-: SJC-13461.
Commonwealth V Eden C Jacques
-: Attorney Daniels.
-: Good morning, and may it please the Court.
My name is Attorney Josh Daniels,
and I represent Mr. Jacques in this appeal.
So my client was denied his constitutional right
to present his entire defense
through cross-examination.
And for that reason, we're asking you to reverse
for basically three independent reasons.
The first is that the Barry allegations are
not sexual within the meaning of the Rape Shield statute.
And so, the Statute shouldn't have come into play at all.
The second is that even if that's incorrect,
the judge still abused his discretion by keeping them out.
And the final one is the Commonwealth's Closing Argument.
I'd actually like to start with my second point
because I feel like that has the most ground
that needs to be covered.
So even if the Barry allegations are within the scope
of the Statute at the threshold, I would say that
the implicit Constitutional exception to the Statute
that this court recognized in Joyce would
still come into play.
-: We've been very narrow in this area with respect
to Bohannon, Ruffin, and Polk.
Correct? -: Pardon?
-: We've been very narrow as far as carbon exceptions,
Constitutional-based exceptions to Rape Shield.
One is Bohannon, the second is Ruffin,
and the third is Polk; correct?
-: I don't know exactly what you mean
by narrow it Justice Gaziano, I think-
-: He's more than broad.
(everybody laughing)
-: I mean, I guess it depends.
-: And in fact, doesn't Bohannon say it's a narrow exception?
-: I mean, Bohannon says at the end of the opinion,
"This is not a rape-shield case.
This is a case about essentially what we now call Mass guide
to evidence 608.
And the reason that they said this is not
a rape-shield case is because this is only
about allegations. -: It's not about-
but there's a constitutional overlay to everything.
-: Yep. -: Right.
And that's what we're talking about,
the ability, the six-amount ability
to present the defense.
-: Yep. -: But be that as it may,
we've had false accusations,
sexual experience in Bohannon
and then this confabulation dissociative confabulation
in Polk; correct?
-: As far as your cases are concerned,
there's also Baxter from the Appeals Court,
which I view as sort of in the same vein as Polk.
-: Right, but I'm just focused on these, the SJC cases.
-: Yep. -: So why is it
that we should expand this to a fourth category
of consistent allegations?
-: So I don't see it, honestly, as an expansion.
I think if you, like, as you said,
there's a constitutional overlay to all of this.
I think all of these cases ultimately,
are applying general Constitutional principles
in interpreting the sweep of the Statute.
And if you take a step back
and you look at particularly Baxter, Polk,
and Ruffin, I think the common thread that runs through all
of them is that at their core they all deal
with narrative recycling.
In two of those cases, they...
The narrative recycling is probably unintentional
or unwitting.
That's the confabulation theory.
And in Ruffin, looking at the Appeals Court's decision,
at least, it seems to be intentional narrative recycling.
The only difference with Ruffin is that in that case,
part of the relevance came
from the extraordinary sexual knowledge issue.
At the same time, this court-
-: That's your term, this narrative, right?
You're making this up.
The cases don't say that.
-: I mean, I think that is my gloss on the cases.
-: Okay, so let me ask you something
on that point, which to drill down.
Justice Englander said that
the striking similarities was hyperbolic.
When I look at or try to match what
the victim said in the earlier incidences with this case,
I see a lot of 'em have to do
with the child's unfortunate circumstances
in that she has trust in adults.
She has to share a living room mattress with a relative.
That's just her unfortunate life circumstance, right?
-: So I think if, first of all,
the question is
whether a reasonable jury looking at these two narratives,
side by side could, draw a rational inference of recycling.
And I get that from Joyce and Alt,
and an epiphany I had yesterday is
this is essentially a conditional relevance issue.
So I think
if the narrative is in fact recycled, then-
-: But conditional relevance isn't good for you
because we go to the judge's discretion on that, right?
-: Right, but the lens through which you view the,
through which the judge is supposed to view to exercise
that discretion is essentially in the light
most favorable to the proponent.
-: So tell me why Justice Englander was wrong.
-: So I think he's wrong
because he's viewing the evidence,
and or for the Court.
The Court is making the judgment
of whether they are convinced
by this inference of recycling.
And the question needs to be
whether a reasonable jury could have this available
as a rational inference.
And I think it is a rational inference,
particularly, if you look at the number of details
and how specific they are side by side in both
of the narratives.
It may not be the only inference available,
but certainly, a jury would not be irrational
or taking leave of it census.
-: For the striking similarities, could you go over those?
-: Right, of those facts? -: Yeah.
-: So you have, I think the best example
for me is just looking
at the narrative details
in the two living room episodes involving my client
and Mr. Barry.
So it's not just the abusive behavior that is the same,
it's also the setting both, that's-
Judge: Where she lives.
-: I mean, she wasn't living at Normandy Street,
she was visiting at Normandy Street.
That's right, that's where she sleeps in the living room.
-: Right, but I mean, the fact,
and it's also the fact that
like both sisters are involved. I
-: I'm gonna interrupt you.
Continue for Justice Kafker, the litany of similarities.
-: Yeah, so you have the same two sisters
in the same setting,
sleeping in the living room
in these two different apartments.
There's the same alleged abusive behavior getting
into bed and rubbing their legs.
And the same, basically, the same words uttered in response.
-: Okay, let's...
Before you get to the words, those are just so common.
The first part of this, I mean, you know,
you and I, we've read hundreds and hundreds of these cases.
Those two don't get us into anything distinctive, do they?
I think rubbing the legs and sleeping in the living room,
we've got, that's just...
-: I think when you put them all together,
it comes up. -: I don't think this-
-: I'm cutting you off there
'cause I don't find those distinctive.
Tell me what, point to something distinctive.
'cause that would be very helpful.
Something that I don't see in a hundred of these cases.
-: So in both episodes,
the response that this provokes is
basically, the same words uttered in response in one story.
I think Denise, the pseudonym is the person who,
that's who she attributes it to herself.
And the other story, she attributes it to her sister,
who I'm calling Jane.
And it's something to the effect of, "We're going
to have a problem if you don't stop."
And I think the whole is basically
more than the sum of its parts.
And when you put all of this together,
-: Say, "We are going to have a problem if you don't stop."
-: Yeah. -: Meaning,
the children are gonna be punished if-
-: No, he, the assailant is going
to have a problem if he does not stop rubbing their legs
or whatever he's alleged to be doing.
-: Again, isn't that standard?
And that may be- -: Hundreds of cases,
-: And that may be an argument
that the Commonwealth gets to make to the jury
for why they should not find that this is recycled.
But I don't think that's a reason
to keep it away from the jury.
I see that as basically, just a factual dispute,
which if you look at Joyce, if you look at Footnote 10
of Baxter, the fact that this conclusion would be contested,
that a different interpretation
of the evidence might be available is not a reason
to keep the evidence away from the jury.
-: On the facts is I tried to line them up, reading
the briefs as I see a lot of them, they have to do
with unfortunate circumstances,
including the persons walking around
with their penis exposed.
That's what's gonna happen in a rape
and where the sisters live, where they sleep, et cetera.
But the ones I found similar in,
are the victim was told by an adult that the defendant
and Barry were both sneaky and that Barry
and defendant offered her $20 to dance or have sex.
Are those two facts, am I getting that wrong?
Are those two facts the similarities?
-: Yes, they're part of what is...
They're part of the,
what I say are the details that are recycled
between the two narratives. -: Okay.
-: And again, this is, you know,
you look at it in the light most favorable to the proponent.
The question on is, you know,
could a rational jury find
that these narratives are recycled?
-: So how's it a light most favorable
'cause it's an exception to the Rape Shield Act.
-: I don't agree with your first argument,
by the way, as you could probably tell,
but how's...
This has to be an exception to the Rape Shield Act, right?
-: Right, but I mean, if you look at the analysis in Joyce,
you're certain, you have to...
You're assuming that the jury would believe this evidence.
And basically, you're looking at whether,
what a rational conclusion that could follow
from that would bear on whether it has any rational tendency
to bear on the accuser's credibility.
And it doesn't matter if there might be a different view
of the evidence that that is something
for the jury ultimately to resolve.
It's not a reason to keep it away from the jury.
And I think- -: So, just articulate
the theory for me.
So your theory is that previously,
this same victim was victimized by Mr. Barry
and therefore, she's what,
making this up the second time around.
-: She drew on her earlier experience
with Mr. Barry to fabricate the-
-: So she drew- -: Her initial allegations
against my client. -: On the undisputed experience
with Mr. Barry,
the actual victimization of herself
by Mr. Barry in order
to fabricate something against your client.
-: Yes. -: Okay.
-: And I think that's very similar to Ruffin,
where the theory, again-
-: Ruffin, didn't that involve the young victim?
-: It did, that's the only difference.
-: It was crucial.
Well, and it was crucial to show why
that young victim would know of, you know,
this kind of sexual misconduct.
-: Right, my point about Ruffin is at their core,
the theory is the same,
which is the victim drew on her earlier experience
of victimization to fabricate a new allegation
that is the same in both cases.
-: Your purpose is to show that the victim here is lying,
whereas for Ruffin, the purpose was
to show why the victim would have had experience
in these sexual matters because she was so young otherwise.
-: I mean, I think, yes,
the only sort of clarification is that I think in Ruffin,
as I read the Appeals Court's decision in that case,
that this court then flipped, the theory
in that case was also, that the victim was lying.
But it was to,
but like part of the other reason why this was
so important to the defense
and Ruffin was to explain how she could have the wherewithal
to fabricate these details given her young age.
But this court, again,
explicitly did not limit its reasoning
to that particular fact pattern.
It said it might be.
There might be cases in which it could be relevant
for other purposes.
The defendant will need to show what that relevance is.
I think here, if the jury accepts
that this is recycled narratives, then I think
that self-evidently bears on the credibility
of the accusation.
And the only other-
-: In the trial judge, in making the assessment
of whether or not to allow the cross-examination
that you wanted to do to continue, does the trial judge have
to balance the policies of the Rape Shield
against your client's constitutional rights
to present a defense?
Or is it automatic
that your client then gets to present the defense?
-: So he has to do that.
He has to balance the policies of the Rape Shield Statute.
-: So tell me why
the trial judge abused his discretion
and the balance that he performed.
-: Sure, so I think the biggest problem with,
there are two problems that I see with the judge's decision.
One is it's not clear to me that his reasoning
actually engages in that balancing.
His primary reason
for keeping this out is I haven't seen a case exactly
like this before, so I'm not gonna do it.
And I-
-: He's right because we...
-: Right, but- -: Right, because he,
-: But every case is the...
Every case that recognizes this exception is
also the first time in which that exception is recognized.
-: And so- -: But in the context of,
and I know you don't agree with this,
but in the context of these exceptions being narrowly drawn
and each of the cases suggesting
that they're narrow exceptions isn't, how can we say
that the trial judge abused his discretion
on that particular reasoning?
-: I mean, first of all, I don't, looking
aside from Bohannon, which is not a Rape-Shield case,
I don't know that any of the cases expressly say,
you know, are this, this is for...
This applies only in this sort of situation
or characterizes it as a narrow fact bound that
as an exception, that fact bound in the same way.
-: What was the second reason that you suggest
that the judge abused his discretion?
-: So, if I could guild the lily on my first reason,
I actually see a lot of parallel between
what the judge here said, said here,
and the reasoning of the judge in Baxter,
which the Appeals Court overruled, right?
So that, there is that parallel there.
And so, to the extent that Baxter is good law
and no one has questioned Baxter's goodness as law,
I think that's a way there.
The other point I would make is even
like looking at the policies of the Rape Shield statute
and looking at, you know,
every conceivable reason you have for keeping this out.
I think the only one that actually,
even arguably points toward exclusion is the concern,
which is an important one about potential trauma
or retraumatization of the victim.
As I say in my reply brief,
that can't be the entire analysis because
otherwise, the Constitution is going to lose every time.
And like that concern is present in every single case.
So if that alone is enough to keep it out, then a bunch
of your cases are wrong.
The other reasons, conceivable reasons
to keep it out might be, you know, this is
for an improper purpose.
Everyone I think agrees, including the judge
that this was not for any purpose.
It was not being offered
for any purpose prohibited by the Statute.
Look at, there are at least eight cases
between this court
and the Appeals Court that where
that purpose is absent, have been reversed on these grounds.
And the cases going the other way, I think,
are all distinguishable on for various reasons.
And then the only other thing putting to one side,
I think the Commonwealth's post hoc rationalization about
the effect on the trial, which the judge said nothing about.
And if it were at all of concern to him,
he would've said something about it.
The only other reason effect-
-: On the trial as far as confusion.
-: Yes. -: Okay.
-: The only other reason that
the judge did point toward is this idea
that adequate cross-examination had already been allowed,
which I think the judge misread the way
that the cases actually look at that, which is,
if you look at Stockham,
what this court said there is you need
to consider every separate
and discreet basis for impeachment.
And you're, you, it's...
How did I put it in my notes?
It, the question is whether the evidence was needed
to explore or air the defendant's chosen theory of defense,
not a more watered-down or generic one.
And so the question is whether
these allegations were essential to the theory
that the defendant wanted to pursue.
You cannot air a recycling theory
unless you can compare the allegations
and let the jury see how they might
or might not be recycled.
And so I think there's very little reason
actually pointing to exclusion.
And you know, I think there's, there...
The Court may disagree,
but there's at least a rational inference
that justifies sending this to the jury.
And for those reasons,
I think the judge's Rape-Shield ruling is wrong
and can't be supported.
I'm happy to take questions about my other points,
but I'm not overstaying my welcome.
-: Okay, thank you. -: Thank you.
-: Okay, Attorney Doherty.
(paper rustling)
-: Chief Justice Budd, may I please the Court?
Andrew Doherty for the Commonwealth,
with me is Assistant District Attorney Kyle Siconolfi,
who was the trial attorney in this case,
and also to acknowledge Jacquelyn Lamont, who is our Chief
of Forensic Examiners, who's watching as well,
who conducted the forensic examinations
of the victims in this case.
This court has always tread very carefully when it comes
to the Rape Shield, and not only with the Rape Shield,
but in all cases involving rape victims.
This court has always acknowledged
that there is a third factor in play,
which is in jury's deliberation, which is society's innate
and ongoing misogynistic skepticism
about a rape victim's testimony
that is expressed in the Rape Shield
as it carefully discusses things like Ruffin,
where it isn't simply that it's relevant,
it's that it's dealing with the assumption
that society has it
with respect to chastity norms, the fact
that a child wouldn't know of these terms
unless she'd previously been raped.
-: Given that as we look at the continuum
of these cases in Bohannon, Ruffin, and Polk.
Now we have presented to us a fourth category
that have recycled allegations.
-: Correct. -: As I look through,
read the Appeals Court decision
and look through the allegations, I get the similarities,
which are, as I've said in the prior question,
and that are a product
of the unfortunate circumstances
this victim found herself in.
But it seems striking to me
that in the prior allegations against Barry,
isn't the victim told, an adult told the victim,
"Be careful this person's sneaky," using
that one particular word.
And then that, in more striking, that Barry
and the defendant both offered her $20,
the exact same amount to both dance or have sex.
-: Sure, so it-
-: To me, to be striking, so please tell me why they're not,
and why they're not admissible
-: No, I under I understand the question.
The first thing I would say is you have
a teenager using colloquialisms to describe
how she received warning from some concerned adult
in the house, and she used the word sneaky.
If we start going down a road where we're concerned about
the language that a rape victim is using,
we're opening the door to the kinds of concerns
that this court has expressed.
It most recently, I'd say in the dissent in Alvarez,
but also in maintaining
the first complaint doctrine in King.
That when we start, one guessing how weird it is
the language that a victim is using, which is really
what the defense's argument is.
Isn't it weird that she was raped twice, isn't it weird?
-: Well, it's unique.
It's unique to say that the same, you know,
or similar, another aunt told me it was sneaky.
He was sneaky. -: Right.
-: And not, you know,
and that, you know, maybe like creepy,
I think people use that a lot now.
-: Sure.
But the $20 does seem a little unique.
-: I beg to differ. -: Okay.
-: In- -: $4 to dance or have sex.
-: It is offering rewards or inducements in order
to do something that pushes that boundary.
-: Specifically the same amount,
for the same reward, for the same act.
-: If it was, you know, $15 and 30 cents
if it was some distinct number
that stood out on its own, I mean, I don't know that 20,
you know, saying I'll give you 20 bucks
for a dance versus I'll give you 10 bucks for a dance.
Makes all that much of a difference.
What matters here is you have a child saying,
"You offered me money to dance.
-: But isn't that something that you would argue then
on redirect?
-: It... -: As opposed to not allowing
the defendant to have this defense, which is Constitutional.
-: So isn't it weird that, so I would say this.
Isn't it weird that a,
we're talking about Eden Jacque's rape case,
but let's also talk about the fact that something
that wasn't brought up in direct,
but rather in cross-examination,
didn't you offer $20 for this dance?
We're now dealing with minutiae, right?
Isn't it strange that-
-: But isn't that what we do when we look
at bad act evidence in general?
Like suppose there's a robbery of a convenience store
and you as a prosecutor want to get in Bad Act evidence.
You would say there's some signature conduct that the person
that robbed the convenience store on one day
and then robbed it five days later was wearing a, you know,
a clown mask or something that was unique, right?
The minutiae, the uniqueness is
what makes it admissible in many cases.
-: So, I guess I'll say two things.
The first thing I would say is,
I don't think it's the right way to go to compare
a child rape case to any other kind of case
because society treats it differently
and this court is acknowledged as a different thing.
And there are different rules of rape cases.
We're allowed to put an expert testimony
about delayed disclosure.
We're allowed to test, bring in expert testimony
to talk about anatomy confusion where we...
So I don't think that that that's the right parallel
to track here if it's pattern evidence for a defendant,
do we get to put that in, I think instead,
thinking about it also in light of the stigma
and the social issues, taboos, et cetera that go
with rape victims and rape skepticism,
society's very skeptical enough
to add this extraordinarily small thing that is,
otherwise, entirely different, right?
There's no other relevant piece of information
that you've been able to identify
despite having two complete say-
-: I could understand if we were confronted with a case
where there was a prior allegation
against Barry that was generalized, I mean clearly,
protected by the Rape Shield Statute.
-: Well, maybe then I, this because I did focus only
on child rape.
I mean, you've seen that what I could find
on child rape.
Making Rape Shield exception, where it's exceptional, right?
It isn't just gonna apply to child rape.
And the next case,
I would then think about is a prostitute that's been raped
by two different Johns. -: Right-
-: Charges $20 for a-
Judge: That would be similar to the victim,
in this case, sleeping in her living room,
that's just the circumstances of the situation,
-: Right, and-
-: I would say, I got in the car,
I was offered $50, whatever.
That's what, that there's the sameness in those.
-: And where both of these...
Where this victim was offered a reward,
which we know is a common grooming technique in order
to do something sexual, now we're latching on the fact
that the dollar amount that was associated with that.
I, it-
-: I don't think it's that easy.
So you, I would hope that you would, could see
that this was a pretty strong case
for the Commonwealth against Mr. Jacques.
And so, in the context of,
I don't think the Commonwealth's making the point that
the statutory guarantee would make
the Constitutional guarantee yield.
He has a right to present a defense.
And in the case where the Commonwealth has this,
all of this other evidence, this is what he has, right?
So this is the impeachment of the complainant
with the sameness of whatever you claim is
just two out of four things against with Mr. Barry.
It's what he has.
So, tell me why his constitutional right
to present his defense should yield
to this statutory-
-: Sure. -: Rape Shield.
-: So I'm not relying, I agree
with you that he's always gonna have
a constitutional right to present,
to cross-examine witnesses
and impeach, you know, but there are,
and that's going to always trump
the Rape Shield Statute.
Where it gets different is twofold.
Number one, that the judge,
we trust judges with the discretion
to properly limit cross-examination
to things that are probative
and are not unduly prejudicial.
And that wouldn't otherwise confuse or distract the jury
or unnecessarily prolong the trial.
-: But that's a 403 argument.
That's not the argument
on the Rape Shield and the exception,
-: Well, respectfully, well, not respect, (chuckles)
of course, respectfully,
but I, what- (everybody laughing)
My argument, Judge,
is when you look at whether
or not the judge made the wrong call about
this being relevant enough to have at trial,
look at what the judge did, right?
And look at the, I don't know if it was an hour's worth
of discussion, but there are many,
many pages over three different days where this judge tried
to figure out how something this obtuse could be relevant
at trial.
And he then, only
after figuring out that really there's minimal relevance
to this, and he heard everything that the Court has heard,
and he read the SANE interview,
and he said, "Please explain to me
how this could be relevant.
What is this probative of?"
And we still just get this,
"Isn't it weird that," right?
And so, then comparing that to the prejudice to trial,
the fact that AD Siconolfi is now gonna have
to prove the Barry case
and rebut this idea
that lightning doesn't strike twice simply
because he offered 20 bucks for a dance on video.
It, the judge, that's absolutely the judge's call, right?
And it doesn't violate these constitutional rights.
It doesn't violate the Statute.
It is, the judge is always allowed
to make relevancy calls here.
And this judge, frankly, went over and above, right,
because he didn't have the benefit of a written motion.
He never really got clarity about
what this was probative of.
And yet he went-
-: Is it that opaque
what it's relevant to that
the credibility of the complainant?
Is it really that unclear?
-: I think it is because I'm trying
to imagine a different case, right,
where a defense attorney says, this person committed,
this person was mugged
and he said the person was wearing a red sweatshirt,
and he said, "Gimme $20."
And then he pulled out a knife,
and then a year later, he comes out,
and he says, "Yeah, this person had a red shirt
and he pulled out a knife and he said, "This ain't $20."
That's never coming in a case.
A defense attorney wouldn't bother doing that.
The reason a defense attorney is doing it in this case is
because whether he's gonna articulate it or not,
he's looking for that to present this myth
of the innocent victim, the righteous victim, the idea
that lightning doesn't strike twice.
So that the jury is then wondering,
"What's wrong with this kid?
What am I missing here?
Why does this keep happening to her?
-: I thought the theory was pretty clearly articulated,
which was that this victim is pulling
on her prior experience in order to get
the defendant out of the house
because he is a strict disciplinarian
as to her siblings.
I thought that was the theory.
-: Yeah, well, certainly the theory
of bias was right, that was well-established,
but corroborating that bias by introducing
an entirely different, and really different in kind,
right, because when you look at Jacques,
it wasn't simply an escalation just, well,
and she also did this, I mean, this was a serial series
of sexual assaults, whereas Barry was what looked to be
a one or two off episode by somebody
who was visiting the house, right?
And so, you know,
to say, you know, this is somebody who was aware, well,
let me, as we get to Ruffin, right,
I mean that was part of the issue with Ruffin.
This court made clear in Ruffin, it wasn't in order
to help a defense bolster this argument they're making
rather it's to deal with the assumptions
that society has about chastity norms
and that a youthful victim wouldn't know.
So, you really would be creating
and opening the door to a brand new exception.
You wouldn't be expanding Ruffin,
you would be opening a door to a brand-new exception
for this substantial similarity idea to come forward.
-: Can I ask a factual, I'm just trying,
I'm reading through the motion session for a second.
Is the $20 dancing, is there a difference,
I'm just reading here.
Morris Barry propositioned them
to have sex for $20.
Mr. Jacques said that he would take them to,
them to take naked pictures for 10 or $20.
So is there, is this more distinguishable
that they're not exactly the same?
I just don't know the...
I haven't read the whole record here.
-: I apologize, your Honor.
I know that there was offering money
for various things-
-: But were they offering money for different things?
I mean, $10 for a picture versus $20 for sex.
hat's different.
-: I, and I should be, you know,
I should be more familiar with the record than I am.
But you do have the SANE interview
where she discusses, and Barry,
and it has everything in there, and-
-: When we compare, so we've gotta compare the record to,
on the, 'cause if it's the same $20 for dancing
or sex versus, you know, money for something,
you know, relate sexual but unrelated,
we gotta pin that down.
-: You would, but then again, I just, the implicate-
-: You don't think that even that,
even if it's exactly the same, is relevant.
But if it's different, that helps you a lot.
-: It does, but I would also say that,
we're also ignoring the implications
of letting something
so small then determine, then open the door
to essentially the entirety of the Barry.
It wouldn't just be, didn't somebody else offer you $20
for, to dance one time?
It really would open up the whole war.
-: You may win on something easier, which is that there,
it's not exactly the same
and you may wanna win on something easier.
-: Well, I would,
however, I...
The Court, I don't think I appreciate
that you mentioned from the very beginning
how narrowly this court has always looked
at the Rape Shield statute.
And my concern isn't just for this case,
it is for every case from this case.
And so, I appreciate that this court has recognized
how concerning these can be.