Legal Issues




Thelaw provides statutes and rules that provide for the interests of theplaintiff, the victim as well as the defendant. The provisions arealso given by the law in pursuance of the interests of theproceedings. To explore some of the rules and provisions, this paperwill explore the RapeShield Law and FRE 412in the interest of the victims of sexual assault, and FRE406 rule to explore its application in habits and routines. Inaddition, this paper will explore the provisions of the hearsayevidence through the FRE 801 (a) -(c) rule and explore the FRE 803(2) rule to understand the related exceptions of excited utterances.

RapeShield Law and FRE 412

TheRapeShield Law limits the ability of the defendant in a rape case tocross-examine the victim of the offense in relation to their past’ssexual behavior. The law limits the extent of cross examination bythe defendant to the extent of using the past sexual behavior of thevictim. The law bars the defendant from introducing evidence in theform of behavior, events and character that tend to use the actionsof the victim, previous to the case (Green et al, 2000). This law issignificant in the case as it seeks to protect the victim in caseproceedings.

TheFRE 412 is a provision under the Rape Shield Law that was enacted in1975 to create more privileges of the sexual offense victims. Inaddition to other privileges provided for by the Rape Shield Law, theFRE 412 provides protection to the victim against the defendant byexcluding evidence that is even relevant to the case (Green et al,2000). This makes the FRE 412 provision a significant part of the lawdue to the discussion on the relevance of the evidence provided insexual assault cases (Green et al, 2000). The value of the RapeShield Law and the FRE 412 is deemed to be significant in theapplication of their provisions to ensure a just sexual offense caseproceeding. This is because the objective and significance of theRape Shield Law and FRE 412 is to overcome the rights of thedefendant to present evidence that confronts the witness or victim.

Thecase of Summit v State Supreme Court of Nevada illustrates thesignificance of the FRE 412 and the Rape Shield Law in theapplication of the proceedings against the defendant. In the case,the defendant, Vernon Summit was accused with two sexual assaultcounts. He was charged of committing the offense on a six year oldgirl. In the case, he applied to provide evidence of the previoussexual acts by the victim. However, the court declined the evidenceand excluded the evidence on the grounds of the Rape Shield Law.According to the court, the Rape Shield Law limits the admission ofthe evidence by Summit. This is because the evidence sought to usethe actions, events or behavior of the victim in her past, prior tothe sexual assault.

Thecase of Summit v Nevada continued without the evidence that thedefendant had sought to introduce in the case. This ruling by theNevada court showed that the Rape Shield Law is a significant law inthe prosecution proceedings of a sexual violence case. (Green et al,2000). Application of the FRE 412 provision gave the foundation forthe expulsion of the evidence by the defendant. The case concludedwith the conviction of the accused, Vernon Summit as charged on thetwo counts.

Thestatues of the Rape Shield Law are relevant to the case andproceeding cases as they are founded on the two main basic rights ofthe victim. First, the Rape Shield Law statues are founded on thevictim’s right to privacy. The sexual behavior of the victim is aprivate affair, just like any other person entitled to privacy underthe basic human rights and freedoms (Green et al, 2000). Therefore,it would be a contravention of the privacy rights of the victim, ifthe defendant or any other person would obtain and use the pastsexual behavior. Therefore, the statues of the Rape Shield Law arenot only legal, but also relevant in application to a sexual assaultcase or any other case.

Secondly,the statutes of the Rape Shield Law and FRE 412 are found on thevictim’s right to be handled with respect and integrity. As a younglady, she is entitled to her integrity and it would be legally unfairto present her sexual behavior and character in the case proceedings.The details of the sexual behaviors of a person are close to theheart and it is inappropriate to expose such content. According toGreen et al (2000), the respect for these two rights gives thestatues of the Rape Shield Law the relevance in legal considerations.

Inaddition, the relevance of the Rape Shield Law in sexual offensecases such as the Summit v Nevada are also founded in the on theutilitarian principles and objectives. This gives the rightenvironment for the victims to do what is right for the law toconvict sexual criminals. The privileges by the statutes of the RapeShield Law provide the victim with the courage to come forward andpresent the case. Allowing the use of the victim’s sexual past willkeep sexual assault victims to shy away and avoid the courts whenthey are aggrieved.

Theapplication of the Rape Shield Law in the case made significance onthe outcome of the case Summit v State Supreme Court of Nevada thatsaw the defendant convicted of sexual violence. The relevance of thestatus of Rape Shield Law and the provisions of FRE 412 are based onthe legal principles of observance of basic rights of a victim. Inaddition, the application of the Rape Shield Law and the provisionsof the FRE 412 give the utilitarian objectives that allow the law totake its course and serve the aggrieved victims.

Habitand Routine Practice and FRE 406

Thelaw FRE 406 provides that the evidence in the form of a person’shabit or an organization’s routine is admissible and relevant tosustain a case in the court of law. The FRE 406 law allows suchevidence, whether corroborated or not, and with no regard with thelack or use of any other additional evidence (Green et al, 2000).According to the FRE 406 law, such routine or habit evidence isrelevant to hold a case since it can prove the conduct of anorganization or conduct of a person. The evidence gets its relevancewhen it can be used to show the lack of conformity to regular routineor habit on the disputed occasion that the case involves.

Inthe case of Weil v. Seltzer, United States Court of Appeals, theproceedings were an appeal case after the rulings in the lowercourts. In this case, the defendant, Weil was charged by Dr. AlvinSeltzer. The accuser died and was replaced by Florence Seltzer, whoentered the case as the personal representative of his estates (OpenJurist, n.d). In the case, Weil was given steroids by Dr. Seltzer asantihistamines. However, through an autopsy, the steroids weredetermined to be the cause of the death of the Weil (Open Jurist,n.d). After the two successive trials failed to solve the case, thecase was mentioned in the court of appeal.

Theissue in the case was that former patients of the doctor werepresented before the court as evidence concerning the steroidprescription, which was considered to be improper. The concern waswhether the evidence by five former patients of the doctorconstituted relevant and admissible evidence in the case (Green etal, 2000). In pursuance to the FRE 406 rule, the evidence that wasprovided in the court of law was held to be admitted improperly ashabitual avoidance. In the final ruling, evidence of habit or routinewas held to be relevant, whether it was corroborated or not.

Themost challenging thing about the FRE 406 rule is that it may bedifficult to define or describe what is meant by “character.” Therule provides an element of showing the difficult, but itsapplication is logical (Green et al, 2000). However, the rulepresents an odd declaration that fails to differentiate between theaspects of character that entails routine or habit. The evidence ofcharacter is relevant, but needs to prove a conformity trend to anaction. This means that the evidence must prove the expectedconformity of a person to the expected habit, routine of pan ofaction. This proves the actions of a person in conformity therewith.

Underthe FRE 406 rule, there are certain types of evidence that will beadmissible, especially if the evidence is based on his habituallevels. Under the law, a habit is taken to be a non-volitionalactivity that takes place with an irregularity that is invariable(Open Jurists, n.d). What makes the habit to be probative is thenon-volitional character of the person and the habit or routine perse. Sufficiency of regularity does not have to be the main elementthat defines habit instead, it is the occurrence of every instanceand the sufficiency of regularity of occurrence (Green et al, 2000).The case of Weil v. Seltzer proved this description of regularity asseen in the ruling that was held by the court of appeal.

Inthe ruling, the court did not have to consider the other previouspatients, before the participating five. This shows that theregularity of the occurrence of a habit does not have to beconsistently proven instead, it only has to be sufficient, wheneverit happens. This aspect of the FRE 406 law made it possible for thefive invariable previous patients of the doctor to be considered asadmissible evidence (Open Jurists, n.d). In addition, none of thesefive patients had ever observed the service of the doctor for otherpatients. Prior to this ruling, a witness must have had knowledge ofthe routine for them to be admitted as relevant witnesses oradmissible evidence. However, in this case, they were admitted asevidence of habit despite having had no prior knowledge of theroutine of the doctor.

Inthe application of FRE 406, it was important that the rule was madesince it gave clear guideline to the relevance of the statute. TheFRE 406 allows the admission of habit of an individual or the routineof an organization as evidence in a case. However, the FRE 406 allowsthis evidence if the opponent can prove the habitual nature of theevidence, the person responding or the routine of the organization.The proof has to show the action of the respondent to benon-conforming to the established habit or routine.

Hearsayand FRE 801 (a) -(c)

The802 rule provides guidance to the admissibility of hearsay asevidence in case proceedings. According to the rule, a statement isdeclared as hearsay evidence if it fulfills certain conditions andthe demands by the statutes (Legal Information Institute, n.d). Therule 801 (d) (1) (A) provides the qualifications of a stamen thatneed to be met to be considered as hearsay. Once a statement fulfillsthe conditions set by the rules, it can be applied to the mostrelevant purpose, pursuant to the interests of the case. In case thedeclarant denies the declaration, the existence of the statement alsoneeds to be proven with external evidence. Therefore, the hearsaystatement can be taken to be substantive evidence of its own truth.

Inthe case, the defendant, Emmanuel Farris was charged with aconspiracy to rob in addition to other charges. The main issue at thetrial was his scene identification at the trial. The prosecutionrequested detective’s information about the interrogation ofanother charged man, Gary More, accused of the same crime. Theinformation asked was whether More had given any details concerningthe case to the detectives, which the detective agreed to (LegalInformation Institute, n.d). To this point, the defendant objectedthe process and the admission of the information asked by theprosecution. The main concern was whether the information from theother charged man More was admissible, whether the objection wasrelevant.

Inthe ruling, the court overruled the objection by Farris, thedefendant. As a result of what the detective was told by More, theinvestigation was facilitated. The court established that theinformation that the detective was told and relied upon was nothearsay, but the necessary steps of the investigation process (LegalInformation Institute, n.d). Even though Moore did not testify in thecase proceedings, the information provided by the detective wassufficient enough for the court. Consequently, Farris was convictedby the court.

The801a rule defines hearsay as a statement that offers evidence inrelation to the proceedings of a case, while the declarant does notappear to court. In this case, the declarant is the person who isdeemed to have made the statements (Legal Information Institute,n.d). In addition, the 802 rule holds that hearsay is not admissibleunless proven otherwise by the federal statute or other rules thatare provided by the Supreme Court.

UnderRule 801 (d) (1) (B), statements are not held to be hearsay if thedeclarant appears in the court and is cross-examined or testifies inthe case. A statement cannot be hearsay if the statement is notconsistent with the declarant is offered to rebut his statement oroffered an implied charge that he had fabricated or acted improperly.This means that such statements should not be made under duress orany influence that directs the knowledge of the declarant about theuse of his statements in the case proceedings.

Accordingto rule 801d, a statement cannot be hearsay if it opposes thestatements of another witness, or the declarant himself as thedeclarant. Moreover, the statement cannot be considered hearsay if itis proven that it was made by a person with a working relationshipwith the accused or defendant. If a statement is offered against aparty and is being given by the party himself, then it is notconsidered as hearsay. In addition, a statement is not hearsay ifgiven by a conspirator and is proven that the statement was given asa part of an organized plan to use it as evidence.

UnderRule 801 (d) (1) (B), prior statements are not considered to behearsay even if they are proven to be consistent with the hearsaystatement. In addition, party admissions under the rule 801 (d) (2)should be owned by the declarant. This requires that the personrelying on the declaration to prove that the declarant needs to ownup to the statement he or she provided. Under this rule, theimportance of understanding the statement and the circumstances thatthe declaring said it is critical to its admissibility as hearsay(Legal Information Institute, n.d). This is because verbal assertioncan fall into the category of statements and needs to be consideredon their admissibility to fit the condition

Therule 802 provides legal guidelines and frameworks that guide theadmissibility of hearsay evidence. The rule provides laws thatdetermine the definition of statements that entail hearsay and howsuch statements can be used as evidence (Green et al, 2000). The 802rule also provides the guidelines that determine the statements andcases where such statements do not constitute statements that can beadmissible as hearsay. The rule provides its provisions and statutesin different parts from (a) to (c) that define hearsay statement,statements that are not hearsay, and the legal definitions of thesame.

ExcitedUtterance and FRE 803 (2)

The803 (2) rule provides legal provisions that guide the admissibilityof the excited utterances in court. The rule 803 provides theexceptions to hearsay evidence, but the provisions of the 8 rulefocus on the excited utterances (Legal Information Institute, n.db).The rule allows that some utterances can be considered as relevantevidences in a case even though their declarants are in an excitedcase. The excited utterances rules are founded on the assumption thatthe excitement of the statement increases the level of thereliability of the evidence (Conti &amp Gitnik, 1999). Therefore,there is an expectation that the excited statements are not as aresult of the lie, and that there is no reason for lies.

Inthe case, the plaintiff Donovan family sued the City of Dallas afterthey were involved in an accident that was caused by a faulty roadsign. The road sign was a stop sign that had been knocked over. Thecourt found out that a third party had knocked over the red stopsign. This meant that the defendant was only liable to the charges ifthey had failed to replace the stop sign within a time that could beconsidered to be reasonable, and after a prior notice. In the case,William Backhaus, a witness testified that a woman had driven thesame route just a few moments after the accident occurred. After shewitnessed the accident, she was excited and terrified. It is in thisstate that she had indicated how she had given notice to the city ofDallas that the sign had been knocked. The court admitted thestatement by the woman as evidence in the case. Consequently, thecourt found the City of Dallas liable and ruled in favor of theplaintiff.

Thecourt also considers factors of reliability or non-reliability ofstatements as either excited or non-excited statements. The factorsconsidered are the non-exclusivity factors that are considered withno single factor as the specific determinant (Conti &amp Gitnik,1999). In the case of City of Dallas v. Donovan, the court had toconsider the circumstances that the woman had faced during theaccident and determine the admissibility of her statement at the time(Green et al, 2000). The court found out that the woman was sincerelyat a state of shock and was feeling for the Donovan family in thestate they were in. This means that the court has to takeconsiderations of the prevailing circumstances before declaring astatement admissible as an excited state.

Theexception to the hearsay rule under the 8 rule is a type of exceptionwhere evidence is admitted in the courts without a distinctiveconsideration of trustworthiness (Stonefield, 2011). This means thatcourts base their judgments on their belief that some exceptions tohearsay are founded on the judicial system. This is because excitedutterances are considered to be naturally trustworthy because of thestate of the declarant of such statements (Legal InformationInstitute, n.db). The state of the declarant is considered to be in athought system that cannot be able to lie or give a fabricatedaccount of their opinion or the events. Therefore, excited utterancestend to circumvent the limitation of hearsay, but must be sufficientand consistent with the circumstances in the case.

Theconsideration of the trustworthiness of the hearsay evidence was notconsidered in the ruling by the City of Dallas v. Donovan. In thiscase, the court heard the evidence of the witness, William and didnot further question or investigate the honesty of the witness. Suchconsiderations would introduce limitations that would render theevidence irrelevant to the case (Stonefield, 2011). For instance, thecity of Dallas had indicated that the woman being referred in thecase had not given them notice before, regarding the broken down stopsign. The case proceeded without the request of the woman to come andtestify to the court. This could not have worked since it could haverendered the hearsay evidence inadmissible. According to hearsaystatutes, the statement could not be used as evidence if thedeclarant of the case could be cross-examined.


Inthe interest of the plaintiff and the proceedings against thedefendant, the law provides important provisions and rules as well asexceptions. The cases reviewed in this paper sought to understandthese statutes and exceptions in relation to their application in theproceedings. The provisions of the law in relation to Rape Shield Lawrule excludes any evidence of past sexual behavior provided inrelation to a rape victim. The law also allows use of the habits ofan individual or organizational routine as evidence, if it provesnonconformity to the routine. In addition, the law provides the useof hearsay evidence and is admissible in a case. Finally, the lawprovides exceptions to the application of the hearsay evidence toaccommodate the relevance of excited utterances.


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Green,E. D., Charles R. Nesson, Peter L. Murray. (2000). Problems,Cases, and Materials on Evidence.New York: Aspen Law &amp Business

LegalInformation Institute, N.d. Rule 801. DefinitionsThat Apply to This Article Exclusions from Hearsay.&lt 8, 2014

LegalInformation Institute, N.d. Rule803. Exceptions to the Rule Against Hearsay.Retrieved From, &lt 8, 2014

OpenJurists, n.d, 873F. 2d 1453 – Weil v. Seltzer Md.Retrieved From,&lt July 8,2014

Stonefield,S. (2011). TheFederal Courts Law Review.Volume 5, Issue 1, Retrieved From, July8, 2014