People v. Abbot

New York Supreme Court · 1838 · Evidence

19 Wend. 192 (N.Y.Sup. 1838)

Updated August 22, 2026

Evidencerape evidenceconsentprosecutrixspecific actscross-examinationimpeachmentrelevance

Facts

At trial, the defense proposed to ask a magistrate about what the prosecutrix had sworn before him, to ask Mercy Foster whether she had seen the defendant take improper liberties with the prosecutrix while both women were at the defendant's house, and to ask the prosecutrix whether she had previously had criminal connection with other men. The defense also offered character evidence that the prosecutrix's truth and veracity had been bad several years earlier. The prosecutrix's account described the defendant's approaches and interviews as secret. The indictment included rape counts, yet the case was tried generally on all counts in the sessions court.

Issue

Whether, in a prosecution treated as one for rape or assault and battery with intent to commit rape, the defense may ask the prosecutrix about prior sexual intercourse with other men and introduce related impeachment evidence, and whether the excluded questions to other witnesses were proper. The court also considered whether the sessions court had jurisdiction to try the indictment while rape counts remained pending.

Rule

In a rape, assault with intent to rape, or simple assault and battery accompanied by fornication where consent is a defense, evidence of the prosecutrix's prior specific acts of lewdness or sexual intercourse with other men is competent because it bears directly on the probability of assent, not merely on general veracity. A witness may also be impeached by character evidence showing bad truth and veracity from several years earlier, because such inquiry is not inherently limited by time. By contrast, hearsay from a magistrate about prior testimony is improper absent an offer to show contradiction, and testimony that a witness never saw improper liberties is irrelevant when the alleged meetings were secret. A court lacking statutory jurisdiction over rape counts cannot validly conduct the trial while those counts remain in issue.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Phoenix, Caleb Morse is tried for assault with intent to rape Dana Ivers. Dana testifies that Caleb forced intercourse during a private encounter in a storage room. On cross-examination, defense counsel asks Dana whether she had previously engaged in sexual intercourse with other men, stating that the question is offered only to support an inference that she may have assented here.

Should the trial court allow the question?

Explanation. The majority held that when the charge is rape, assault with intent to rape, or a similar offense in which consent is a defense, prior specific acts of sexual intercourse with other men are admissible because they bear directly on the probability of assent. The evidence is not treated merely as an attack on general truthfulness; it is relevant to the main issue.