Frantz Bernard, et al. v. East Stroudsburg University, et al.

Under FRE 415 evidence of a defendant’s similar acts of “sexual assault” may be admitted into evidence in a civil trial. Whether such evidence is admissible depends on the court’s application of FRE 403 and whether the evidence’s probative value outweighs any unfair prejudice. Since evidence of other wrongs to prove a person’s character historically has been inadmissible, the Circuit Courts have had difficulty in determining what constitutes a “sexual assault” under FRE 415 and what effect that rule has, if any, on the traditional balancing test under FRE 403, resulting in conflicting Circuit Court opinions concerning these issues. Also, FRE 803(8) allows a public record to be admitted into evidence as a hearsay exception, but the Circuit Court case law is conflicting as to whether FRE 803(8) also applies where a governmental entity commissions a private contractor to conduct an investigation of wrongdoing. Accordingly, in this Petition for Certiorari the following questions are presented to this Court: I. Whether the lower courts applied the correct FRE 403 balancing analysis in refusing to admit into evidence the witnesses’ testimony that the Defendant Dr. Sanders had caressed each witness’ “thigh” or “crotch” on the top of or through his pants, clear evidence of similar acts of “sexual assault” under FRE 415, on the ground that the testimony supposedly was too “equivocal” to be admissible at trial.