Pg 19 Flashcards
What is the procedure to offer evidence of a victim’s past sexual behaviour under an exception in the rape shield law?
The party that wants to offer the evidence must:
– file a motion that specifically describes the evidence and states the purpose it will be offered for
– at least 14 days before trial unless there is good reason for a different time like the evidence couldn’t have been gotten sooner by due diligence, it newly was discovered, etc.
– serve a motion on all parties
– notify the victim or guardian
– hearing done in camera in the judge’s chambers that allows the victim the right to attend and be heard and the record for this stays sealed
What is the difference in the procedure to determine whether evidence about a victim’s past sexual conduct would be admissible between the FRE and California?
- The FRE requires filing a motion 14 days before trial, serving it on all parties, notifying the victim, and then having an in camera hearing in the judge’s chambers
- The CEC only requires notice and a hearing if you are bringing up the way the victim was dressed on the event in question
Why is the appropriate wording in a sexual misconduct case before a defendant is found guilty “alleged victim”?
Because of the dispute between whether the misconduct happened. Say “accused“ for defendant and “alleged victim“ for the victim
If a defendant is prosecuted for raping a victim, and the defendant wants to offer evidence that the victim asked him to get rough with her on that night, would that be allowed?
Yes, because it involves the event in question, not evidence of past sexual history or predisposition. So do not get tricked by this
What is involved in the exception to the 404 ban on character evidence for sexual assault in a criminal case that involves the defendant’s similar or prior acts?
This allows evidence of the defendant’s prior acts of sexual misconduct to be used as a propensity inference in a criminal case where the defendant is accused of sexual misconduct. But the only form this can be introduced in is specific instances, no reputation or opinion are allowed
What is the rationale for allowing evidence of a defendant’s similar or prior sexual misconduct in a criminal case where he’s being charged with sexual misconduct?
The idea is that once a sexual predator, always a sexual predator. So evidence that he committed a prior rape is probative of his likelihood to do it again
If the prosecution intends to introduce acts in a criminal case of the defendant’s similar or prior sexual misconduct as they are allowed to do under an exception to the 404 character ban, what does the prosecution have to do first?
Must disclose it to the defendant, with the witness’ statements or a summary of the expected testimony at least 15 days before trial or at a later time if the court allows it for good cause
Is it necessary under the exception to the 404 ban on character evidence for defendant’s similar or prior sexual misconduct acts that both the crime charged and the past act involve sexual assault?
Yes
In order to bring in evidence of the defendant’s prior similar acts of sexual assault under the exception to the 404 ban on character evidence, is it necessary that the defendant was convicted of his past act?
No, that evidence can still come in if the person was acquitted or if there is sufficient evidence for the jury to find by a preponderance of the evidence that the prior assault happened it can still come in.
However, out of fairness to the defendant, if he was not convicted of the prior charge, he is free to offer evidence that disputes it
What is the definition of sexual assault?
A crime involving any contact without consent between any part of the defendant’s body or an object and another person’s genitals or anus, contact without consent between defendant’s genitals or anus and any part of another person’s body, getting sexual pleasure from inflicting death/bodily injury/physical pain on another, or an attempt or conspiracy to engage in conduct described above
What are some factors to consider in deciding whether to admit evidence of defendant’s prior acts of sexual misconduct as an exception to the 404 ban on character evidence?
– The similarity of the prior acts to the act charged
– closeness in time of the prior act to the new one
– frequency of the prior act
– presence or lack of intervening circumstances
– necessity of evidence beyond the testimonies already offered at trial
What are the three standards that apply when you allow a defendant‘s prior acts of sexual misconduct to be brought in under the exception to the 404 character ban?
– the judge uses a sufficiency standard to decide if the jury should hear the evidence
– the jury must conclude by a preponderance of the evidence that it proves the prior event happened.
– Then the jury must determine whether the prosecution has met its burden of proving guilt beyond a reasonable doubt in the current case
How does California differ from the FRE regarding the exception for a defendant’s prior similar acts of sexual misconduct to the ban on character evidence?
California also allows other offences to be introduced that are not dealing with sexual assault, so it could be battery or some thing else
What is involved in the exception to the 404 ban on character evidence that deals with child molestation?
This only applies to criminal cases, and if the defendant is accused of child molestation, the court can admit evidence that he previously committed other acts of molestation. This can only be done through specific instances, not reputation or opinion.
If a prosecutor wants to provide evidence of a defendant’s past child molestation in a current child molestation case, what does the prosecution have to do?
He must disclose this to the defendant, including the witness’ statements or a summary of the expected testimony, at least 15 days before trial, or at a later time if the court allows it for good cause
