United States v. Xavier Zephier
Not yet published in federal reporter; 2021 WL 707412 (2021)
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Rule of Law:
While expert testimony on typical sexual assault victim behavior is generally admissible to help jurors assess credibility, admitting such testimony to explain a victim's behavior while simultaneously excluding evidence of a prior sexual assault that could offer an alternative explanation for the same behavior violates a defendant's Sixth Amendment right to present a complete defense.
Facts:
- Xavier Zephier, O.A., and A.Z. were partying at Zephier’s home on the Yankton Sioux Reservation.
- O.A. and A.Z. had consensual sex in Zephier's basement, and the next morning, they fell asleep together on Zephier’s couch after an appointment.
- O.A. left about an hour later, and A.Z. fell back to sleep.
- A.Z. awoke on her stomach to someone pulling down her pants, who she initially thought was O.A., and began having sex with her.
- A.Z. said “wait . . . [s]top” and felt “pressure” on her back before freeing herself and seeing Zephier's face.
- A.Z. got dressed, left Zephier's home, told others what had happened, and reported the incident to the police.
- During a jailhouse interview, Zephier claimed they had consensual sex and mentioned having been accused of rape before.
Procedural Posture:
- A grand jury charged Xavier Zephier with one count of aggravated sexual abuse occurring in Indian country.
- Prior to trial, Zephier unsuccessfully attempted to suppress his jailhouse statements, exclude expert testimony, and admit evidence that A.Z. had been sexually assaulted before.
- Following trial, a jury found Zephier guilty.
- The district court sentenced Zephier to 180 months in prison.
- Zephier appealed his conviction to the United States Court of Appeals for the Eighth Circuit.
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Issue:
Does a district court violate a defendant's Sixth Amendment right to present a complete defense when it admits expert testimony on typical sexual assault victim behavior to bolster a victim's credibility but simultaneously excludes evidence of the victim's prior sexual assault that could offer an alternative explanation for her observed behavior?
Opinions:
Majority - Stras
Yes, the district court violated Zephier's right to present a complete defense by admitting expert testimony on typical sexual assault victim behavior while simultaneously excluding evidence of the victim's prior sexual assault. The court first addressed Zephier's argument that his jailhouse statements should have been suppressed, concluding that Special Agent Mertz’s statement about executing a search warrant for a buccal swab did not constitute an interrogation under Rhode Island v. Innis, even after Zephier invoked his right to counsel. This was because presenting a search warrant and explaining its execution is a legitimate police procedure, not designed to elicit an incriminating response. However, the court found error in the district court's combined evidentiary rulings. It reaffirmed that expert testimony on the typical behaviors of sexual assault victims (e.g., delayed reporting, minimizing, changing stories, coping mechanisms) is generally admissible under precedents like United States v. Johnson to help jurors understand seemingly counterintuitive reactions and assess credibility, as long as the expert does not vouch for the victim’s truthfulness or diagnose them. Nevertheless, once the expert (Krista Heeren-Graber) testified that sexual assault trauma can last "a long period of time" and offered an explanation for A.Z.'s post-assault behaviors, the district court's exclusion of evidence regarding A.Z.'s prior sexual assault became problematic. This exclusion prevented Zephier from offering an alternative explanation for A.Z.'s behavior, thereby undermining his defense. Relying on United States v. Bear Stops, the court determined that the combined effect of admitting the expert testimony and excluding the prior assault evidence was 'disproportionate' to the legitimate interests served by Rule 412 (rape shield law), thereby violating Zephier's Fifth and Sixth Amendment right to present a complete defense under United States v. Scheffer. The court concluded that this error was not harmless beyond a reasonable doubt, given the conflicting testimony on consent and minimal physical evidence, making A.Z.'s credibility central to the trial.
Analysis:
This case clarifies the interplay between Rule 412 (the rape shield law) and a defendant’s constitutional right to present a complete defense, particularly when the prosecution utilizes expert testimony to explain a victim's behavior. It reaffirms that while expert testimony on victim behavior is permissible to aid juror understanding, it creates a constitutional imperative for the defense to offer alternative explanations if such testimony bolsters the victim's credibility. The ruling establishes that even prior sexual assaults, if sufficiently connected by expert testimony to long-lasting trauma, can become relevant and admissible to counter the prosecution's narrative, preventing the jury from being led to a singular conclusion about the cause of a victim's trauma.
