Nevada v. Jackson: Ninth Circuit Lacked Reading Comp. Skills

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By William Peacock, Esq. on June 05, 2013 12:29 PM

Perhaps the Ninth needs a copy of Scalia and Garner's Reading Law?

Calvin Jackson had a "tumultuous decade-long romantic relationship" with the victim, which included multiple allegations of physical abuse and sexual assault. The troubles culminated in the events of the night of October 21, 1998, when Jackson surprised her at her new apartment.

She claimed sexual assault. He claimed consensual sex and admitted striking her during an argument earlier in the evening. She recanted before trial, but after being taken into custody as a material witness, reaffirmed her earlier statements and testified. At trial, she blamed the recantation on intimidation by three of Jackson's associates.

The defense's theory of the case was that the victim fabricated the sexual assault in order to control the defendant. As part of this theory, they sought to introduce extrinsic evidence of the past unsubstantiated allegations, including testimony by the investigating officers and the related police reports.

Though the defense was allowed to cross-examine the victim about the prior allegations, they were limited to cross-examination only, as Nevada state law generally precludes the admission of extrinsic evidence of "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of a crime."

Why? Nevada wants to avoid mini-trials on collateral issues.

Every rule has a loophole, however, and in 1989, the Nevada Supreme Court held that in a sexual assault case (such as this one), a defendant can, if the witness denies making allegations, introduce evidence to prove that a witness previously made fabricated charges.

That sounds applicable to Jackson, and it was. So was the requirement (which he missed) to file written notice and for the trial court to hold a hearing. He failed to file the notice, and on this basis, the Nevada Supreme Court upheld his conviction.

The Ninth Circuit granted habeas after finding that the Nevada Supreme Court's ruling deprived the defendant of his constitutional right to present a defense, and by extension, was an "unreasonable application" Supreme Court jurisprudence (the ADEPA standard).

The the Ninth's opinion relied on two major misinterpretations of prior caselaw. First, the court held that the Supreme Court's decision in Michigan v. Lucas held that a case-by-case balancing of interests between state evidence law and the defendant's rights was required.

SCOTUS's per curium thoughts?

"The Court did not even suggest, much less hold, that it is unconstitutional to enforce [the written-notice rule] unless a case-by-case balancing of interests weighs in favor of enforcement ... No fair-minded jurist could think that Lucas clearly establishes that the enforcement of the Nevada rule in this case is inconsistent with the Constitution."

The Ninth also cited two of their prior habeas grants. In each, cross-examination was limited in violation of the Confrontation Clause. But, as we all know, cross-examination is not the same as extrinsic evidence. The Ninth's characterization of SCOTUS' prior holdings as "a broad right to present 'evidence bearing on [a witness'] credibility'" was far too overbroad.

Ninth Circuit reversed. Conviction reinstated.

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