Why shouldn’t accusations be admissible evidence?

By themselves, such accusations should not be conclusive evidence, but they should cast doubt on the perpetrator’s denial of bad acts in the present case.

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There are some famous proceedings involving rape where bystanders who wanted to accuse the perpetrator of other rapes were not allowed to testify.  For instance, William Kennedy Smith (nephew of President Kennedy and his two brothers) was accused of rape, and the prosecutor wanted to include testimony by three women other than the victim.  “Three women — a doctor, medical student and law student — said that between 1983 and 1988 Mr. Smith either raped them or tried to. Twice, Judge Mary E. Lupo barred their testimony, rejecting arguments by the prosecutor, Moira K. Lasch.” 

Similarly, in connection with Brett Kavanaugh’s nomination to the Supreme Court, three women were prepared to testify that he had been involved in sexual assaults on them, but two were never heard from

“Only about 2% of all rape and related sex charges are determined to be false, the same percentage as for other felonies (FBI). So while they do happen, and they are very problematic when they do, people claim that allegations are false far more frequently than they are and far more frequently than for other crimes.  Put another way, we are much more likely to disbelieve a woman if she says she was raped than if she says she was robbed, but for no good reason.

“On a related note, only about 40% of rapes are ever reported to the police, and this is partly because victims know that if their claim becomes public, their every behavior will be scrutinized, they will be shamed for their sexual history, and they will be labeled as lunatic, psychotic, paranoid, and manipulative.  Just because someone does not report their crime does not mean it did not happen.” 

“While false accusations of sexual assault occur, statistics show they are rare. A widely respected 2009 study, authored in part by a University of Massachusetts professor, concludes that 92 to 98 percent of sexual assaults, in which the suspect is a nonstranger, are real. The same study explains why women who have been sexually assaulted often do not react in the same way as a victim of car theft or credit card fraud. 

“As long as crimes are reported by humans, there will be some small chance of a false allegation. But most publicized false allegations do not tar similar victims in the same way as a questionable allegation of sexual assault. In August, a Colorado man went on local TV asking for the return of his wife and two children who were missing. Days later, he was arrested in their murder. It is unlikely people will impose a mental question mark on their reaction to the next parent who is on the evening news pleading for the safe return of his kidnapped child.” 

The rules of evidence do permit testimony concerning other crimes.  Rule 413 of the Federal Rules of Evidence states “(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.” And in Rule 415 “In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation.” 

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity with that character. N.C. R. Evid. 404(b). Put another way, the evidence may not be used to show propensity. However, evidence of other crimes, wrongs, or acts is admissible for other purposes, such as proof of motive, opportunity, intent, plan, preparation, knowledge, identity, or absence of mistake, entrapment, or accident. N.C. R. Evid. 404(b).” 

Juries may be instructed as follows: 2.06 Evidence of Defendant’s Prior Similar Acts

You have heard [will hear] evidence that [defendant] previously committed acts similar to those charged in this case. You may not use this evidence to infer that, because of [his/her] character, [defendant] carried out the acts charged in this case. You may consider this evidence only for the limited purpose of deciding:

(1) Whether [defendant] had the state of mind or intent necessary to commit the crime charged in the indictment;

or

(2) Whether [defendant] had a motive or the opportunity to commit the acts charged in the indictment;

or

(3) Whether [defendant] acted according to a plan or in preparation for commission of a crime;

or

(4) Whether [defendant] committed the acts [he/she] is on trial for by accident or mistake.

Remember, this is the only purpose for which you may consider evidence of [defendant]’s prior similar acts. Even if you find that [defendant] may have committed similar acts in the past, this is not to be considered as evidence of character to support an inference that [defendant] committed the acts charged in this case.

Given the foregoing, not permitting testimony concerning prior acts of sexual assault would appear wrong in most instances.  Basically, if three or four women are willing to testify that the perpetrator committed an act of sexual aggression on them, the independent acts can be used to support the accusations which are made.  That being the case, William Kennedy Smith’s case was wrongly tried, and Brett Kavanaugh’s nomination to the Supreme Court should not have been approved.

I’d like now to bring this controversy to a simpler sphere, which is whether a consumer who accuses a merchant of “scamming” him should be believed when there are multiple examples online of that merchant scamming other consumers.  Take, for example, Justfly.com, which markets airline tickets. Justfly.com is branded as a scam artist in many different places. For example, Justfly.com A Scam Hiding In Plain Sight. and Justfly.com, is just a scam!! – Air Travel Forum – TripAdvisor. In fact, there is an active Facebook group called “Justfly.com Scam.”  Given this history, if a credit card company is asked to believe Justfly.com or its customer in a controversy, Justfly.com’s position should be automatically placed in doubt.  In order for Justfly.com to succeed, the credit card company should demand clear and convincing evidence that Justfly.com’s position is honest and correct.  However, my own experience with Justfly.com is that it does scam, and my experience with Bank of America credit cards is that the bank has rules of procedure which greatly favor the merchant over the customer, even if the merchant has a poor reputation like Justfly.com.

It’s not easy for me to write this article. I’ve been a customer of Bank of America since at least 1978, and in those 41 years I haven’t had many problems with its service. However, that has seemed to change over the past year or so, including the events I am going to describe here. Bank of America calls me a “Preferred Gold Client,” and you’d think that with the money they’ve made with me as a client they’d want to keep me. 

The central problem with our relationship is that I used my B of A Cash Rewards Card to buy an airline ticket from Justfly.com. In doing so, Justfly.com scammed me not once but twice. When I filed a claim against Justfly.com, the Bank sided with them. The Bank’s customer service people insisted that I had to prove my case against Justfly.com in written documents, which is virtually impossible when the transaction is mostly oral (over the telephone). I’ve been a bankruptcy lawyer of long standing, and I know how to present a case. But the Bank, apparently, was willing to side with a merchant that is a scam artist against a Preferred Gold Client. 

(I pointed out multiple times to Bank of America that Justfly.com had been accused of scamming by people all over the Internet.  But Bank of America said that this was irrelevant; it could not use evidence involving other situations when trying to resolve my claim.  This is a terrible choice.  If the merchant has a poor public reputation, the Bank should take that into account, for reasons discussed above).

Let me start from the beginning. I wanted to buy an airline ticket to Los Angeles on August 6 for a flight on December 17. I checked with Hipmunk.com, which is my “go to” service for such things, and they indicated a flight to be purchased from Justfly.com. So at 3:20 pm, I ordered the ticket from Justfly.com and also bought flight insurance. Justfly sent me a written confirmation. Then at 3:53 pm, Justfly notified me that the airline had cancelled the flight. Justfly did not charge my card for either the flight or the insurance. It never acknowledged that it had sold me flight insurance. At 6:04 pm I decided that I had to take an alternative flight, so I put in a new order with Justfly and they confirmed it. It would cost $458.03 including flight insurance. At 6:15 they sent me another email, telling me to choose my seat. At 6:16 they sent me an email with “travel deals.” At 6:22, they told me to “pack my bags” because they were handling everything. They told me that I would be on Frontier flight 6900 leaving at 4:06 pm on December 17 from BJX (Leon) and arriving at Los Angeles (LAX) at 6:02 pm. 

I then looked at the internet and discovered that there was a Flight 900 from Volaris leaving and arriving at exactly the same times. I could buy tickets through CheapoAir for $396.56 (including flight insurance). I bought it at 6:31 pm. I later learned that Volaris and Frontier are related and sometimes have joint flights. Apparently I had purchased a ticket on one of those joint flights, which is why they were the same except for the price. 

You’ll notice one glaring difference in the two Justfly purchases. One was made at 3:20 pm. Nothing happened until 3:53 pm when they said that they were having “issues” with the airline about the flight.  (No other information was ever given). That was 33 minutes later. But with the Frontier flight, I ordered it at 6:04 and by 6:15 (11 minutes later) they told me to choose a seat, and then they rapidly sent me two other emails, the last one being at 6:22 pm (18 minutes after the order) confirming the order. What this tells me is that within minutes of
3:20 pm order they knew they were going to have “issues,” or otherwise they would have spat out the welcoming emails as they did with the later order. 

On August 23, 2019, I did some further research and learned that Justfly was selling tickets on the Frontier flight for $394.87 and simultaneously on the Volaris flight for $435.05. These did not include flight insurance. My best recollection is that Justfly’s first sale to me was around $395.00, including flight insurance. 

On August 7 I called Justfly and told them that they had tried to scam me by pretending to cancel my flight and just keeping the tickets. They then sold me the same tickets a few minutes later for a higher price. I told them I wanted to cancel the flight because I had purchased the same flight through CheapOAir for significantly less. They first said they could only do that for a $75 charge and I said I wouldn’t do that. Then they went away to consult with someone and came back. They told me they would cancel for “7 to 10 dollars.” I wasn’t happy with that, but I agreed. The next day I found a charge from them on my credit card for $75. 

On August 8, that same day, I called Bank of America and complained. I had a lengthy conversation with a representative and he wrote up a claim report in which he reduced what I had to pay Justfly by $68. I told him that was OK with me. The claim was then marked as being in research. But on August 21, without warning to me, the $68 charge reappeared on my charge card statement. I called and was told that the bank had discussed matters with Justfly and was convinced that I could not prove my claim. That is, I couldn’t prove that they had offered “7 to 10 dollars” to resolve the dispute about the cancellation charge. The bank said that it was writing me a letter. 

The bank clearly misunderstood the situation. Justfly scammed me when it said that my first flight was cancelled, hoping that I would get another flight at a higher price, which I did. And then it scammed me a second time when it said I could cancel for “7 to 10 dollars,” knowing that I couldn’t prove my case when they got the bank to put back the charge. 

The bank favored Justfly over me. There was little point in doing that. Even if they favored me over Justfly,  Justfly would continue to allow its customers to use Bank of America credit cards. If they didn’t, they might lose a lot of business. Moreover, I can prove that Justfly scammed me in pretending that the first flight was cancelled.   Apparently, this matters little to Bank of America;  it has rules that favor the merchant over the customer. This is a dishonorable way of doing business. 

(Further investigation discloses that Justfly has a business model in which it tries to get cancellations in order to get fees.  It’s difficult to believe that Bank of America doesn’t know this.)

(According to a U.S. law set forth by the Department of Transportation (DOT), airlines must refund you the full price of the ticket even on non-refundable tickets, if you request to cancel within 24 hours for any reason. Every airline and travel aggregator I have dealt with in the past has honored this policy. 100% Refund — no questions asked.  I asked for cancellation about 6 hours after I purchased the second ticket from Justfly.  And I received the statement of cancellation within 18 hours of purchase.  Justfly never mentioned this).

My conclusion from all this is that accusations against a purported perpetrator of bad acts should be admissible.  By themselves, such accusations should not be conclusive evidence, but they should cast doubt on the perpetrator’s denial of bad acts in the present case.  In my case involving Justfly, there were three facts that supported denial of the $75 cancellation fee.  First, the fact that the cancellation fee arose from my need to get a new plane ticket when Justfly reported that the airline had cancelled my flight (but provide no proof of that, and further Justfly treated the second purchase far different from the first purchase).  Second, my testimony that Justfly had agreed orally to a 7 to 10 dollar cancellation fee.  Third, the public record that Justfly was routinely engaged in scamming customers, and that it had a business model of trying to charge fees for cancellations.

Bank of America was wrong because it refused to consider Justfly’s false report of cancellation of the first flight as having any connection with the $75 cancellation fee in connection with the second flight.  It was also wrong in giving no weight at all to the reports of scamming by Justfly or my testimony that Justfly agreed to waive the high cancellation fee in return for a lower amount.

For what it’s worth, as of September 2, 2019, Bank of America continue to show my complaint against Justfly as being “unresolved.”  This was just one of many examples of Bank of America’s sloppiness in handling my claim.

For related reasons, the Brett Kavanaugh case should not have been decided as it was.  One accuser (Christine Blasey Ford) testified at length that Kavanaugh had sexually molested her when they were teenagers, and he denied that accusation under oath.  But two other women accused him of similar conduct, and yet they were never permitted to testify.  In such a situation, a proceeding to approve Kavanaugh’s nomination to be a Supreme Court justice should not have concluded.  Strong and persistent efforts should have been made to obtain testimony from the other two women, which was not the case. This is not to say that no doubt was cast on the suggested testimony of the other two women, but once there was strong evidence provided by Ford, the evidence of the other two women should have been obtained (or there should have been clear evidence that they would or could not provide it).  Accusations of similar bad acts by an accused perpetrator should never be ignored, because such accusations may weigh in favor of the accusations being presently levied.

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