Relevancy & it Limits: Sexual Conduct

Question 1

How is evidence of a victim’s past sexual behavior or alleged sexual predisposition treated?

Answer 1

• Excluded
  
  • In a civil or criminal case, the alleged sexual misconduct of the alleged victim’s sexual behavior, predisposition or any other sexual history is exclued
    
    • ​​Sexual Behavior - actual sexual physical conduct, use of contraceptives, fantasies & activities that imply sexual activity
    • Predisposition - how a person dresses, lifestyle choices, dresses

412

Question 2

When is the victom’s past sexual behavior or sexual predispostion allowed?

Answer 2

• In a criminal case to show:
  
  • consent
    
    • past sexual conduct bet this particular P & D
  • source of semen
    
    • Past acts w/other men close in time, and the D was not the source of the semen
• Ir will not be admissible UNLESS
  
  • Notice is given to the opposing pty
  • review in camer by the judge AND
  • the evidenc allegs sexual misconduct

Question 3

In criminal cases, when the D is accused of child molestation or sexual assault, how is the evidence of acts by the D treated?

Answer 3

In cases of alleged sexual assault & child molestation:

• specific acts by the D are Admissible and may be considered as they bare on any relevant matter including propensity, disposition to commit sexual offenses
• admissible is subject to judicial discretion
• they need not be tried, just alleged which meet
  
  • preponderence of the evidence standard
• do not have to predate current crime

413, 414

Question 4

In criminal cases, when may specific acts of the D be admitted when seeking damages/relied of a pty’s alleged sexual assault or child molestation?

Answer 4

• Specific acts may be admitted for propensity and predisposition subject to the discretion of the judge
• 403 balancing test is used

415

Question 5

Question 3

Darren came home late one night to find that his apartment had been ransacked. He filed a claim under his renter’s insurance policy to recover his losses. The insurance company desired stronger evidence of Darren’s break-in because it found the report to be untrustworthy. The insurance company also requested that Darren take a polygraph. Darren refused and filed an action to force the insurance company to pay. The insurance company now attempts to introduce the fact that Darren refused the polygraph.

Is Darren’s refusal admissible?

(A) No, because the prejudicial effect substantially outweighs the probative value.

(B) No, because it would violate Darren’s constitutional right to avoid self-incrimination.

(C) Yes, because Darren’s conduct can be construed as an admission by conduct.

(D) Yes, because polygraphs are common, and if properly administered, most courts will admit such evidence.

Answer 5

(A) No, because the prejudicial effect substantially outweighs the probative value.

Question 6

Question 4

The defendant was out boating on the lake with his friends. A man was swimming in an area designated “no boating” when the defendant hit him. There were several witnesses on the beach, including the beach patrol lifeguards. The police were called and responded immediately. The man claims that the defendant was intoxicated, that he was driving within the “no boating” zone, and that he was traveling at an excessive speed when he hit the man. The man’s attorney wishes to introduce testimony from the man’s wife that the defendant called her the day after the accident and offered to pay all of the man’s medical bills.

Is the testimony admissible?

(A) No, because it is against public policy.

(B) No, because it has no legal relevance.

(C) Yes, because it is an indirect admission of fault.

(D) Yes, because it is relevant to the issue of damages.

Answer 6

(A) No, because it is against public policy.