United States District Court, D. New Mexico
ORDER GRANTING DEFENDANT'S SEALED OPPOSED MOTION
FOR ADMISSION OF RULE 412 EVIDENCE AND GRANTING
GOVERNMENT'S SEALED MOTION IN LIMINE TO EXCLUDE EVIDENCE
OF VICTIM'S SEXUAL BEHAVIOR AND PREDISPOSITIONS
MATTER comes before the Court following a hearing on the
Defendant's Sealed Opposed Motion for Admission of Rule
412 Evidence (Doc. 71) and the United
States' Sealed Motion In Limine to Exclude Evidence of
the Victim's Sexual Behavior and Predispositions
(Doc. 84). A sealed hearing on this matter
took place on May 18, 2018, at which time the Court heard the
parties' arguments, as required under Fed.R.Evid.
412(c)(2). Having reviewed the parties' pleadings and the
applicable law, the Court finds that the Defendant's
Motion for Admission of Rule 412 Evidence (Doc.
71) is well-taken, and is GRANTED.
The Court also finds that the Government's Motion In
Limine to Exclude Evidence of Victim's Sexual Behavior
and Predispositions (Doc. 84) is well-taken,
and is GRANTED.
is charged in a two-count indictment with sexual abuse and
aggravated sexual abuse of his then seventeen-year-old second
cousin, Jane Doe, which occurred on May 29, 2014 at
Defendant's residence in his bedroom, in violation of 18
U.S.C. §§ 1153, 2242(2)(B) and 2246(2)(C), and one
count of aggravated sexual abuse, in violation of 18 U.S.C.
§§ 1153, 2241(a)(1), and 2246(2)(A).
Government's Motion In Limine to Exclude Evidence Under
motion, the Government asks the Court to prohibit the defense
from seeking to present or elicit from any witness evidence
of the complaining witness's sexual behavior or
predisposition regarding third parties, as prohibited under
Federal Rule of Evidence 412(a). The express policy aim of
the rule is to “safeguard the alleged victim against
the invasion of privacy, potential embarrassment and sexual
stereotyping that is associated with public disclosure of
intimate sexual details and the infusion of sexual innuendo
into the fact finding process.” Fed.R.Evid. 412
advisory committee note to 1994 amendment. At the hearing,
defense counsel represented that she intends to abide by the
restraints imposed by Rule 412(a) and that she would not
purposefully elicit testimony that runs afoul of the rule.
Thus, the parties agree that Rule 412(a) prohibits the
admission of evidence of the victim's sexual behavior
with or predisposition towards third parties, and the Court
grants the Government's motion on this issue.
Defense's Motion for Admission of Evidence Under Rule
motion, the Defendant seeks admission of evidence of specific
instances of sexual behavior or encounters between him and
the complaining witness, which he offers to prove consent
under the exception described in Rule 412(b)(1)(B). The
Government agrees that Defendant may present evidence under
this exception, but objects on grounds that the defense has
not provided evidence of the specific instances at issue.
exception “require[s] proof in the form of specific
instances of sexual behavior in recognition of the limited
probative value and dubious reliability of evidence of
reputation or evidence in the form of an opinion.”
Fed.R.Evid. 412 advisory committee note to 1994 amendment.
There is not strong guidance about what constitutes
“specific instances” under Rule 412, but a case
out of the Sixth Circuit (United States v. Anderson,
467 Fed.Appx. 474 (6th Cir. 2012), summarized this issue:
Although the language of Rule 412(b)(1)(B) is unqualified, it
is well accepted that the admissibility of prior sexual acts
between the accused and the alleged victim in order to prove
consent is not absolute. A court can consider temporal
factors, such as the length of time between the previous
sexual act and the alleged offense, to determine whether such
evidence is admissible. See United States v.
Saunders, 736 F.Supp. 698, 702-03 (E.D. Va. 1990)
(finding sexual history between victim and defendant that
preceded alleged rape by three years admissible although it
was a ‘manifestly close question'); cf. United
States v. Pablo, 625 F.3d 1285, 1302 (10th Cir. 2010)
(evidence that victim made sexual advances towards
co-defendant the same night of the alleged rape not probative
of consent because it ‘occurred some time before the
alleged rape and in a different location from where the
alleged rape occurred').
467 Fed.Appx. at 477-78 (ruling specific instances over prior
10-year consensual relationship were admissible).
hearing, defense counsel proffered that she intends to put on
evidence of numerous specific instances of consensual sexual
encounters between Defendant and complainant that span a
two-year period, including dates, times, and locations.
Defense counsel specifically asserts that she has a
good-faith basis for the evidence she intends to present, and
for the cross-examination she intends to conduct on the
complaining witness about these specific instances. The Court
relies on defense counsel's representation that, as an
officer of the Court, she has a good-faith basis for
presenting this evidence. The Court grants Defendant's
Motion without prejudice to the Government raising the issue
during testimony at trial if the attorney for the Government
thinks the specific testimony is not within the exception.
the parties agree that Defendant may cross-examine the
complainant on evidence that falls under the Rule
412(b)(1)(B) consent exception. While the Government
expressed concern about harassment to the complaining witness
on cross examination, the Court retains its authority to
“impose reasonable limits on defense counsel's
inquiry into the potential bias of a prosecution witness, to
take account of such factors as harassment, prejudice,
confusion of the issues, the witness' safety, or
interrogation that [would be] repetitive or only marginally
relevant, . . . .” Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986). The Government can thus still make
the traditional legal objections to cross examination, which
the Court will entertain as they arise. This aligns with the
requirements of the Confrontation Clause, as well as
Defendant's right to present witnesses under the
Compulsory Process clause. See Richmond v. Embry,
122 F.3d 866, 872 (10th Cir. 1997) (explaining the
constitutional framework surrounding Rule 412).
the Court heard argument on the proffered testimony of Olsin
Charleston regarding the hearsay objection by the Government
and the exceptions argued by defense counsel. The Court
reserves ruling on this issue pending the defendant's