University of Miami Law Review Volume 74 Number 1 Article 3 11-22-2019 Evidence’s #MeToo Moment Aníbal Rosario-Lebrón Howard University School of Law Follow this and additional works at: https://repository.law.miami.edu/umlr Part of the Civil Rights and Discrimination Commons, Criminal Law Commons, Criminal Procedure Commons, and the Evidence Commons Recommended Citation Aníbal Rosario-Lebrón, Evidence’s #MeToo Moment, 74 U. Miami L. Rev. 1 (2019) Available at: https://repository.law.miami.edu/umlr/vol74/iss1/3 This Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. ARTICLES Evidence’s #MeToo Moment ANÍBAL ROSARIO-LEBRÓN* The #MeToo movement has drawn attention to the preva- lence of sexual and gender-based violence. But more im- portantly, it has exposed how society discounts the testimony * Assistant Professor of Lawyering Skills, Howard University School of Law. LL.M. in Legal Theory, New York University School of Law (2010); Post- Graduate Certificate in Linguistics Applied to the Study of Spanish, University of Puerto Rico, Río Piedras Campus (2008); J.D., University of Puerto Rico School of Law (2005); B.S., University of Puerto Rico, Río Piedras Campus (2002). This work is dedicated to my nieces Anilisse E. Rosario Valentín, Alexya S. Me- dina Morales, Alyah I. Medina Morales, and Alayza A. Medina Morales in hope that they become adults in a world where their voices are as not discounted. The culmination of this work was made possible by the 2018 summer re- search stipend provided by Howard University School of Law. This Article ben- efited from presentations at the 2019 Evidence Summer Workshop, the ALWD Scholars Workshop at the 2019 Biennial Empire State Legal Writing Conference, the NY Area Family Law Scholars Workshop, the Howard University School of Law Faculty Colloquium, the 2017 Family Law Scholars & Teachers Conference, the U.S. Feminist Judgments Project: Rewriting the Law, the Writing the Future Conference, the 2014 Law and Society Association, and the 2013 LatCrit Biennial Conference Work in Progress Colloquia. I am grateful to Professors Bennett Capers, Christine Goodman, Cynthia Godsoe, Danielle Tully, Deseriee Kennedy, Ed Stein, Heidi Brown, Jamie R. Abrams, Jessica Miles, JoAnne Sweeny, Julia Simon-Kerr, Lori Johnson, Matt Bruckner, Meghan Boone, Rachel Rebouche, Richard Chused, Sarudzayi M. Mat- ambanadzo, Sha-Shana Crichton, Solangel Maldonado, Susan Hazeldean, and Su- zanne Rowe for their helpful commentaries at different stages of this Article. My deepest gratitude as well to former Solicitor General of Puerto Rico Margarita L. Mercado Echegaray, for her continuous feedback and encouragement. Also, many thanks to Aaron P. Riggs, Christine Thomas, Sheyla Soriano, and Chassity Bob- bitt for their research assistance. Finally, I would like to acknowledge the editors of the University of Miami Law Review, especially Hannah Gordon, Stephanie 1 2 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 74:1 of women. This Article unfolds how this credibility discount- ing is reinforced in our evidentiary system through the use of character for untruthfulness evidence to impeach victims. Specifically, through defense attorneys’ practice of im- peaching sexual and gender-based violence victims’ charac- ter for truthfulness as a way to introduce functional evidence of credibility biases regarding the trustworthiness of sexual and gender-based violence victims and the plausibility of their testimonies. The Article further shows a correlation be- tween the poor performance of our legal system in redress- ing the harms associated with sexual and gender-based vio- lence and our evidentiary rules. Accordingly, the Article ad- vocates reforming the use of character for untruthfulness ev- idence and proposes a rule that attempts to temper the prej- udicial effects caused by long-held credibility biases against sexual and gender-based violence victims with a well-estab- lished impeachment tradition, constitutional protections, and judicial efficiency. It does so in hopes that the #MeToo movement becomes a catalyst in the judicial response against sexual and gender-based violence. Moran, Meaghan Goldstein, and Keigan Vannoy, for their insightful edition, ded- ication, and loving work on this Article. 2019] EVIDENCE’S #METOO MOMENT 3 #FEM2: INTRODUCTION ...................................................................4 I. #METOO: A NOT CREDIBLE WITNESS .......................................8 II. #BELIEVEHER: DISCOUNTING SGBV VICTIMS WITH CHARACTER FOR UNTRUTHFULNESS EVIDENCE .......................19 A. Women’s Lack of Trustworthiness .....................................32 1. COLLECTIVE CREDIBILITY BIAS ....................................32 2. CONSEQUENTIAL CREDIBILITY BIAS..............................35 B. Perceived Implausibility of SGBV Victims’ Testimony ..................................................37 1. CONTEXTUAL CREDIBILITY BIAS ...................................38 2. “HE SAID/SHE SAID” CREDIBILITY BIAS .......................45 III. #TIMESUP: THE COSTS OF CHARACTER FOR UNTRUTHFULNESS EVIDENCE IN SGBV CASES ..............................49 IV. #NEVERMORE: REFORMING IMPEACHMENT OF SGBV VICTIMS’ CHARACTER FOR TRUTHFULNESS .................56 A. United States Landscape on the Use of Sexual and Gender-Based Violence Victims’ Character for Untruthfulness Evidence ..................................57 1. OPINION & REPUTATION EVIDENCE ..............................58 2. PRIOR CONVICTION EVIDENCE ......................................60 3. PRIOR ACTS OF UNTRUTHFULNESS EVIDENCE ...............63 B. Proposed Rule for the Impeachment of SGBV Victims’ Character for Truthfulness ..................................75 RULE 101X. Scope; Definitions .........................................76 RULE 403X. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons ..............76 RULE 608X. Witness’ Character For Truthfulness Or Untruthfulness ..............................................................76 (A) Reputation or Opinion Evidence .................................76 (B) Prior Convictions .........................................................77 RULE 416X. Impeachment of Sexual and Gender-Based Violence Victims with Prior Acts of Untruthfulness .........79 C. Advisory Comments on the Rule ........................................82 1. BALANCING TESTS ........................................................83 2. SEPARATE HEARING FOR DETERMINING IMPEACHMENT WITH PRIOR ACTS OF UNTRUTHFULNESS .......................83 3. REALIGNMENT OF ADMISSIBILITY OF PRIOR ACTS WITH ADMISSIBILITY OF PRIOR CONVICTIONS ........................87 4. COUNSEL FOR VICTIM ...................................................88 4 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 74:1 5. NOTIFICATION REQUIREMENT .......................................90 D. Proposed Rule for Impeachment in Action ........................91 V. #EVERYDAYSEXISM: OBJECTIONS TO SPECIFIC IMPEACHMENT RULES FOR SGBV VICTIMS .....................................................94 A. Defendants’ Rights .............................................................95 B. Over-Conviction of False Accusations ..............................97 C. Burden to the Judicial System ..........................................100 D. No Gender Specific Rule ..................................................102 E. SGBV Exceptionalism ......................................................104 #WOMENSREALITY: CONCLUSION ................................................105 #FEM2: INTRODUCTION Well the icecaps are melting pretty fast and the change here [in workplace sexual harassment] seems to be glacially slow. But I will 1 say, that if we do nothing the change is not gonna come. 1 LastWeekTonight, Workplace Sexual Harassment: Last Week Tonight with John Oliver (HBO), YOUTUBE (July 29, 2018), https://www.youtube. com/ watch?v= dHiAls8loz4 [hereinafter Last Week Tonight with John Oliver] (Profes- sor Anita Hill discussing the changes our judicial system has experienced in re- dressing sexual harassment and SGBV at 28:15–28:30). 2019] EVIDENCE’S #METOO MOMENT 5 Historically, in sexual and gender-based violence (“SGBV”) cases,2 women have been doubly victimized.3 With the rise of social 2 The term sexual and gender-based violence cases will be used in this Arti- cle as an umbrella term for cases in which the majority of victims are women and its violence has a gender or sexual component such as sexual harassment, rape, sexual assault, intimate partner violence, stealthing, upskirting, and similar ag- gressions. [SGBV] refers to harm or threat of harm perpetrated against a person based on her/his gender. It is rooted in unequal power relationships between men and women; thus, women are more commonly affected. It is often used interchangeably with “vio- lence against women” and can include sexual, physical, eco- nomic and psychological abuse. SGBV manifests in various forms including physical, emotional and sexual violence, sex- ual exploitation, discrimination and harassment. ALYS M. WILLMAN & CRYSTAL CORMAN, WORLD BANK, SEXUAL AND GENDER- BASED VIOLENCE: WHAT IS THE WORLD BANK DOING, AND WHAT HAVE WE LEARNED? A STRATEGIC REVIEW 5 (2013), https://openknowledge. worldbank.org/handle/10986/16733. “This