Wednesday, April 16, 2008

Fourth Circuit decides major Confrontation Clause Case dealing with state rape shield laws

In Barbe v. McBribe, the Fourth Circuit Court of Appeals dealt with a confrontation clause issue. The issue presented to the court was whether the district court erred in holding that Barbe’s rights under the confrontation clause were not violated when the state trial judge mechanistically applied the state’s rape shield statute without evaluating whether the interests served by the statute justified the total limitation enclosed upon Barbe’s federal constitutional right to cross-exam an expert witness. Barbe was seeking habeas corpus relief under Section 2254. He had been convicted in 1999 in West Virginia of 8 counts of sexual abuse. Six of the 8 counts related to his granddaughter. In order to bolster the granddaughter’s testimony, the state prosecutor called an expert witness in clinical psychology to opine that the granddaughter exhibited the profile of a sexually abused child and that she had in fact been sexually abused. Barbe sought to cross-exam the expert based on other incidents of sexual assault. Defense counsel explained to the court that he sought to provide an alternative explanation for why the granddaughter exhibited the psychological profile and problems. A trial judge forbade this cross-examination. According to the trial judge, under the West Virginia rape shield law other claims of sexual abuse could be admitted only if the defense could prove the falsity of the other claims. Of course, in this case, the defense did not want to prove the falsity of the other claims. The defense depended on the other claims being true to explain the source of the profile.

The Fourth Circuit held that Barbe should have been granted a writ of habeas corpus. The court held that “his Sixth Amendment confrontation right was indisputably contravened, however, by the state circuit court’s application of a per se ruling restricting cross-examination of the prosecution’s expert under the state rape shield law.” The Fourth Circuit held that the state court’s ruling was in clear conflict with the Rock-Lucas principal established by the Supreme Court of the United States in 1991. The state court’s decision involved an objectively unreasonable application of federal law by ignoring the Rock-Lucas principal.

The Fourth Circuit held that the state court should have considered: (1) the strength of the state’s interest that weigh against admission of excluded evidence, (2) the importance of the excluded evidence to the presentation of an effective defense, and (3) the scope of the evidence ban being applied against the accused. The court found that each of these factors favored permitting cross-examination of the expert witness. Accordingly, the court remanded for the issuance of writ of habeas corpus.

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