Can Kobe Bryant Be Convicted on "He Said, She Said" Evidence Alone?

By MICHAEL C. DORF

Wednesday, Jul. 23, 2003

The similarities between the Kobe Bryant case and the O.J. Simpson case are obvious. An extremely popular athlete-one of such superstar status that his last name need not be uttered to identify him to millions of fans-stands accused of a heinous crime. A media circus ensues.

Yet there is a profound difference between the cases, as well. The Simpson prosecution was a classic "whodunit": No one denied that someone had murdered Nicole Brown and Ronald Goldman. The issue in the case was whether that someone was O.J. Simpson.

By contrast, the Bryant prosecution is a "what was done" case. Bryant admits to having sex with his accuser (as I shall call her, because her identity has not been made public) in a Colorado hotel room. He says it was consensual; she says it was not. There is no suggestion that somebody other than Bryant may have raped the accuser.

The whodunit/what-was-done distinction (which I have borrowed from a 2001 North Carolina Law Review article by Rutgers Professor and FindLaw columnist Sherry Colb) affects the meaning of an acquittal. Simpson's acquittal on criminal charges meant the jury was not persuaded beyond a reasonable doubt that Simpson-rather than somebody else-had killed Brown and Goldman. But if Bryant is acquitted, that will be because the jury has a reasonable doubt about whether a crime was even committed.

The whodunit/what-was-done distinction also has implications for how the trial proceeds. In particular, it bears on the kind of evidence that should be admitted to test the credibility of Bryant's accuser.

The Charges, the Colorado Criminal Law, and the Potential Penalty

Under Colorado law, which will apply in Bryant's case, a person commits sexual assault if he or she "knowingly inflicts sexual intrusion or sexual penetration on a victim" by causing "submission of the victim by means of sufficient consequence reasonably calculated to cause submission against the victim's will."

In plain English, sexual assault occurs when one person uses force, threatens to use force, or makes some other serious threat that leads a victim to have sex with him or her. (There are also other ways sexual assault can occur but they are not relevant here.)

The criminal complaint against Bryant alleges sexual assault accomplished by "the actual application of physical force or physical violence." That allegation, if proved, would make Bryant guilty of a class 3 felony, which carries a prison sentence of four years to life or probation for twenty years.

Even without proof of physical force or violence, Bryant could still be convicted. The penalty, however, would be less severe, and without physical evidence such as cuts or bruises, a conviction might be harder to procure. It would come down to "he said, she said."

Her Word Against His? Why Proof Can Still Be Beyond a Reasonable Doubt

What if the Bryant case is just a matter of "he said, she said?" Already the sports talk radio and television shows are buzzing with the suggestion that in that event, Bryant cannot or should not be found guilty beyond a reasonable doubt.

But that's not necessarily right. Consider an analogy: Adam Accuser tells the police that Deirdre Defendant, a professional boxer, accosted him in the laundry room of the apartment building in which they both live and threatened to "bash his head in" unless he gave her his vintage Boston Celtics uniform, personally signed by Larry Bird.

The police obtain a warrant, search Deirdre's apartment, and discover the uniform. At her trial for robbery, Adam testifies that, as he told the police, Deirdre used a threat of force to obtain his jersey.

Deirdre tells a different story. Deirdre acknowledges that the uniform formerly belonged to Adam. But she says it was a gift: when she admired the uniform as he was taking it out of the wash, he graciously gave it to her.

Could a jury find Deirdre guilty beyond a reasonable doubt? Of course. It all depends on whom the jury finds to be credible-Adam or Deirdre.

In the relevant respects, our hypothetical case is just like a sexual assault case in which the physical evidence is inconclusive. There are only two witnesses. One says an act was consensual; the other says it was coerced by threat of force. There is no disinterested third-party witness to say who is telling the truth and who is lying.

As this parallel shows, it is not the case that a jury cannot ever properly reach a guilty verdict in a "he says, she says" case.

Assessing the Credibility of the Accuser and of the Defendant

Assuming the physical evidence does not aid the jury in a "he said, she said" case, how does it decide whom to believe? In general, jurors can draw on everyday experience to determine who is lying and who is telling the truth-a skill everyone employs (with varying skill) in his or her daily life. But jurors can also look to the witnesses' motives to lie.

When they assess the accuser's credibility, they may ask whether she is so mentally unstable as to have fabricated or imagined the events she alleges? Does she have an independent reason to want to ruin the defendant's life? Does she stand to gain financially from a conviction (by filing a civil suit), and if so, is there reason to think that she is the sort of person who would bring a false criminal charge for that reason? Absent some such evidence, if the accuser strikes the jurors as credible, they may accord strong weight to her testimony.

With the defendant, the jury may have a harder time assessing credibility. Both innocent and guilty people will avidly deny their guilt. Thus, while the defendant may actually be innocent, the fact that he claims to be innocent is not very strong evidence that he truly is.

Almost anybody in Bryant's circumstances-whether wrongly accused or guilty-would not hesitate to deny the charges. Not only is the crime of which he is accused a serious one, but the consequences of a conviction are severe. Thus, in assessing Bryant's credibility, the jury will likely have to depend more on its assessment of his credibility when he testifies-Is his story internally consistent? Does his demeanor suggest prevarication?-than the mere fact of his denial.

The jury is not permitted to take account of Bryant's general character unless he specifically makes it an issue as part of defense. Should Bryant offer evidence that he is not the sort of person who would commit rape-for example, testimony by other NBA players or Lakers coach Phil Jackson that Bryant has a reputation for being a "gentleman"-then the jury will be permitted to consider that testimony, along with any rebuttal evidence offered by the prosecution, on the question of Bryant's capacity to commit the crime.

Evidence That Will Be Excluded: The Relevance of Promiscuity

When Bryant's lawyer cross-examines his accuser, and later, when the defense puts on its case, the defense attorney will want to provide evidence to the jury suggesting she is fabricating her claim. What kind of evidence might Bryant's lawyer present?

To begin, it's important to know that some evidence will be ruled out. Like the federal courts and most states, Colorado has a "rape shield" law that bars a defendant in a sexual assault case from introducing evidence of the alleged victim's prior sexual history with other persons.

Such laws are meant to prevent defense attorneys from publicly humiliating rape victims at trial-a common occurrence before rape shield laws were enacted. They are also meant to prevent defendants from suggesting that the victim somehow "asked for it," or worse, that as a "loose" woman, she may be raped with impunity.

In addition to these justifications for excluding the accuser's prior sexual history, there is also doubt about whether the accuser's general sexual history is relevant to the issue of whether she consented to have sex with the defendant on the particular occasion in question. After all, the fact that a woman has consented to sex in the past-and did not bring a rape accusation-hardly suggests that she consented to sex when she says that a rape occurred. Indeed, if anything, promiscuity might seem to make a rape allegation more credible, not less, for it strips away one possible motivation for a false claim: to maintain a reputation for chastity.

Some Sexual History Evidence May Be Admissible Despite the Rape Shield Law

Despite its rape shield law, Colorado also provides for the rare circumstances in which an accuser's prior sexual history may be argued to be relevant. Colorado procedure allows a defendant to ask the trial judge (outside the presence of the jury) to make a preliminary determination whether to admit such evidence.

For example, Colorado law permits the defendant to show that the alleged victim has a history of bringing false rape accusations against men with whom she had consensual sex.

For now, however, there is no reason to think that the Bryant prosecution will be one of the exceptional cases in which evidence of the accuser's sexual history will be relevant notwithstanding the rape shield law.

With the prosecution having made none of its evidence public, it is too early to gauge the strength of the case against Bryant. Certainly he, like everyone, is entitled to the presumption of innocence. But if and when the case goes before a jury, Bryant's word alone may not be enough to prevent a conviction.


Michael C. Dorf is Professor of Law at Columbia University.

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