DEFENDANT’S MOTION TO ADMIT RAPE SHIELD RELATED EVIDENCE AND TESTIMONY UNDER C.R.S. 18-3-407
THE DEFENDANT, through his counsel above-named, hereby MOVES TO ADMIT Evidence Relating to the Named Victim’s recent false claim of rape under C.R.S. 18-3-407.
1…C.R.S. 18-3-407, Colorado’s Rape Shield statute states as follows:
VICTIM AND WITNESSES PRIOR HISTORY – EVIDENTIARY HEARING- VICTIM’S IDENTITY – PROTECTIVE ORDER
(1) Evidence of specific instances of the victim’s or a witness’s prior or subsequent sexual conduct, opinion evidence of a victim’s or a witness’s sexual conduct, and reputation evidence of the victim’s or a witness’s sexual conduct may be admissible only at trial and shall not be admitted in any other proceeding except a proceeding pursuant to paragraph (c) of subsection (2) of this section. At trial such evidence shall be presumed to be irrelevant except:
(2)…In any criminal prosecution … (for a sex offense including sex assault CRS 18-3-402 and sex assault on a child CRS 18-3-405)…if evidence that is not excepted under subsection (1) of this section… evidence that the victim or witness has a history of false reporting of sexual assaults (emphasis added) is to be offered at trial, the following procedure shall be followed.
- A written motion shall be made at least 30 days prior to trial unless for good cause shown…to the court and to the opposing parties stating that the moving party has an offer of proof of the relevancy and materiality of the evidence of…the specific instance of sexual conduct, opinion evidence, reputation evidence, history of false reporting…that is proposed to be presented.
- The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.
- If the court finds that the offer of proof is sufficient, the court shall notify the other party of such. If the prosecution stipulates to the facts contained in the offer of proof, the court shall rule on the motion based upon the offer of proof without an evidentiary hearing. Otherwise, the court shall set a hearing to be held in camera prior to trial. In such hearing, to the extent the facts are in dispute, the court may allow questioning of the victim or witness, regarding the offer of proof made by the moving party, or otherwise allow a presentation of the offer of proof, including but not limited to the presentation of the witnesses.
OFFER OF PROOF
3… This is the section of the rape shield motion where the attorney would provide the evidence for filing the rape shield motion. Keep in mind, they need to provide proof, a simple statement saying that this might have happened is not enough.
A REVIEW OF THE RAPE SHIELD LAW
4…C.R.S. 18-3-407, Colorado’s Rape Shield law provides that a named victim’s prior or subsequent sexual conduct or activity is presumed to be irrelevant. The Rape Shield law recognizes certain exceptions however including…similar evidence of sexual conduct offered to establish that the act(s) charged was not committed by the accused, and evidence of false allegations of rape.
5…Defense counsel is certainly not out to simply embarrass the named victim. We are not seeking to simply subject the named victim to psychological or emotional abuse. The defendant and his counsel are certainly not seeking to attack the victim’s reputation for sexual conduct. Nor are they seeking to smear the named victim. People v. Moreno, 739 P.2d 866 (Colo. App. 1987).
6…In determining whether to admit rape shield evidence and testimony, the trial court is to engage in a balancing test. The trial court looks at the probative value of the proffered evidence and weighs it against the danger of unfair prejudice. See e.g., People v. Wallen, 996 P.2d 182 (Colo. App. 1999).
a… Here the defendant would show that the balancing test, does, in fact, fit the evidence that the defendant wishes to show through a rape shield motion.
7…This is a case of accusation and denial…There are no other witnesses and no other dispositive evidence… the named victim received no medical attention, there is no DNA evidence, no trace evidence, etc.
8…The defense cannot determine in the short time frame before trial the limits of their required rape shield investigation and what witnesses need to be interviewed and put under subpoena.
9… Here is where the defense would submit how the evidence they have is limited in scope and is indeed for the purpose of rape shield.
WHEREFORE, the defendant seeks to admit evidence and testimony of the named victim’s FALSE ALLEGATION OF RAPE.
By Shannon Lynch