TO: The Honorable Judge County District Court, and the above-named defendant and his attorney, Assistant Public Defender, Minnesota

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1 STATE OF MINNESOTA COUNTY OF XXXXX DISTRICT COURT XXXX JUDICIAL DISTRICT State of Minnesota, Plaintiff vs. XXXX XXXX XXXX Defendant. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO EXCLUDE EVIDENCE OF VICTIM'S PRIOR SEXUAL CONDUCT OR BAD BEHAVIOR D.C. File No. xxxxx C.A. File No.xxxxx TO: The Honorable Judge County District Court, and the above-named defendant and his attorney, Assistant Public Defender, Minnesota FACTS On September 30, 1998, St. Paul Police Officer S. S. was dispatched to XXXX Senior High School to investigate a criminal sexual conduct complaint. Upon arriving at the high school, Officer S. spoke with B.N.F., date of birth 9/8/84. B.N.F. told Officer S. that on September 28, 1998, and September 29, 1998, she had sexual intercourse with the defendant., date of birth 4/12/80. Officer S. S. subsequently spoke with the defendant. Initially, the defendant denied having sexual intercourse with B.N.F., stating that he knew she was a freshman and would get in trouble for "messing around" with her. However, when Officer S. confronted the defendant with B.N.F.'s statement, the defendant admitted having sexual intercourse with B.N.F. on two occasions. The defendant also claimed that B.N.F. had sexual intercourse with another male, D.M., on September 28, Sgt. M. G. did a follow-up investigation. During this follow-up investigation, the defendant told Sgt. G. that he knew B.N.F. was only 14 years old when he had sexual intercourse with her because she had told him her age prior to the act. The defendant again admitted to Sgt. G. that he had sexual intercourse with B.N.F. on two separate occasions. Sgt. G. also spoke with B.N.F. B.N.F. denied having sexual intercourse with D.M. Statements were subsequently obtained from M.R.B. and N.G. In their respective statements, both M.R.B. and N.G., who were with B.N.F. and the defendant on September 28, 1998 and September 29, 1998, deny B.N.F. had sexual intercourse with anyone but the defendant on those days. In fact, N.G. stated she was the person who had sex with D.M.

2 On January 6, 1999, the defendant disclosed D.M. as a potential witness in this case. LAW MINNESOTA LAW STRICTLY LIMITS EVIDENCE OF A VICTIM'S PRIOR SEXUAL CONDUCT. Long ago Minnesota enacted one of the nation's first "Rape Shield" laws to protect victims of sexual assault from the humiliation of having to testify about their entire sexual past, thus making them a further victim of the court system itself. The admission of such evidence is "strictly limited" by the rape shield law. State v. Carpenter, 459 N.W.2d 121 (Minn. 1990). The two exceptions to Minnesota's law prohibiting evidence of a victim's prior sexual conduct are set forth in Minnesota Statute , Subd. 3 which states: (a) When consent of the victim is a defense in the case, the following evidence is admissible: (i) evidence of the victim's previous sexual conduct tending to establish a common scheme or plan of similar sexual conduct under circumstances similar to the case at issue. In order to find a common scheme or plan, the judge must find the victim made prior allegations of sexual assault which were fabricated; and (ii) evidence of the victim's previous sexual conduct with the accused. (b) When the prosecution's case includes evidence of semen, pregnancy, or disease at the time of the incident or, in the case of pregnancy, between the time of the incident and trial, evidence of specific instances of the victim's previous sexual conduct is admissible solely to show the source of the semen, pregnancy, or disease. See, also, Minn. R. Evid. 412(1). Minnesota case law has clarified what is meant by "prior criminal sexual conduct." In State v. Kobow, 466 N.W.2d 747 (Minn.Ct.App. 1991), the Minnesota Court of Appeals examined the issue of whether a victim's allegations of sexual abuse constituted "sexual conduct" within the meaning of the Minnesota Rape Shield Statute. In holding that it did, the Minnesota Court of Appeals stated:

3 Appellant implies that "sexual conduct" only covers prior sexual acts of the complainant. However, the statute does not draw this distinction. In addition, Minnesota courts have applied the term "sexual conduct" to exclude evidence of cohabitation, State v. Hill, 309 Minn. 206, 211, 244 N.W.2d 728, 731 (Minn. 1976), cert. denied 429 U.S. 1065, 97 S.Ct. 794, 50 L.Ed.2d 782 (1977) and sexual preference. State v. Mar, 291 N.W.2d 223, 225 (Minn. 1980). Indeed, in State v. Carpenter, 459 N.W.2d 121 (Minn. 1990), the Supreme Court did not question the applicability of the rape shield law to the 14-year old victim; a victim clearly too young to consent. Id. at 125. We agree with the trial court that the term "sexual conduct" as used in Minnesota Stat includes "allegations of sexual abuse." Minnesota's rape shield laws strictly limit the admission of evidence of a "victim's prior sexual conduct." Carpenter, 459 N.W.2d at 125; see Minnesota Statutes , Subd. 3; Minnesota Rule of Evidence 404(c). Id. at 750. In the case at hand, consent is not a defense. See, Minn. Stat , Subd. 1(b). Therefore, the first two exceptions to the statute are not applicable. Additionally, there is no evidence of semen, pregnancy, or disease so the third exception is inapplicable. Despite the prohibition of the rape-shield law, in certain cases, the due process clause, the right to confront accusers, or the right to present evidence will require admission of evidence otherwise excluded. State v. Friend, 493 N.W.2d 540 (Minn. 1992). Generally though, rape shield provisions do not affect the right to present a defense because they rest on the premise that a person's character is generally irrelevant to a specific case. State v. Crims, 540 N.W.2d 860 (Minn.Ct.App 1995). Unless and until a defendant shows the victim's sexual history to be relevant to the facts at bar, this particular form of character evidence is not admissible under the normal rules of evidence. Id. at 868. In making its determination on the issue, a court must balance the state's interest in guarding the victims privacy and protecting her from harassment against the accused's constitutional right of confrontation. It also must balance the probative value of the evidence against its potential for unfair prejudice. State v. Benedict, 397 N.W.2d 337 (Minn. 1986); State v. Caswell, 320 N.W.2d 417 (Minn. 1982); Jackson v. State, 447 N.W.2d 430 (Minn.Ct.App. 1989). The court may also consider the remoteness of the prior sexual history. See, State v. Dornack, 329 N.W.2d 839 (Minn. 1983)(finding that the trial court had not violated the defendant's constitutional right to confront his accuser when the court refused to admit evidence concerning certain sexual conduct of the victim some 5 years before the incident in question, in part because the evidence was remote). IN ORDER FOR EVIDENCE OF A VICTIM'S PRIOR SEXUAL CONDUCT TO BE ADMITTED, DEFENDANT MUST GIVE NOTICE AT LEAST THREE BUSINESS DAYS PRIOR TO TRIAL OF HIS INTENT TO OFFER SUCH EVIDENCE.

4 Minn. Stat , subd. 4 sets out the procedure for admitting a victim's prior criminal sexual conduct. The statute outlines the procedure: (a) A motion shall be made by the accused at least three business days prior to trial, unless later for good cause shown, setting out with particularity the offer of proof of the evidence that the accused intends to offer, relative to the previous sexual conduct of the victim; (b) If the court deems the offer of proof sufficient, the court shall order a hearing out of the presence of the jury, if any, and in such hearing shall allow the accused to make a full presentation of the proof; (c) At the conclusion of the hearing, if the court finds that the evidence proposed to be offered by the accused regarding the previous sexual conduct of the victim is admissible under subdivision 3 and that its probative value is not substantially outweighed by its inflammatory or prejudicial nature, the court shall make an order stating the extent to which evidence is admissible. The accused may then offer evidence pursuant to the order of the court. [Emphasis added]. See, also, Minn. R. Evid. 412(2). Defendant has failed to make a timely motion to introduce this evidence. In State v. Larson, 389 N.W.2d 872 (Minn. 1986), the Minnesota Supreme Court upheld exclusion of cross-examination of the victim about prior sexual conduct with the defendant when the defense failed to follow the statutory requirement. The Minnesota Court of Appeals did the same thing in State v. Rothering, 346 N.W.2d 346 (Minn.Ct.App. 1986). Additionally, there has not been a sufficient offer of proof that D.M. did in fact have sexual intercourse with B.N.F. There is only the defendant's mere allegation. An allegation which is not supported by B.N.F., M.R.B., N.G., or anyone else. In fact, there is evidence refuting this allegation. Finally, the probative value of this evidence would not substantially outweigh its prejudicial nature. The evidence has no probative value. Whether B.N.F. had sexual intercourse with one other person, five other people, or no one has no bearing on whether she had sexual intercourse with the defendant. If defense counsel sought to introduce this evidence, it would be for the sole purpose of attacking the victim's character through specific bad acts which is not admissible under the rules. Furthermore, evidence of the victim's prior sexual conduct would be extremely prejudicial to the state.

5 DEFENSE CANNOT ATTACK VICTIM'S CHARACTER THROUGH SPECIFIC BAD ACTS TO SUBVERT MINN. STAT AND MINN. R. EVID The law is extremely clear in Minnesota that a defendant may not attack a victim's character through specific alleged bad acts. Minn. R. Evid. 608(b) prohibits such evidence: Specific Instances of Conduct: Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. In State v. Stafford, 404 N.W.2d 918, 921 (Minn.Ct.App. 1987), the defense sought to introduce evidence of the victim's prior false statements about her virginity and chastity. The trial court ruled the evidence was inadmissible under Minn. R. Evid. 608(b). The Court said: "This ruling was correct. Specific instances of witness's conduct for the purpose of attacking her credibility may not be proved by extrinsic evidence," citing State v. Clark, 296 N.W.2d 359, 368 (Minn. 1980). The court also found it inadmissible under Minn. R. Evid. 404(c), the predecessor to Minn. R. Evid In State v. Myers, 359 N.W.2d 604, 608 (Minn. 1984), the defendant sought to testify that the juvenile victim of a sexual assault once lied about taking combs from a neighbor's house and claimed the trial court denied his sixth amendment right to confront his accuser by failing to let him. The Supreme Court ruled that it was inadmissible under Minn. R. Evid. 608(b). In Powe v. State, 389 N.W.2d 215, 219 (Minn.Ct.App. 1986), the Court found that the trial court had not erred in excluding evidence of a juvenile victim's prior sexual experience to show how she "acted and projected herself in the community," including lying about her age, falsely claiming she had a baby and expressing an interest in prostitution. The court said: "It did not establish a predisposition to fabricate the charges and the potential for unfair prejudice substantially outweighed its probative value. Id. at 220. CONCLUSION For the reasons stated above, the State of Minnesota respectfully requests that this court exclude defendant from introducing or attempting to introduce any evidence of the victim's prior sexual conduct or bad character. Dated: Attorney for Plaintiff

6 MN Lic. No. xxxxx