Judd v. Rodman, 105 F.3d 1339 

U.S. Court of Appeals for the Eleventh Circuit

1997

Chapter

9

Title

A Return to Relevance II:  Character and Habit

Page

407

Topic

Rule 412

Quick Notes

Judd contracted genital herpes following a sexual relationship with Rodman.  During discovery, Rodman asked numerous questions about Judd's prior sexual history, employment as a nude dancer, and breast augmentation surgery.

Expert Testimony Rodman Used an Expert to talk about Gential Herpes

o         Expert testimony revealed that the herpes virus can be dormant for long periods of time and the infected person can be asymptomatic.

Court - Holding

o         Given the evidence of (breast augmentation, prior sexual history, and nude dancing) was probative value that substantially outweighed any prejudicial effect.

Rule 412 Discussion

o         Fed.R.Evid. 412(a)(1)

o    The rule provides that "evidence offered to prove that any alleged victim engaged in other sexual behavior,"

o         Fed.R.Evid. 412(a)(2)

o    "evidence offered to prove any alleged victim's sexual predisposition,"

o         Both  412(a)(1) and 412(a)(2) are generally inadmissible in civil cases.

Rule 412(a) Engaged in OTHER sexual behavior

o         Provides that "evidence offered to prove that any alleged victim engaged in other sexual behavior" will generally be excluded.

Rule 412(b) Exception Probative Value

o         Provides an exception to exclusion when the "probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party."

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

o         Whether FRE412 bar sexual behavior (having sex with others, nude dancing, breast augmentation, prior sexual history) when the probative value substantially outweighs its prejudicial effects?  No, evidence is not barred.

Procedure

Trial

o         United States District Court for the Northern District of Georgia, which granted judgment in favor of appellee basketball player in an action alleging that appellee wrongfully transmitted genital herpes to appellant

Appellant

o         Affirmed.

Facts

Discussion

Key Phrases

Rules

Pl - Judd

Df - Rodman

Contracted Herpes

o         Judd contracted genital herpes following a sexual relationship with Rodman.

File Suit

o         She subsequently filed a complaint against Rodman alleging several causes of action related to her contraction of genital herpes: tortious transmission of a sexual disease, battery, fraud, and intentional infliction of emotional distress.

Discovery

o         During discovery, Rodman asked numerous questions about Judd's prior sexual history, employment as a nude dancer, and breast augmentation surgery.

When Overturning Evidence

o         We overturn evidentiary rulings only when the moving party has proved a substantial prejudicial effect.

Rule 412 Discussion

o         Fed.R.Evid. 412(a)(1)

o    The rule provides that "evidence offered to prove that any alleged victim engaged in other sexual behavior,"

o         Fed.R.Evid. 412(a)(2)

o    "evidence offered to prove any alleged victim's sexual predisposition,"

o         Both  412(a)(1) and 412(a)(2) are generally inadmissible in civil cases.

Exception

o         Rule 412(b)(2)

o    Evidence of sexual behavior and predisposition which is otherwise admissible if "its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party."

o         Note (involving rape and sexual harassment)

o    To date, Rule 412 has been applied only to civil cases involving rape and sexual harassment.

o         Sexual Transmitted diseases had NOT been determined

o    Thus, the applicability of Rule 412 to cases involving transmission of a sexually transmitted disease has not been determined yet by any court.

Circuit Courts Discussion

District Court Judge

o         Did not think 412 applied to STDs

o         The court ordered a motion in limine.

Court Need not decide if 412 applies to STDs.

Court 412 Analysis (Breast augmentation, prior sexual history, and nude dancing)

o         The district court said Judd waived her right based on 412 to the admissibility of (Breast augmentation, prior sexual history, and nude dancing) evidence, because she did not properly OBJECT at trial.

Prior Sexual History Discussion

Judd Contends Prior Sexual History

o         Judd contends that admission of evidence of her prior sexual history warrants a reversal of the judgment against her.

Court To find reversal

o         To find error warranting reversal,

1.  Judd NEEDED to make a timely objection
2. That a substantial right was affected.

Rule 412(a) Engaged in OTHER sexual behavior

o         Provides that "evidence offered to prove that any alleged victim engaged in other sexual behavior" will generally be excluded.

Rule 412(b) Exception Probative Value

o         Provides an exception to exclusion when the "probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party."

Judd contends -  The balancing test of Rule 412(b)

o         Evidence of her prior sexual history should have been excluded because its probative value failed to outweigh substantially the unfair prejudice toward her.

Expert Testimony Rodman Used an Expert to talk about Gential Herpes

o         Expert testimony revealed that the herpes virus can be dormant for long periods of time and the infected person can be asymptomatic.

Court Prior Sexual relationships was highly relevant to Rodman's liability

o         Consequently, evidence of prior sexual relationships and the type of protection used during sexual intercourse was highly relevant to Rodman's liability.

o         The court did not abuse its discretion in admitting evidence of Judd's prior sexual history.

Employment as a Nude Dancer Discussion

Judd contends Exclude nude dancing

o         Judd contends that evidence of her prior employment as a nude dancer should have been excluded under Rule 412(a)(2).

o         Because it was offered to prove her sexual predisposition.

Objected to motion in limine

o         Judd objected to the admission of this evidence both in a motion in limine and at trial and, thus, preserved the issue for appeal.

o         She fails, however, to show that a substantial right was affected by the admission of the evidence.

Court Could have admitted nude dancing

o         Finding that the probative value substantially outweighed the prejudicial effect.

Judd felt dirty after she contracted herpes

o         Judd testified that she felt "dirty" after she contracted herpes.

Court Judd continued her nude dancing

o         Judd's employment as a nude dancer before and after she contracted herpes was probative as to damages for emotional distress because it suggested an absence of change in her body image following the herpes infection.

Court - Holding

o         Given the evidence of (breast augmentation, prior sexual history, and nude dancing) was probative value that substantially outweighed any prejudicial effect.

o          Accordingly, we resolve that Judd has not shown that the court's admission of this evidence constituted reversible error.

Affirmed

Rules

Motion in limine

o          (Latin: "at the threshold") is a motion, made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial. This is done in judge's chambers, out of hearing of the jury. If a question is to be decided in limine, it will be for the judge to decide. Usually it is used to shield the jury from possibly inadmissible and harmful evidence.

Rule 412 Discussion

o         Fed.R.Evid. 412(a)(1)

o    The rule provides that "evidence offered to prove that any alleged victim engaged in other sexual behavior,"

o         Fed.R.Evid. 412(a)(2)

o    "evidence offered to prove any alleged victim's sexual predisposition,"

o         Both  412(a)(1) and 412(a)(2) are generally inadmissible in civil cases.

Rule 412(a) Engaged in OTHER sexual behavior

o         Provides that "evidence offered to prove that any alleged victim engaged in other sexual behavior" will generally be excluded.

Rule 412(b) Exception Probative Value

o         Provides an exception to exclusion when the "probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party."

Class Notes