Peter Nicolas, "They Say He's Gay": The Admissibility of Evidence of Sexual Orientation, 37 Ga. L. Rev. 793 (2003), https://digitalcommons.law.uw.edu/faculty-articles/296
Georgia Law Review
This Article seeks to fill an existing gap. Part II of this Article discusses the ways in which the sexual orientation of a victim, party, or witness is relevant within the meaning of Federal Rule of Evidence 401 and its state-law analogues, as well as when such evidence, although relevant, is nonetheless excluded due to its potential prejudicial impact.
Part III of this Article examines the hearsay rule and its exceptions to determine when, if ever, a person's assertion that he is gay can be admitted into evidence. Part IV of this Article discusses the applicability of the spousal privileges to same-sex couples, the protection afforded to conversations that gays and lesbians have with their physicians and psychotherapists about their sexual orientation, and one's ability to invoke the privilege against self-incrimination when asked about his sexual orientation.
Part V of this Article examines the rules governing the qualifications of witnesses to give opinion testimony, including the admissibility of expert testimony on the "gay panic defense" and the ability of lay witnesses to give their opinion as to a person's sexual orientation. Part VI of this Article discusses substitutes for evidence, including judicial notice of facts about gays and lesbians as well as legal presumptions about gays and lesbians.
This Article concludes that the questions raised in many of these cases, although novel and often with little or any precedent, can be answered by examining the policies underlying the implicated rules of evidence. Furthermore, judges, in ruling on the admissibility of evidence regarding a person's sexual orientation, should exercise caution to ensure that their rulings do not reinforce existing, inaccurate stereotypes about gays and lesbians or create a risk that jurors will decide cases based on an improper use of such evidence.