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Keywords

plaintiffdefendantappealhearsay

plaintiffdefendantappealdivorce

Related Cases

Morgan v. Foretich, 846 F.2d 941, 56 USLW 2669, 25 Fed. R. Evid. Serv. 881

Facts

Hilary Foretich, born in August 1982, is the daughter of Dr. Eric Foretich and Dr. Elizabeth Morgan. Concerns arose regarding possible abuse during visitation periods with Dr. Foretich, especially after signs of physical abuse appeared on Hilary and she began making sexually explicit statements. Dr. Morgan sought to introduce evidence of similar abuse suffered by Hilary's older sister, Heather, and statements made by Hilary to her mother and a child psychologist, but the district court excluded this evidence.

Hilary Foretich was born in August 1982, the daughter of Dr. Eric Foretich and his third wife from whom he is now divorced, Dr. Elizabeth Morgan. Heather Foretich is three years older than Hilary and is the minor daughter of Dr. Foretich and his second wife.

Issue

Did the district court err in excluding evidence of sexual abuse suffered by Hilary's sister and in excluding out-of-court statements made by Hilary?

The determinative issue in this appeal is whether the district court erred in excluding evidence that Hilary's sister had been sexually abused and in excluding all out-of-court statements made by the plaintiff, Hilary Foretich.

Rule

Evidence of other crimes or acts may be admissible under Rule 404(b) of the Federal Rules of Evidence for purposes other than proving character, such as motive, opportunity, intent, or identity, provided its probative value is not substantially outweighed by its prejudicial effect.

Rule 404(b) of the Federal Rules of Evidence provides that Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Analysis

The Court of Appeals found that the evidence of Heather's abuse was highly relevant to identifying the defendants as the perpetrators of Hilary's abuse and negated defenses raised by the defendants. The court concluded that the district court abused its discretion by excluding this evidence, as it was essential to the case. Additionally, Hilary's statements to her mother were deemed admissible under the excited utterance exception to the hearsay rule, as they were made shortly after the alleged abuse and while she was still under stress.

The proffered evidence of sexual abuse suffered by Heather is admissible under the standard set forth in Lewis. First, the evidence was not offered to show the depravity of the defendants' character. Rather, this evidence was highly relevant to disputed issues in this case. Fundamentally, this evidence was essential in that it tended to identify the defendants as the perpetrators of the crime against Hilary since only the defendants had access to both girls.

Conclusion

The Court of Appeals reversed the district court's decision to exclude evidence of Heather's abuse and Hilary's statements to her mother, while affirming the district court's rulings on the defendants' counterclaims.

Accordingly, the judgment of the district court is reversed and remanded in part and affirmed in part.

Who won?

The plaintiffs, Dr. Elizabeth Morgan and Hilary Foretich, prevailed in part as the Court of Appeals reversed the exclusion of critical evidence that could support their claims.

The jury found for Dr. Foretich on Dr. Morgan's claims and for Dr. Morgan on Dr. Foretich's counter-claims.

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