"A dangerous bend in an ancient road": the use of similar fact evidence for corroboration.

AuthorSanders, Richard J.
PositionFlorida

A line of recent Florida cases authorizes the use of similar fact evidence to corroborate the victim's testimony in child molestation cases. This article concludes that the logic of these cases is flawed, because the only way such evidence could be corroborative is through an impermissible inference of bad character or propensity.(1) However, the results in these cases are arguably correct, both as a matter of policy and of logic (although not the logic expressed in the opinions). The problem here is that, unless these cases are rethought, their logic could expand to other types of cases and the general limitation on the use of propensity evidence could become meaningless.

To understand the problem, we must begin with basics.

Propensity Evidence and Similar Fact Evidence

"Similar fact evidence" is a form of propensity evidence. The basic rule of propensity evidence is as follows: "Evidence of a person's character or a trait of his character is inadmissible to prove that he acted in conformity with it on a particular occasion.... "(2) Similar fact evidence is admissible "when relevant to prove a material fact in issue ... but [not when] the evidence is relevant solely to prove ... propensity."(3)

The problem with propensity evidence is not a lack of logical relevance; such evidence "is always essentially relevant to show the probability of the accused's doing or not doing the act charged.... "(4) Rather, such evidence is excluded because it is not legally relevant. There are two problems here: 1) Inferring propensity from acts, or acts from propensity, is a weak logic; and 2) focusing on the prior acts may lead to verdicts based on improper considerations.(5)

To be admitted properly, similar fact evidence must be logically relevant to a material issue by proving something other than propensity. It is not enough to ask simply if the proffered evidence is relevant; the answer invariably will be yes. Propensity evidence is always logically relevant to prove a material issue. This is because propensity is not, in itself, a material issue; it is an intermediate inference in a chain of inferences between the proffered evidence and the ultimate material issue. We prove propensity in order to circumstantially prove conduct on a particular occasion. In a given case, this can always be phrased in terms of a material issue: Propensity can be logically relevant to prove the defendant committed the charged offense ("identity"); that he acted with criminal intent and not in good faith or mistakenly; or any number of other ultimate material issues.

Thus, when considering the admissibility of similar fact evidence, "[propensity] may not be used to establish any link in the chain of logic connecting the uncharged offense with the material fact. If no theory of relevancy can be established without this pitfall, the evidence ... is simply inadmissible.(76)

Similar Fact Evidence in Molestation Cases

Courts have long struggled with the question of whether to admit similar fact evidence in child molestation cases. Such cases present unique problems, particularly when they occur in a family-type setting. Because of these problems, the usual theories for admitting similar fact evidence do not generally apply. This in turn indicates that similar fact evidence would rarely be admissible in such cases.

However, the problems with prosecuting these cases, coupled with the unspoken assumption that there is something unique about the propensity to engage in this type of behavior--that prior acts of this type are a much better predictor of future acts than other types of acts--combine to exert pressure on courts to find theories for admitting similar fact evidence. Many courts have allowed similar fact evidence to prove some type of "pattern of conduct" or "common scheme or plan," even though these admissibility theories are based on little more than a thinly disguised propensity logic.(7) Courts have also allowed such evidence to prove such things as "intent," "motive," "opportunity," and "absence of mistake," even though it is not clear why those things were legitimate material issues in the cases, or how the similar fact evidence proved such things, other than by proving propensity.(8)

Huering, Rawls, and Saffor

In 1987, the Florida Supreme Court addressed this problem in Huering v. State, 513 So. 2d 122 (Fla. 1987). The court first asserted that similar fact evidence "must meet a strict standard of relevance[:] The charged and collateral offenses must be not only strikingly similar, but they must also share some unique characteristic or combination of characteristics which sets them apart from other offenses[, and] the evidence must be relevant to a material fact in issue.... "(9) The court then asserted:

Cases involving sexual battery committed within the familial context present special problems. The victim knows the perpetrator, e.g., a parent, and identity is not an issue. The victim is typically the sole eyewitness and corroborative evidence is scant. Credibility becomes the focal issue. In such cases, some courts have in effect relaxed the strict standard normally applicable to similar fact evidence. The courts have allowed evidence of a parent's sexual battery on another family member as relevant to modus operandi, scheme, plan, or design, even though the distinction between sexual design and sexual disposition is often tenuous. We find that the better approach treats similar fact evidence as simply relevant to corroborate the victim's testimony.... (10)

The post-Huering district court cases struggled to decipher Heuring's meaning. Many different opinions emerged.(11) Two main questions were identified.

First, is striking similarity a threshold requirement for all similar fact evidence, regardless of the issue that evidence is used to prove? If not, if Heuring "relaxed" some "standard," what standard was relaxed?(12)

Second, what is the significance of the element of familial context? The problems Huering notes about prosecuting molestation cases also apply to many nonfamilial cases. Further, in today's society, where the traditional family unit seems more the exception than the rule, what exactly is a familial context?

These questions came to a head in two cases in 1993: Rawls v. State, 624 So. 2d 757 (Fla. 1st DCA 1993), quashed, State v. Rawls, 649 So. 2d 1350(Fla. 1994), and Saffor v. State, 625 So. 2d 31 (Fla. 1st DCA 1993), quashed, 660 So. 2d 668 (Fla. 1995) both of which eventually went to the Florida Supreme Court. The various opinions in these cases illustrate the difficulties in interpreting Huering.

Rawls raised two issues: Was the similar fact evidence properly admitted and, if so, was it error to instruct the jury that this evidence could be considered for corroboration? The district court held that, although the evidence was not admissible under Huering (because the charged offense did not "ar[i]se within a familial or custodial setting"), the evidence was nonetheless admissible because "the charged [and] collateral offenses were strikingly similar[, and] the evidence was relevant to prove a material fact in issue, i.e., opportunity, plan, and/or absence of mistake or accident.(13) However, the court said the corroboration instruction was reversibly erroneous because "Huering only authorizes use for corroboration in a familiar or custodial situation [and] this erroneous instruction ... inform [ed] the jury that similar fact evidence was admissible for the purpose of vouching for the credibility of the victim's testimony; a result which is clearly contrary to established case law."(14)

Saffor was an en banc decision in the district court that generated a certified question: "What is the correct standard [for] determining the admissibility of [similar fact] evidence in [molestation] cases ... within the familial context?"(15) The sole issue in Saffor was whether the similar fact evidence was properly admitted. The district court split 7-6 on this issue.

The majority held the similar fact evidence was admissible because Huering had relaxed the striking similarity requirement and allowed similar fact evidence for corroboration "because it demonstrated ... `depraved sexual propensity'[:] the fact that the perpetrator has acted in a similarly depraved fashion in the past is predictive of his actions at other times."(16)

The dissenters said Huering did not authorize similar fact evidence to prove "depraved sexual propensity," and found that evidence was inadmissible in Saffor's case because "the charged and collateral offenses do not even share a `general likeness'.... "(17) The dissenters concluded that some degree of similarity was still required because, if the charged and collateral crimes "share a unique characteristic or set of characteristics, [then the similar fact evidence] bolsters the credibility of the [victim], not [by] prov[ing] propensity..., but because it is unlikely that the victim ... could have fabricated a version of events which shares unique characteristics with the collateral crime."(18)

Both Rawls and Saffor went to the Florida Supreme Court.

In Rawls, the court agreed with the district court that, although the similar fact evidence was not admissible under Huering, it was nonetheless admissible because the striking similarity requirement was met and the evidence was relevant for corroboration. Based on this conclusion, the court held the corroboration instruction was proper.

The court said the similar fact evidence was not admissible under Huering because Huering was limited to "familial context" cases and Rawls was not such a case.(19) The court noted that determining familial context "must be done on a case-by-case basis."(20) Although "[c]onsanguinity and affinity are strong indicia," these things "are not necessary"; further, "the defendant and victim need not reside in the same home.(21) Noting "[a] legitimate custodial relationship would be the equivalent of a familial...

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