California Evidence Code section 352 provides:
The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
This morning in my local paper, an article was published about Scott Hicks, the man who, in 2002, went to the Bishop of Fresno and reported that he had been sexually abused by now Bishop Tod brown of the Diocese of Orange. This is now in the news because Bishop Brown did not disclose this allegation after he nailed The Covenant With the Faithful to the door of Holy Family Cathedral.
In Fresno, diocese officials say they conducted several interviews of Hicks and others, and had the claim reviewed by a diocese sex-abuse board. Afterwards, the diocese found there "was absolutely no factual or credible basis whatsoever" to Hicks' story, according to a statement by the Rev. Jesse Avila.
I am no fan of Tod Brown. I had one personal encounter with him in which I was left with the impression of a cold and imperious man, and frankly if I were a priest in the Diocese of Orange, I would have a strict "CYA" policy of ensuring that any conversations or discussions with diocesan officials was well documented, so as to have a paper trail that may mean the difference between keeping my job and spending winters in Toronto (as an aside, I think there is little chance the parish of St. Norbert's will see their pastor, Msgr. John Urell, again in that capacity).
That said, I have problems with this "expose" and the credibility of Mr. Hicks. As an attorney, I find his story lacking corroborating evidence and - without such - the validity of his previously repressed memories is questionable.
One day, when Hicks was 12, he went to confession with other students. He confessed to peeking at his father's Playboy, he says, and told Father Tod Brown.
Afterwards, Brown asked Hicks to come with him. Hicks followed Brown into a side room in the church, where he says Brown abused him.
"After that, I blank. It goes dark," Hicks says.
Hicks' recollection of the two other times he says he was abused is less clear. All he remembers of the second incident is walking with Brown past the church rectory, spotting another priest and hoping the priest would save him. But the priest walked by. Hicks can't recall what happened next, but believes Brown assaulted him.
"I feel the same fear, the same panic when I think of that time, just like I had during the first time it happened," he explains.
The third time, Hicks says he was in a car driven by a man – not Brown – to an office off church grounds. There, he says he was abused by the man and Brown, who he says arrived later. He doesn't recall anything else.
"The mind can do that, you know – block things," he says quietly. "I can still do it."
The mind can, indeed - and it can also play tricks on one as well. But while speaking of playing tricks, I have to wonder why this article is being published and whether this will influence the local jury pool in the case now pending against the Diocese of Orange for what is pled as sexual assualt against a student of Mater Dei High School by a former lay teacher.
Is it relevant? No, not to the matter at issue before the Orange County Superior Court. And for those who might argue that it is, as it goes to Bishop Brown's credibility, I must defer to Evidence Code section 352 - it is more prejudicial than probative.
Is it sensational? Perhaps. But the courtroom is not the forum for tabloid fodder. Presently, this is the only accusation about Brown himself being a predator and no ascertainable facts remain available to meet a judicial burden of proof. Did it happen? I don't know - if a suit were brought now, based on what can be presented I would issue a summary judgment for the defense. I hate to see a newspaper publish an article like this because it can mislead the gullible, of which it seems our society is well populated.