Animals are Victims too

Evidentiary Proof

The Proof is in the Pudding

Evidentiary and Burden of Proof Issues

Evidence and the burden of proof are very important for a prosecutor to obtain a conviction of animal sexual assault. In a jury trial evidence must be proven beyond a reasonable doubt. Beyond a Resonable Doubt is the standard that must be met by the prosecution's evidence in a criminal prosecution, which shows that no other logical explanation canbe derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that aperson is innocent until proven guilty. This is the highest standard of proof in a court of law. 

Below are some evidentiary hurdles that a general animal sexual assault case in any state might face in proving beyond a reasonable doubt the accused offender committed sexual assault against an animal: 1) Admission of Prior Crimes, Wrongs, or other acts; 2) Testimony of Expert Witness; 3) Admission of prior sexual assault or molestations. 

Photo Credit:  News5 Cleveland

Photo Credit: News5 Cleveland

Testimony of Expert Witness 

Pursuant to Federal Rules of Evidence (FRE) 702, 'Testimony by Expert Witness' a wintess is qualified as an expert witness by the court using the following rules: "A witness who is qualified as an expert by knowledge, skill, experinece, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scentific, technical, or other specialized knoledge will help the trier of fact to understand the evidence or ot determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimonu is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." 

Meaning that after a witness such as a veterinarian or veterinary technican who examined or observed with a reasonable belief that the animal has been sexually assaulted or physically abused, is certified by the court as an expert witness can testify to any and all findings and evidence involved in the case. 

Additionally, FRE 703 "Bases of an Expert," states the following: "An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect." 

Meaning that an expert witness can base their opinon on any and all facts observed or made aware of during the course of the investigation. As long as other experts in the same field, such as a veterinarian or veterinary technican would also reasonably rely on these facts or data in forming an opinion do not need to be admissible in court for the opinoin of the expert witness to be admitted. 


Admission of Prior acts in general 

FRE 404(b) "Crimes, Wrongs or Other Acts," states the following: "(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice."

Meaning that any evidence of a crime, wrong or other act is not admissible as evidence to prove that character of a persons that on a particular occassion they acted in accordance with their character. But, this evidence is allowed to show the following: 1) motive, 2) opportunity, 3) intent; 4) preparation; 5) plan; 6) knowledge, 7) identity; 8) absence of mistake; or 9) lack of accident. 

The purpose and the reason behind exlduing propensity FRE 404(b) evidence is the potential risk to prejudicing the jury of the defendant's guilt by admitting evidence of the defendant's prior crimes, which could cause the jury to convict based on that prejudice. 

According to the U.S. Supreme Court allows the admissibilty of propensity evidence when it serves both a proper and relevant purpose to the case and when the evidence is more probative than prejudicial in nature.


admission of prior assaults and molestations

The passage and enactment of the Violent Crime Control and Law Enforcement Act of 1994 (VCCA) made it possible for prosecutors to admit evidence of prior assaults and molestations agasint an alleged offender in the same crime. The VCCA overrides any restrictions of admissibility under FRE 404(a) and FRE 404(b). The VCCA became FRE 413, 414 and 415. 

FRE 413 "Similar Crimes in Sexual Assault Cases" "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. ... "

FRE 413 allows the court to admit any evidence of the alleged offender's acts of sexual assault. It defines the limitations of the rule and sexual assault. 

FRE 414 "Similar Crimes in Child Molestation Cases"  "a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant. ..."

FRE 414 is similar to FRE 413 in allowing the court to admit any evidence of alleged offender in the present case acts of any other molestations. FRE 414 also defines the limitation of the rule and child molestion in section (d). 

Whereas FRE 415 allows in a civil case for a claim of relief for the court to admit evidence that the accused party committed any other sexual assault or molestations. 

Rule 415 "Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation: (a) Permitted Uses. 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. The evidence may be considered as provided in Rules 413 and 414. ..."

Application:  Can prior animal cruelty act be admitted as evidence?


Permitting prior convictions of animal sexual assault, animal pornography, as a sex crime, will be important in cases of repeat or habitatual offenders in establishing a pattern and in showing a connection between animal sex and abuse crimes and human sex and abuse crimes.


In State v. Cargle, 488 S.E.2d 535 (N.C. 1997), Defendants Richard Eugene Cargle and Michael Paul Scott were convicted of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, first-degree murder on the basis of premeditation and deliberation and first-degree felony murder. 

On the evening of 4 November 1993, Cagle went across the street to a gay bar to play pool. Sometime later Cagle's girlfriend, Defendants Michael Scott and Ryan Jones all meet up with Defendant Cagle who playing pool with Dennis Craig House, the victim at the bar.  Cagle's girlfriend testified that while they were all walking back to the motel, Defendants Cagle, Scott, and Jones joked about robbing the victim. Jones testified that Cagle said he knew the combination to the victim's safe, which had about $4,000 and a pound of marijuana, and suggested that they rob him. At approximately 2:00 a.m., all three Defendants, and the victim decided to leave the motel and drive to the victim's home. The Defendant Scott took the knife from the motel. At the vtictim's trailer, Scott told Jones that the plan was for Jones to stab the victim while the victim was performing oral sex on Defendant Cagle. Shortly after that, Defendant Cagle walked out of the back room carrying a cat by the neck, which he proceeded to slam the cat's head against the wall causing cat's head split open. Defendant Cagle then bashed the cat's head on the fish tank. Then sometime later Defendant Jones stabbed the victim in the back, Defendant Scott joined in by punching the victim in the head, and Defendant Cagle stabbed the victim a couple more times with the knife.

 Prior to trial, both Defendants Cagle and Scott filed written motions to bar any evidence related to the killing of the cat. The court granted the motions based on Rule 403, finding that "any probative value the evidence might have is substantially outweighed by the danger or risk of prejudice or confusion of the issues." The trial court noted that it would reconsider its ruling during the trial if any "doors were opened" to the introduction of the excluded evidence. Following the defense cross-examination of State's witnesses, the court reversed its earlier ruling and found the defense had opened the door to the introduction of evidence about the killing of the cat and reasoned that evidence now had probative value, "as it bears on the question of intent, the state of mind, or in terms of showing a complete picture or context for the jury to understand the evidence in this case."  On appeal the Supreme Court concluded that the trial court did not err in ruling the door was opened by the defense allowing the introduction of the evidence about the killing of the cat. "The State has the right to introduce evidence to rebut or explain evidence elicited by defendant although the evidence would otherwise be incompetent or irrelevant." State v. Johnston,344 N.C. 596, 605, 476 S.E.2d 289, 294 (1996)

Thus, it is not improbable to reason that Judges will allow the admission of prior animal cruelty convictions, animal sexual assault convictions, and animal neglect convctions under FRE 403's balancing test.  If the evidence is more probative than prejudical to the jury in making their decision on the defendant's guilt or innocence the Judge will allow the evidence to be admitted.