Character and Non-Character Evidence

Question 1

Sexual Assault Victim’s Past Behavior

Answer 1

1. In criminal sexual assault cases, the defendant cannot introduce reputation, opinion, or specific acts evidence about the victim’s sexual conduct with persons other than the defendant in order to prove consent by the victim.
2. The defendant may only admit evidence of the victim’s prior sexual conduct with the defendant.
3. However, if the prosecution introduces testimony or any evidence relating to the victim’s sexual conduct, the defendant can cross-examine the witness or otherwise offer evidence that specifically rebuts the prosecution’s evidence.
4. However, evidence of the victim’s sexual behavior may be introduced to impeach the victim’s credibility as a witness if:
   a. the defendant first makes a written offer of proof; and
   b. the court determines in a hearing outside the presence of the jury that the evidence is admissible.

Question 2

MIMIC Evidence

Answer 2

a. Evidence of a defendant’s prior bad acts is generally inadmissible to prove their propensity to commit the act at issue.
b. DE Standard to allow admission of prior bad acts:
1. material to an issue in the case;
2. not too remote in time from the charged crime; and
3. proven by plain, clear, and conclusive evidence.
a. the evidence is subject to a balancing test.
b. A party that intends to introduce evidence of a defendant’s prior bad acts should first seek a ruling from the trial judge as to the admissibility of the evidence.
c. Whenever such evidence is admitted, the jury must be given a limiting instruction.

Question 3

Defendant’s Similar Conduct in Sex-Crime Cases

Answer 3

a. In DE, in sexual assault or child molestation case, the general rule is that evidence of a defendant’s other similar acts is not admissible to prove the defendant’s general disposition to commit the charged crime.
b. However, such evidence may be admitted for non-propensity purposes, such as to show the defendant’s motive, intent, plan, etc.