Tara Reade’s case against Joe Biden is a political case, one that is being tried in the court of public opinion, of voters, rather than by a jury in an actual courtroom.
But what if she had a civil or criminal case for sexual assault or sexual harassment against Joe Biden and it was in court?
Specifically, would the evidence and the questions be different than those in op ed pieces and social media? Well, yes, for the most part, much of what people are arguing about would probably not make its way into the courtroom. For example, the endless what about-ism of political argument would not be permitted. The fact that Trump has been accused of sexual misconduct many times and has even admitted to it on tape is not relevant in a court case by Tara Reade against Joe Biden. Trump is not a party to the lawsuit. This should be relevant to voters in deciding which one to vote for, but we would not hear about it at a trial.
Here’s a quick legal guide on that subject. This is based on my knowledge of the rules of evidence and experience as an attorney for the past quarter of a century. It is with the caveat that my practice areas do not involve sexual assaults cases. So, I do not claim to be an expert on these kinds of cases, but I also do not come at it with an axe to grind or an agenda from having been on one side or the other. As for my political bias, I will reveal that I will vote for Biden against Trump but I don’t particularly like Biden and did not vote for him in the primary. I do not believe my political views inform what follows. The rules of evidence are apolitical.
With those caveats, here we go:
1. Reade’s past sexual history? Not admissible. The Rape Shield Laws render evidence of the alleged victim’s past sexual relationships inadmissible. Evidence of victim’s alleged promiscuity is not admissible.
2. Evidence from landlords in California about how Reade was a deadbeat tenant who manipulated her landlords, didn’t pay the rent, played herself up as down on her luck and needing help. Not admissible. This is character evidence and it is not admissible unless Reade were to make her own character an issue in the case by trying to bolster her case by introducing evidence of her own good character. Whether the victim is of good or bad moral character (doesn’t pay her debts, manipulates her friends) is not relevant to whether she is telling the truth in a sexual assault case. Reade’s credibility, the same as any party or witness, is an issue in the case, but reputation/character and credibility are not the same thing. This is a difficult concept for lay people to understand. People tend to think reputation/character and credibility are one in the same. They are not. Reade’s alleged manipulation and scamming of her landlords isn’t a felony and she hasn’t been convicted of a felony. (A felony conviction in the past ten years is usually admissible to show lack of credibility.) It’s relevant to a potential landlord in deciding whether to rent to her. Not relevant to whether she was sexually assaulted many years before.
3. Reade’s strange sexual obsession and praise for Vladimir Putin, as seen by her piece on Medium. This is likely inadmissible under the Rape Shield Law or just under the rules of relevance regarding relevance. To get this into evidence, the defense has to connect Reade’s pro-Putin piece on Medium to a political motive against Biden. If the defense can show Reade is a tool of Russian propaganda, the Medium piece is highly relevant. But if the Medium piece is the only evidence to show Reade is a tool of Russia, it’s likely inadmissible because by itself, it’s just weird and does not connect the dots. Even if relevant, it is likely excluded under Rule 403, which excludes evidence that is more unfairly prejudicial than it is probative of the thing to be proved. The Medium piece is very prejudicial against Reade, but by itself is not very probative of whether she has an ulterior motive for making these accusations. The judge has to balance the unfair prejudice against the probative value of the evidence and exclude it if it is more unfair to Reade than helpful to the jury.
4. “Believe All Women”, Kavanaugh hearings, Harvey Weinstein, feminism, etc. These might be allowed or come up during voir dire (jury selection), in the form of questions and answers between the lawyers and jury pool, but are not relevant evidence in the case and should not come during the evidentiary phase of the trial. “Believe all Women” is not a rule of evidence. For that matter, feminists mostly never made that claim. That is a mis-characterization of “I Believe Her.” Which is also not a rule of evidence.
5. The fact that Biden has not released his records. Not admissible. The judge, prior to trial, will have decided whether Biden must release his records. If the judge decides he must release them, they will have been released unless Biden wants to go to jail for contempt of court. If they have been released, the jury can see them if they are admissible and relevant. But the fact there was resistance by Biden or those who maintain those records to releasing them records is not admissible. If the judge decides they should not be released, Reade’s lawyers don’t get to insinuate that Biden is hiding something in those records. They don’t get to talk about documents that are not part of the evidence of the case.
6. Reade’s delay in reporting the alleged assault. Yes, this is highly relevant and there’s no basis for excluding it. Reade’s frequent praise for Biden over the years, to friends and on social media, also comes into evidence. These tend to show that Reade’s allegations are a recent fabrication or are inconsistent with her past statements. A change in one’s story suggests the story is untrue.
7. Evidence that victims of sexual assault often do not report it until many years later, due to PTSD, social stigma, fear that they will not be believed, etc., a/k/a the Harvey Weinstein case. This is Reade’s rebuttal to the evidence about her delay in reporting. She can testify that these are the reasons she waited. Whether or not she is believed, she has personal knowledge as to why she did what she did. But any other witness likely does not have personal knowledge and would be offering opinion. Opinion of this sort is only allowed from experts. To qualify as an expert, and the expert’s opinion would have to pass judicial scrutiny in advance as reliable. It is not enough for the witness to be qualified in the relevant field of expertise. The expert must also demonstrate that his or her opinion is based on sound methodology and is reliable under that methodology. Unlike the pundit-style experts you see on TV, this expert will have “to show his or her work” to the judge, similar to the way you sometimes had “to show your work” on a math exam. Assuming the expert can meet these standards, the evidence may come in. However, even if the judge allows the expert to discuss this subject, it is possible the judge might not allow the expert to offer an opinion on whether this is the reason Reade did not report her allegations sooner. It might be difficult for an expert to go from this general proposition — an explanation for why victims often delay reporting sexual assault — to having a reliable opinion on whether that is what happened in this particular case.
8. Tara Reade’s mother’s call in to the Larry King Show. This is hearsay, so it can’t be offered to prove that the contents of the call were true. It can’t be offered to prove there were problems. It can be offered to prove that Tara Reade’s reporting of problems is not a recent fabrication, to prove she told people like her mother there were problems many years ago. But what problems? There is no statement as to what kind of problems her daughter was having with Biden. The jury, upon hearing this clip, can only guess or speculate as to what problem Tara Reade’s mother is alluding to her daughter having with Joe Biden. Guesswork is not allowed in court. This may be a close call, a judge might think a jury could reasonably draw an inference from it, but I think it is inadmissible because it does not shed any light on whether Tara Reade had told anyone of a sexual assault at the time, and therefore it is not helpful to the jury. The trial is not about whether there were any “problems” between these two, which could mean almost any kind of workplace complaint, but rather, was there a sexual assault. This just does not shed light on the subject.
