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Sex Crimes: Admission of Evidence / Part 2 of 2

Part 2:  Evidence in Sexual Assault Cases

We know that extraneous sexual assault allegations may be admissible in a trial against someone accused of sexual assault.  But how much of the accuser's past will the jury see and hear about?  The answer: that depends.  It depends on a few factors: the law, the facts of the case, and the judge. First, we will examine the law.  Our starting point will be Texas Rule of Evidence 412 (TRE 412), commonly known as the Rape Shield Law.

The Law

Texas Rule of Evidence 412 states the following: 

(a) In General. The following evidence is not admissible in a prosecution for sexual assault, aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault:

(1) reputation or opinion evidence of a victim's past sexual behavior; or

(2) specific instances of a victim's past sexual behavior.

 

(b) Exceptions for Specific Instances. Evidence of specific instances of a victim's past sexual behavior is admissible if:

(1) the court admits the evidence in accordance with subdivisions (c) and (d);

(2) the evidence:

(A) is necessary to rebut or explain scientific or medical evidence offered by the prosecutor;

(B) concerns past sexual behavior with the defendant and is offered by the defendant to prove consent;

(C) relates to the victim's motive or bias;

(D) is admissible under Rule 609; or

(E) is constitutionally required to be admitted; and

(3) the probative value of the evidence outweighs the danger of unfair prejudice.

 

(c) Procedure for Offering Evidence. Before offering any evidence of the victim's past sexual behavior, the defendant must inform the court outside the jury's presence. The court must then conduct an in camera hearing, recorded by a court reporter, and determine whether the proposed evidence is admissible. The defendant may not refer to any evidence ruled inadmissible without first requesting and gaining the court's approval outside the jury's presence.

 

(d) Record Sealed. The court must preserve the record of the in camera hearing, under seal, as part of the record.

 

(e) Definition of "Victim." In this rule, "victim" includes an alleged victim.

 

Notice that TRE 412 begins with a general "blanket" against the admission of the accuser's sexual past, either in the form of reputation or opinion or by specific instances of conduct. This means that the accused must find a way to persuade the court that one of the exceptions in (b) applies and that the probative value outweighs the danger of unfair prejudice (see TRE 412(b)(3)) to beat the general protection that TRE 412 affords the accuser. 

When a criminal defense attorney seeks to admit evidence of an accuser's past sexual conduct and such evidence relates to the credibility of the accuser, then the defendant's right to Confrontation under the Sixth Amendment and the Rules of Evidence will come into play. Johnson v. State, 490 S.W.3d 895, 909 (Crim. App. 2016).  Under the Confrontation Clause, a defendant has a right to challenge a witness' credibility or to show their possible bias, self-interest or motives in testifying. As stated in Johnson, "Trial judges retain wide latitude under the Confrontation Clause to impose restrictions on cross-examination based on such criteria as harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant."

The Facts of the Case

The unique facts of a particular case are inextricable from any analysis regarding the admissibility of an accuser's past sexual conduct.  Knowing the history of the accuser is paramount and requires a thorough investigation.  

Knowing whether history exists between the accused and the accuser is equally paramount. If it does exist, defense counsel must explore the nature of the history and whether the parties ever engaged in consensual sexual activity.  See the exception under TRE 412(b)(2)(B).  Even if you discover evidence of past consensual conduct, whether the jury hears such evidence depends on whether the court decides that the probative value outweighs the danger of unfair prejudice. TRE 412(b)(3). The likelihood of this balancing test weighing in the defendant's favor depends in part on how much credible evidence is presented to corroborate past consensual sexual conduct between the parties.   

Knowing whether the accuser has previously made false reports of sexual assault against the accused or others is also a fact that defense counsel must seek out.  Evidence of this kind may very well be admitted under TRE 412(b)(2)(E). The accused has a Constitutional right to confront witnesses, which, in general, includes attacking their credibility. 

In sum, it is essential for defense counsel to know and to develop the facts of the case in order to effectively argue that one of the exceptions to TRE 412 applies and the balancing test weighs in favor of admission of the accuser's past sexual conduct. 

The Judge 

As stated above, the trial judge enjoys significant latitude when deciding whether any evidence, including evidence under TRE 412, will be admitted in trial.  The trial judge's decision regarding the admission or exclusion of evidence will not be overruled by an appellate court so long as it the decision is correct under any applicable theory of law, even if the court gave an incorrect or inadequate reason for the decision.  Johnson v. State, 490 S.W.3d 895, 908 (Crim. App. 2016). 

What this means is the trial judge has a lot of room to decide whether or not to admit evidence of accuser's past sexual conduct.  Knowing the judge's past rulings on similar issues will inform defense counsel as to the likely outcome of the admissibility of such evidence in his/her trial.  In order to properly assess the strength of a case, a defense attorney must make an educated guess as to court's ruling on the admission of evidence relating to an accuser's past.  The truth is that the judge's decision will have a significant impact on how the jury assesses the credibility of the accuser and thus, the outcome of the trial. 

As stated in Part 1 of this blog, the current political climate very well may impact the decisions a judge makes on the admissibility of evidence in a sexual assault case.  As "...#metoo will likely pressure courts to make favorable rulings regarding the admission of other allegations" made against an accuser, it will also pressure courts to exclude an accuser's past sexual conduct. The truth is that politics does impact the criminal justice system including trial courts.  In light of this, defense attorneys will need to fortify their cases with robust independent investigations and properly preserve error in trial in order to pursue an appeal in case the trial judge excludes favorable evidence.  

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