Johnson v. Elk Lake School District
283 F.3d 138 (2002)

Facts:  P (minor) claimed that D (her counselor) sexually harassed and abused her.  P tried to admit the testimony of another teacher who claimed that on one incident, D picked her up and touched her private area.  But this testimony was very confusing and the witness wasn’t really sure if D touched intentionally or by accident.  Trial judge refused to admit the testimony of this witness.

Issue:  Was the exclusion of testimony proper?

Holding: Yes

Rules:  Under Evidence Rules 413-415, establish exceptions to the general prohibition on character evidence in cases involving sexual assault and child molestation.  But these rules are still vulnerable to rule 403 where relevant evidence can be excluded if the probative value is outweighed by prejudice.

Rationale:  In this case, even if D’s previous act of picking up the witness constituted sexual assault, the exclusion of the testimony was proper under Rule 403.  From the evidence, it is clear that witness was not sure as to whether D intended to touch her private area.  Where a past act cannot be shown with reasonable certainty, its probative value is reduced and it may prejudice the D unfairly, confuse the issues, mislead the jury, and result in undue delay and wasted time.  Also, this previous event was so different form the conduct P is charging D of that its probative value was very limited.  Therefore, the exclusion was proper.