibility is observing their reaction to evidence that contradicts their claims.

    The article doesn’t explain exactly how the defense attorney thought the tape impeached her testimony, as the witness here said she had no memory of the events.

    The article, while somewhat ambiguous, states that the defense attorney thinks the tape contradicts her on either the consent or unconsciousness issue.

  32. The article, while somewhat ambiguous, states that the defense attorney thinks the tape contradicts her on either the consent or unconsciousness issue.

    If that’s so, then why not let the jury see it and judge? Someone in another thread made the excellent point that after four years (and being (she says) drunk at the time of the assault) watching the tape is more likely to implant false memories than resurrect old ones.

    The only point here is to try to undermine her testimony by throwing in the emotional monkey wrench. IANAL, but I did think that some stuff was out of bounds.

  33. If the defense counsel wants to impeach her on the consent issue, wouldn’t it be possible to show her the fifteen seconds where she says “oooh, I really wanna have sex with a bunch of guys and videotape it!”

    But I think the point’s moot: if she’s drunk to the point of passing out, then she can’t have meaningfully consented at all.

    Sick fucks, all of them.

  34. I just can’t see, if her testimony is that she wasn’t conscious, and the tape shows her as being unconscious, exactly what impeachment value the tape would have. She hasn’t testified inconsistently with the tape, which she hasn’t seen.

    From what I understand, the defendants are claiming she consented, but that the consent wasn’t videotaped. So unless they can produce that, I just don’t see how making her watch the tape fits into the cross-examination or any impeachment.

    Josh, you don’t just get to impeach willy-nilly. The witness has to open the door by testifying inconsistently with prior testimony, or prior statements. You can impeach by bringing up prior convictions bearing on truthfulness, such as fraud, perjury or whatnot.

    It sounds like what this defense attorney is trying to do is use the tape to refresh recollection. Though why in the hell he’s trying to do that on cross (or even voir dire) when the cardinal rule of trials is that you never ask a question if you don’t know the answer, I’ll never know. Something tells me that this attorney is slightly less than competent. If he were competent, he’d have shown her the tape during a deposition.

  35. The article, while somewhat ambiguous, states that the defense attorney thinks the tape contradicts her on either the consent or unconsciousness issue.

    And doesn’t say why. Mind you, I’d hardly expect a defense attorney to say “Actually, your honor, we were kind of hoping to intimidate and embarass the witness.”

    And what zuzu said.

  36. Josh, you don’t just get to impeach willy-nilly. The witness has to open the door by testifying inconsistently with prior testimony, or prior statements.

    That’s just incorrect as a matter of law. The opening the door doctrine applies only to evidence that is otherwise irrelevant, such as character evidence. The tape could contradict her account of events and goes directly to the merits of the case. Further, the probative v. prejudice calculus, under FRE 403 at least, does not take into account trauma or embarrasment to the witness that may result.

    The argument that that the probative value of having her reconcile her account to what the tape shows is outweighed by the harm it would do to her is a plausible one, but it’s not plausible to assert that the probative value is de minimis.

    If he were competent, he’d have shown her the tape during a deposition.

    At which the prosecutor would have objected, just as they are doing now.

  37. You know, maybe one of you defense attorneys can clarify this for me, but if I were a defense attorney, I really can’t imagine wanting to show the accuser the tape. Hey, let’s let the jury see how traumatized and upset she is! That’ll bring an acquittal!

    A friend of mine brought that up and my thought was and is this–the defense is hoping that the pain of watching the tape is so great the victim refuses to go to trial and/or goes to jail and they can’t continue with the prosecution. That’s pretty standard with rape trials; even when I was pushing for prosecuting the guy who raped me, the main method was trying to get me to recant because it would be so humiliating to stand trial. I wouldn’t recant, of course, because I’m hardly a weenie, but I did crack and agree to a plea bargain once it was clear that I would be harangued and humiliated on the stand if we pushed for more.

    I understand that defense attorneys have to try everything in the book to get an individual client off, but I’m hard pressed to defend taking measures that make it so that future victims will not come forward.

  38. I’m hard pressed to defend taking measures that make it so that future victims will not come forward.

    Lawyers don’t work for future victims; they work for their clients. They’ll never forego a weapon that will advance their cause.

    Rules about this kind of thing have to come from outside the system. It won’t self-police.

  39. I went to high school with the four guys, and this has been quite the story since senior year. though i’m not excusing the judge’s actions, there is something to consider. if i’m not mistaken, a couple of years ago the girl said that the assault wasn’t against her will. i don’t know if she’s retracted that statement, but that may be something influencing the judge’s insistence on the viewing. also, if i remember correctly when the guys assaulted her there wasn’t actual intercourse- some really atrocious inhumane things were done to the girl, but perhaps that is a reason the judge thinks that viewing it may have somehow been bearable.

    oy. it pains me to think that this and david hasselhoff are the only things my alma mater is known for.

  40. Actually, defense attorneys (like all other attorneys) are subject to codes of ethics. John Grisham novels notwithstanding, ‘anything goes’ is not a synonym for ‘zealous advocacy’.

    The tape could contradict her account of events and goes directly to the merits of the case.

    Josh, presenting contrary evidence is not the same as impeachment. (Also, I’m not sure why you’re quoting the FRE. The article says the trial is in Naperville; we can look directly to Illinois’s rules of evidence.)

    Again, I’m not sure how this is supposed to impeach her. She’s apparently testified that she has no recollection of any of the events on the tape. Is the tape supposed to show that she is lying about her current recollection? Help me out here.

  41. mythago wrote:

    Again, I’m not sure how this is supposed to impeach her. She’s apparently testified that she has no recollection of any of the events on the tape. Is the tape supposed to show that she is lying about her current recollection? Help me out here.

    mythago, the tape might be seen to imply that she is lying (or not) about her current recollection, but that’s not the only point it makes for the defense. The point of the tape is not that it shows what she is thinking now, or even necessairly at the time of the event, only that it shows from the perspective of the viewer — or the boys / young men at the party — what the saw and what they likely assumed from the words and actions she took while clearly conscious.

    It apparently shows her consenting, at least being clearly conscious at the beginning of the 20-minute tape, enjoying somehow some of the attention she was getting, and not protesting at any point. Period. Did she give her consent to start what happened? I think yes, probably. You can argue that drunken consent is not consent, and that since she was 16 that this was statutory rape in any case, but that’s not what the charge is primarily based on here. She’s claiming that she was passed out and never gave consent, period.

    She didn’t seem to be very regretful about the event or allege that she was completely unconscious until she was told that a tape had been made of the event. With her camera. At the party.

    This case is a lot like the one involving Greg Haidl in Orange County, California, and a similar videotape of a drunken sex party. Maybe you are familiar with that. The case ended in a way maybe similar to the way this will end, with the three boys involved not being convicted of rape charges because they might reasonably (to them) think the alleged victim consented to sex, but not to being penetrated with a pool cue, snapple bottle, et al. That was the only charges on which they were convicted. They were not convicted of rape, just the of the “Jackass” like-and maybe inspired style jerk activity which they did after the alleged assault. Since that involved penetration with a foreign object, it was considered sexual assault. That’s how that incident ended. This incident in Napierville ended with the young men writing “slut” on her and leaving a condom on her face. Unfortunatly, that’s humiliating, but not illegal.

  42. Apparently, she’s not exactly a rape victim:

    In fact, the woman not only directed action at times but complimented penis sizes, complained about the lighting, nonchalantly took a cell phone call during the gangbang, yelled, “Get it up!” when some of the men lost their erections, called herself a slut and demanded ejaculations—in her mouth.

    She also laughed at least 27 times during the sex, moaned intensely when she wasn’t laughing and cheered the men to sexual heroics with, “Yeah! Yeah! Yeah! Yeah!”

    “I just like sex,” Moonier said at one point on the tape. “I can’t help it.”

    Source.
    Did you ever think that the reason she was forced to watch it was that the judge knew beforehand that it was a video that showed that she was committing perjury in court, not being raped? If the video corroborated her story, then these men would have been duly convicted.

  43. If she’s drunk, she can’t meaningfully consent? How about the guys she was fucking? They were drunk as hell too! I guess that’s the way feminism works today. Women who get drunk apparently are too stupid to consent to sex, but men somehow can be found guilty of rape in the same context. Such arbitrary power, why that couldn’t be a totalitarian idea, could it?

  44. I took the last part of the article (although badly written) to mean that either in fact or by claiming to not remember she is somehow recanting her original testimony or trying to get out of directly accusing them on the stand (or at least that is what the defense is claiming).

    How big of a leap is it to use the tape to have her admit that the tape shows she was concious (if it does) for some parts of the whole incident. “You’re claiming now you dont remember anything but isnt that because you dont WANT to remember now? Because you regret accusing these boys? The same way you regretted having sex with them after the fact?”

    I could see a scenario like that convincing a (bad) judge that she is lying about her recollection in order to cover other lies.

    I hope she has a really good support system in any case.

  45. MikeT-

    Read your own source. That’s a completely different case, and entirely unrelated to this one. Good try, though.

  47. Josh, presenting contrary evidence is not the same as impeachment.

    The tape has already been shown to the jury, as far as I could tell from the article. Testing her testimony by questioning her about the tape would be used for impeachment. One solution to the problem would be to exclude her testimony. If the tape is as damning as it appears that should be enough to convict. There were also other witnesses.

    She’s apparently testified that she has no recollection of any of the events on the tape. Is the tape supposed to show that she is lying about her current recollection?

    If the tape shows her conscious or talking then her assertion that she cannot remember is less plausible.

    (Also, I’m not sure why you’re quoting the FRE. The article says the trial is in Naperville; we can look directly to Illinois’s rules of evidence.)

    Because the FREs are easily google-able and most states follow them fairly closely. The only rule at play here is the basic rule of relevance, and I’d imagine that Illinois’ is the same as FRE 403. Further, any lawyers commenting on this board are more likely to be familiar with the FREs than with Illinois’ rules.

    This incident in Napierville ended with the young men writing “slut” on her and leaving a condom on her face. Unfortunatly, that’s humiliating, but not illegal

    Sounds like (illegal) battery to me.

  48. It apparently shows her consenting, at least being clearly conscious at the beginning of the 20-minute tape, enjoying somehow some of the attention she was getting, and not protesting at any point. Period.

    If this is true, then why does the defense attorney have to demand that the victim be in the room? If the videotape clearly shows that she consented then it should be grounds for acquittal, whether she sees it or not, as long as the jury sees it. No, the only reason that the defense can have for demanding that the victim see the videotape is to harass her into dropping the charges or accepting a plea bargain.

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  51. The tape has already been shown to the jury, as far as I could tell from the article. Testing her testimony by questioning her about the tape would be used for impeachment. One solution to the problem would be to exclude her testimony. If the tape is as damning as it appears that should be enough to convict. There were also other witnesses.

    You keep saying this, and then you keep falling back on FRE 403. What rule allows you to impeach a witness with extrinsic evidence when she has not testified inconsistently with her own prior statements?

  52. ginmar: Were CR and Mike talking about the same tape? I had the impression that CR at least thought that he was talking about the tape relevant to this case, though he didn’t give a source for his assertion so it’s hard to say for sure. Either way, I can’t imagine any way that showing the victim the tape could be useful to the defense except as a harassment technique. Even if it is as eggregious as the one Mike referenced is proported to be.

    The article Mike references implies that false accusations of rape are common and that men are the worse victims, etc. Well, there’s a very simple way for men to avoid being falsely accused of rape after consentual sex: keep it in your pants. If men would just keep their zippers zipped they’d never get in this kind of trouble, right? Yet I’ve never heard the argument made that men who are falsely accused of rape “brought it on themselves” or “were asking for it” or any other of the variety of statements that people make after women have been sexually assaulted.

  53. Mike and CR are talking about the same case, which doesn’t happen to be the case under discussion here, because it’s so easy to get confused between an unconscious underage girl and an adult woman who’s conscious and not only consenting but demanding.

    Oh, wait, did I say that aloud?

    You’ve just given me the idea for a post.

  54. “The prosecutor will immediately object and prevail, because, not having viewed the tape, the witness has no personal knowledge of what’s on the tape, and thus cannot speak about what is on it.”
    Yeah, you’re probably right on that, but the defense attorney can still ask about the content of the tape, as in “you sat up and gave a big thumbs up, didn’t you…” etc. I still don’t see this as an admissibility/403 issue. It’s more of the defendant’s right to confront his accuser, about which I don’t know much, not practicing criminal law.

  55. Uh, yeah, just so it’s known, even if the girl was “conscious” during part of the video doesn’t mean she wasn’t blacked out and therefore doesn’t remember any of it. Two nights ago I got rip-roaring drunk and woke up on my couch. I don’t remember how I got there, but I obviously didn’t just stumble my way there, because my glasses were fairly carefully laid down on the coffee table and I was in a semi-comfortable position on my back. It’s also clear that I wasn’t placed there by anyone else, because the only people other than me in the house were my parents, and…er…I think they might have mentioned something about how I’m not supposed to drink in the house if they had found me.

    All that to say that it would not be inconsistent with her testimony that she doesn’t remember anything even if the tape shows her to be moving and responding a bit. And no, meaningful consent can’t be given when you’re that drunk.

  56. I have a couple of question: 1) Why did the plaintiff wait 4 years before bring charges against the defendents?
    2) If she can’t remember, how did she know who to accuse?

    Julian Tebye

  57. Who said she waited four years to bring charges? The trial does not happen instantaneously after bringing charges, and there are such things as statutes of limitations.

    She knew who to accuse because they’d been bragging about making the tape.

  58. All that to say that it would not be inconsistent with her testimony that she doesn’t remember anything even if the tape shows her to be moving and responding a bit.

    True. I wonder if the prosecution is with it enough to have an expert witness testify to that effect? I’m guessing that the judge doesn’t have the insight or knowledge to realize that just because someone is twitching and perhaps moaning occasionally doesn’t mean that they’re concious (Terry Schiavo anyone?).

    It also occured to me that, IIRC, Illinois judges are elected. Is anyone here posting from the Chicago area? If so you could do worse things with your time than to organize an effort to get this bozo off the bench.

  59. C’mon, zuzu, you know it’s a feminist plot to railroad these poor innocent guys. Fess up.

  61. Part of the four-year delay is related to the fact that the defendants FLED THE COUNTRY. One is still in Albania and the current defendant is recently back from Serbia.

  62. What rule allows you to impeach a witness with extrinsic evidence when she has not testified inconsistently with her own prior statements?

    The point is to have her watch the tape and testify about what’s on it it so that the tape would not be extrinsic to her testimony. Her testimony vis a vis the tape would go to the merits and also go to her credibility to the extent it confirmed or contradicted her testimony. All I’m arguing is that that has probative value. Witnesses are asked to view documents and testify about them all the time, and not just to refresh recollection, and nobody says that doesn’t have probative value.

  63. Witnesses aren’t asked about stuff that they have no knowledge of, though. She was unconscious; she’s stated as much, so proceeding on after that is just calling her a liar over and over again. It’s like calling a doctor to the stand when you need a lawyer. They don’t have the experience.

  64. The point is to have her watch the tape and testify about what’s on it it so that the tape would not be extrinsic to her testimony. Her testimony vis a vis the tape would go to the merits and also go to her credibility to the extent it confirmed or contradicted her testimony. All I’m arguing is that that has probative value. Witnesses are asked to view documents and testify about them all the time, and not just to refresh recollection, and nobody says that doesn’t have probative value.

    No, Josh. You’re wrong. It’s the tape itself that has to be put through the probative/prejudicial analysis. It has probative value independent of its presentation to the witness, which means that it could be introduced on its own, with someone, probably the videographer, to authenticate it.

    What you’re not getting, but what we’ve been trying to tell you, is that regardless of the probative value of the tape, there is no basis to use this piece of evidence with this witness. She hasn’t testifed inconsistently with the tape — she claims unconsciousness, and apparently the tape shows that she was not conscious — so it can’t be used to impeach her. She can’t authenticate the tape itself, because she’s never seen it. The most she can do is identify herself and the other people on the tape — and that can be done through other witnesses or a stipulation. It’s not useful for refreshing her recollection, because she hasn’t said she can’t recall what happened, she’s said she never knew what happened in the first place (and again, the tape apparently shows her unconscious, so it bears her out).

    So, there’s no basis — and FRE 403 does nothing to establish a basis — for crossing her while forcing her to watch the tape. The sole value it has is intimidation — which, frankly, is a shit-stupid thing to do in front of a jury, especially when you don’t know what she’ll say because you haven’t shown the tape to her during a sworn deposition (and yes, the prosecutor would have objected at the deposition to that, but the way depositions work, he could not direct the witness not to answer unless he got a ruling from the judge).

  65. zuzu nailed it.

    The point is to have her watch the tape and testify about what’s on it it so that the tape would not be extrinsic to her testimony.

    That’s not impeaching her testimony, Josh. Impeaching would be if she testified “I remember doing X” and the tape shows her doing not-X. She testified that she has no memory of anything that happened on the tape. Again: how do you impeach “I don’t remember” with a videotape of the events she can’t remember?

    I get the feeling you’re a law student, Josh, and I don’t mean that condescendingly–but you really don’t seem to understand the difference between impeaching and refreshing recollection. And it’s true that witnesses are shown documents. But try telling a judge “We show witnesses stuff all the time!” as your basis for admissibility.

  66. Again: how do you impeach “I don’t remember” with a videotape of the events she can’t remember?

    By showing someone who is sober and conscious.

  69. That’s why you show the tape to the jury. How does showing the tape to the accuser impeach her testimony?

    Look: if another witness comes in and says “She looked sober to me,” that’s testimony that contradicts the accuser. It’s not something that impeaches her.

  71. mythago, i can try to reference my post if you like to some newspaper article, but here’s a summary of my point above which can be read as a response to “That’s why you show the tape to the jury. How does showing the tape to the accuser impeach her testimony?”

    At the beginning of the tape, she is shown flirting and partying with some guys at the party. One guy, and then another begin to have sex which includes movements on her part which might indicate she consents to and enjoys the stimulation. She becomes less responsive as the tape goes on. It’s not really clear — and I’m sure you can imagine — at what point she might be said to be “unconscious” — that’s not something any recording or testimony, for that matter, from another party can indicate.

    Should the boys have never tried to have sex with her to begin with? Sure. Should they have stopped after she became less responsive? Well, Missbrenner’s initial statement to police was that he did just that, he says stopped after she became less responsive and appeared to be passed out.

    Most of the communication between parties on the tape, and on whatever happened off the tape was probably nonverbal. The girl, and maybe some of the guys, were drunk. Any expression of nonconsent or protest would, I think, likely be nonverbal as well. It’s hard to put nonverbal gestures into words, much less into the question-and-answer format that a legal proceeding requires. So that’s why the tape is relavent to be shown in court, and portions, at least, are relavent to be shown to the alleged victim.

  72. Here, I found an article from the Chicago Daily Herald, March 18, 2005, from the trial of Christopher Robins, who was acquitted of his charges in this incident last year:

    Juror says case ‘insult not assault’
    By Christy Gutowski, Chicago Daily Herald Legal Affairs Writer
    Friday, March 18, 2005

    Their acquittal of one of the teens accused of raping a 16-year-old Naperville girl may seem shocking, but some jurors said Thursday the videotape of the sex acts made their verdict crystal clear.

    The panel deliberated for less than two hours earlier this week before finding Christopher Robbins innocent of sexual assault charges stemming from a Dec. 7, 2002, underage drinking party at an upscale Burr Ridge home.

    The 20-year-old Brookfield man is one of four young men charged with felonies. Adrian Missbrenner, who hosted the party, and Burim Bezeri, both 20, are believed to have fled the country. Sonny Smith, also 20, of Brookfield, is serving a six-month stint in prison for filming child pornography.

    Prosecutors relied heavily on the 15-minute home videotape in which they argue the drunken girl spirals into a state of unconsciousness and, therefore, cannot consent to having sex with Bezeri, Missbrenner and Robbins.

    Jurors were the only ones allowed to view the video besides the judge and lawyers. Spectators listened, but officials turned the television away. Two jurors said the tape exonerates Robbins. One woman agreed to talk at length if promised anonymity.

    “I can’t even believe the state put this on trial,” said the 44-year-old South suburban woman. “She’s a willing participant. If you had seen the tape, you’d know. That’s what basically cleared him.”

    Other than a brief view of his back, Robbins is not seen on the video, and his attorney, Robert Kuzas, argued it’s unclear if the teen is engaged in oral sex with the girl.

    The Naperville girl, now 19, testified she arrived at the party about 2:30 a.m. but can’t recall anything except taking two gulps of vodka and vomiting. She did not know the boys.

    Prosecutors and other partygoers said the girl drank more than she recalls. The use of a date-rape drug was not suggested.

    The tape is shot in three separate segments. The girl is heard making sounds and talking on the first part while having sex with Bezeri, but is less audible in part two with Missbrenner. Prosecutors said her eyes are closed and limbs listless, and he noted the boys are manipulating her legs. The juror did not agree.

    “We pretty much after the opening statements thought she was a victim and had passed out and these boys took advantage of her,” the juror said. “But that’s not what happened on the tape.

    “Whether drunk or not, she was coherent. She was moving around and able to realize what she was doing. At one point, she says ‘stop’ and he did. I felt sorry for this girl getting herself in a predicament like this, but I agree with what the defense attorney said, this was an insult, not an assault.”

    Prosecutors maintain Robbins had sex with the girl off tape after the second part after instructing the others to leave the bedroom. Forensic experts found evidence of his semen in the bedroom. Robbins said she consented, but the girl couldn’t even identify hi•in court.

    Minutes after Robbins leaves the girl, prosecutors said, the third segment is shot when the teens, including two others who hadn’t participated, take turns spitting and writing sexual slurs on the her unconscious girl’s body. She doesn’t even flinch.

    Robbins isn’t identified in the group. Prosecutors argued the girl must have been unconscious when Robbins had sex with her since it was minutes earlier, but the juror said it isn’t certain when that third segment was taped.

    One partygoer who spit and wrote on the girl testified it was minutes later, but the juror said the group did not find him too credible.

  73. I get the feeling you’re a law student, Josh, and I don’t mean that condescendingly–but you really don’t seem to understand the difference between impeaching and refreshing recollection.

    Thanks for condescending, but I’m not. And I think you’re incorrectly assuming that impeachment and contradiction on the merits are always mutually exclusive. It’s really not that difficult to understand. The tape is in evidence already. The impeachment value arises from the process of having her explain any contradictions between her testimony that she can’t remember and what is on the tape. If she can’t do so convincingly, then her credibility is undermined.

  75. I note that nobody else, including you, has deigned to provide a cite for anything. But I’m charitable. Here’s one for the proposition that impeachment and the merits are not exclusive.

    http://www.nacdl.org/public.nsf/championarticles/99mar02?opendocument

    Key quote: “Impeachment that simultaneously advances the merits of the examiner’s case represents the priciest gem of all.”

    It’s only a secondary source but Westlaw costs money.

    But I like this rule you’re proposing, that there is never probative value in testing a witness’s testimony by having them review other evidence, as long as they claim they don’t remember the events.

  76. Key quote: “Impeachment that simultaneously advances the merits of the examiner’s case represents the priciest gem of all.”

    No kidding. But you still have to have a basis for impeachment, which just isn’t present here.

    But I like this rule you’re proposing, that there is never probative value in testing a witness’s testimony by having them review other evidence, as long as they claim they don’t remember the events.

    I’m proposing no such rule.

  77. The Reynolds case is irrelevant, but the reporter may have mentioned it out of confusion over what “recant” means. In the case you’re discussing, the judge is threatening to imprison the victim unless she cooperates. That’s what happened in the Reynolds case — she was imprisoned until she agreed to testify. So possibly the reporter meant to say “she later RELENTED,” i.e., agreed to coooperate. It’s confusing because in the Reynolds case the victim DID in fact also recant (i.e. contradicted) her testimony — but if the reporter thought that “recant” means “relent”, it’s perfectly understandable.

    I don’t think the reporter was trying to imply that rape victims are liars or that for some reason we should doubt the victim in this trial because of what happened in the Reynolds case. Reynolds wasn’t pardoned because the victim recanted, and was never in any way exonerated of the crime. What happened is that BEFORE thie victim finally testified against him, she recanted a number of times under pressure from the Congressman. Unfortunately, the reporter says “she later recanted” — making it seem that it was after the trial. But again, if you read that word as “relented,” you’ll see that all that is being said is that she abandoned her refusal to testify.

  78. I guess in the hope that she’ll gasp and say “oh, THAT night! Wait, I remember that night!”

    Yes, that is what we call ‘refreshing recollection,’ as zuzu mentioned earlier. It is not the same thing as impeachment. You also need to establish that viewing the tape might assist her memory. I mean, you aren’t going to get very far with:

    Q. Would viewing the tape refresh your memory of that night?

    A. No.

    Q. Too bad, I’m going to play it anyway.

    The impeachment value arises from the process of having her explain any contradictions between her testimony that she can’t remember and what is on the tape.

    Again, you have not explained what could be on the tape that would contradict her testimony that she does not recall anything.

    And I think you’re incorrectly assuming that impeachment and contradiction on the merits are always mutually exclusive.

    Not at all. You’ve just repeatedly failed to explain what on the tape would contradict “I don’t remember.” The article you linked to doesn’t explain it, either.

    If I testify that a traffic light was red and Robert testifies that it was green, he contradicts me, but he hasn’t impeached me. If Robert produces a photograph I took of the green light, signed on the back by me, it both contradicts my testimony substantively (evidence my testimony was wrong) and impeaches me (I earlier said something different than what I am saying now).

  79. You’ve just repeatedly failed to explain what on the tape would contradict “I don’t remember.” The article you linked to doesn’t explain it, either.

    Actually, not. See comment 47.

    If the tape shows her conscious or talking then her assertion that she cannot remember is less plausible.

  80. except she became unconcious after drinking too much, so even if talking (because no one talks in their sleep right?) and conciousness was shown on the tape she could still be accurate in her plea that she doesn’t remember anything and it would still be rape unless she was shown consenting to all the acts that were performed on her, because of the booze.

  81. If the tape shows her conscious or talking then her assertion that she cannot remember is less plausible.

    And, again, that is contradictory evidence. It is not impeachment. You don’t seem to understand the difference. They are not mutually exclusive, but they are not synonymous, either. I’m really not getting why this is such a confusing concept, especially to a lawyer.

  82. A man accused of taking part in a videotaped rape of a teenager has been acquitted, a spokeswoman for the state’s attorney’s office said.

    More detail here.

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