Error to Introduce Evidence of Defendant’s Intimate Relationship as Evidence of Motive to Lie for Covering for Her Lover?

The case is City of Kalispell v. Miller, 2010 MT 62 (Mar. 24), decided by a 4-3 vote; I agree with the dissent, for reasons you can see by clicking on the “continue reading” tag at the end of the excerpt below. Here are the facts, and the start of the majority’s view:

On February 9, 2008, [Molly] Miller, a probation and parole officer, and her lesbian partner [Jennifer] Benware, along with a friend and co-worker of Benware’s, Amanda Dumke, spent an evening drinking at a local bar in Kalispell. After several drinks, Benware threw a beer bottle at Miller and was evicted by the barkeep for disorderly behavior. Miller and Dumke remained at the bar but Dumke grew concerned about Benware and called to check on her. This conversation caused Dumke significant concern and at 9:51 p.m., she called the Kalispell Police Department (KPD), asking that they conduct a “welfare check” on Benware. Dumke explained that Benware, a lawful gun owner, was “playing” with her gun and was very upset. The KPD agreed to dispatch officers immediately. However, when Dumke told Miller she had called the KPD, Miller feared that Benware might lose her job at the Flathead County Sheriff’s Department Animal Control Unit; therefore, at 10:06 p.m., Miller called the KPD dispatcher, identified herself as a probation and parole officer, and told the dispatcher that Dumke’s call had been a prank and Benware was with them at the bar.

Meanwhile, when an intoxicated Benware arrived home after being expelled from the bar, she took several prescription sleeping pills and then left in her car, intending to get a soft drink. As a result, she was not at home when the KPD arrived to check on her. While KPD officers were still at Benware’s residence, dispatch called the officers and informed them that the requested welfare check had been a prank. The officers left Benware’s home and suspended their efforts to find Benware. Unbeknownst to the officers, Miller, or Dumke at that time, Benware had had an automobile accident at approximately 9:54 p.m., which passersby had reported to the Flathead County Sheriff’s Department. This accident occurred approximately 12 minutes before Miller told the KPD dispatcher that Benware was at the bar with her.

On February 25, 2008, the City of Kalispell charged Miller with misdemeanor obstructing a peace officer based on Miller’s untruthful claim that Dumke’s call had been a hoax and that Benware was with them. A jury trial was held in June 2008, at the conclusion of which the jury convicted Miller of the charged offense. Miller appealed to the District Court arguing that the Trial Court erred in allowing multiple references to Miller’s homosexuality into evidence and in allowing reference to Benware’s automobile accident. She claimed that such evidence was irrelevant, without probative value, and highly prejudicial. She also asserted that the Trial Court abused its discretion in allowing Benware to be treated as a “hostile” witness without a preliminary showing of hostility. The parties briefed the issues to the District Court, and on April 21, 2009, the District Court affirmed the Trial Court. Miller filed a timely appeal….

The Trial Court denied Miller’s pretrial motion to exclude evidence of homosexuality, noting that had Miller and Benware been a man and a woman, the nature of their relationship would be relevant and admissible. The District Court affirmed the Trial Court’s ruling concluding that “[t]he salient aspect of the evidence is the romantic nature of the relationship — not whether it was lesbian or heterosexual.”

While the Trial Court and the District Court equated homosexuality and heterosexuality for purposes of legal analysis, we conclude it was prejudicial error to do so under the circumstances presented here. Society does not yet view homosexuality or bisexuality in the same manner as it views heterosexuality. Because there remains strong potential that a juror will be prejudiced against a homosexual or bisexual individual, courts must safeguard against such potential prejudice.

In State v. Ford, 278 Mont. 353, 929 P.2d 245 (1996), Ford was charged with sexual intercourse without consent with another man. At trial, Ford testified that he was bisexual. The jury returned a guilty verdict and Ford appealed, in part, on grounds that the district court erroneously overruled his objections to the admissibility of evidence of his bisexuality. While we affirmed the district court in Ford, noting that Ford’s sexuality “was relevant to, and probative of an essential issue in this case,” we also cautioned:

There is, unquestionably, the potential for prejudice in this situation. There will be, on virtually every jury, people who would find the lifestyle and sexual preferences of a homosexual or bisexual person offensive… . [O]ur criminal justice system must take the necessary precautions to assure that people are convicted based on evidence of guilt, and not on the basis of some inflammatory personal trait. Therefore, we caution prosecutors and district courts not to assume, based on this opinion, that evidence of a defendant’s sexual preference would be admissible under most circumstances.

Unlike the situation in Ford, where Ford’s sexual orientation was squarely at issue, Miller’s sexual orientation and the existence of an intimate relationship with Benware was not probative or relevant evidence vis-à-vis the crime with which Miller was charged. As Miller suggested before trial, if the State was concerned that the jury understand Miller’s motive for calling off the KPD welfare check, it could have simply explained that the two women were good friends. There was no need to make references throughout the trial to the homosexual nature of their relationship — either as an element of the crime or to establish context. As we noted in Ford, if there is no need for purposes of proof of a crime to introduce to the jury a potentially “inflammatory personal trait,” then it may well be error to do so. Under the circumstances of this case, we conclude that introduction of the nature of the parties’ sexual relationship was an abuse of the Trial Court’s discretion. Therefore, we reverse the District Court on this issue….

I think this analysis is probably not sound, for reasons that Justice Brian Morris’s dissent correctly pointed out (disclosure: I know Justice Morris because we were law clerks in the same court the same year):

The State’s allegedly prejudicial remarks emphasized the intimate nature of the relationship between Miller and Benware in order to demonstrate that Miller had a motive to make the call in order to protect Benware. The State’s characterization of the relationship did not emphasize its same sex nature. The State instead focused on the length and intimacy of the relationship between Miller and Benware.

The State argued that the long-term intimate nature of the relationship between Miller and Benware proved qualitatively different than a mere friendship to demonstrate Miller’s motive to protect Benware. The Court appears to concede that evidence regarding the nature of the relationship would have been relevant and admissible had the relationship been a heterosexual one. Yet the Court concludes that such evidence should have been inadmissible here solely because it concerned a same sex relationship.

It seems to me that when the question is whether defendant deliberately lied to cover for someone else, the nature of the relationship between the defendant and the other person is highly relevant. It’s a normal human tendency (among heterosexuals and homosexuals alike) to cover more for one’s lovers than just for one’s friends; evidence that Miller and Benware were merely friends would thus suggest a likely considerably lesser motive to lie than evidence that they were lovers. And this relevance is sufficient to make the evidence admissible even despite the possibility that it might prejudice the jury. See Mont. R. Evid. 403 (emphasis added) (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ….”).

To be sure, even evidence such as this could at times be brought up in contexts where it’s not relevant, or where it’s excessive. But I saw nothing in the opinion to suggest that the “repeated references” that the court mentions were a problem because there were too many of them; the court certainly doesn’t point to any specific references that it thought were excessive — as I read the opinion, it was the mention of the lesbian relationship as such, and not the number of mentions, that is the error below.

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