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Rape-Shield, § 972.11 – Complainant’s Prior Sexual Conduct – Alternative Source of Sexual Knowledge

State v. Bradley Alan St. George, 2002 WI 50, reversing unpublished court of appeals decision
For St. George: Donald T. Lang, SPD, Madison Appellate

Issue: “Was the circuit court’s exclusion of the defendant’s proffered evidence of the child victim’s prior sexual contact with another child a denial of the defendant’s constitutional right to present evidence?” ¶2.

Holding: Application of § 972.11 to deprivation of the defendant of his constitutional rights is a question of “constitutional fact” that the appellate court determines independently. ¶16. The defendant claims that the prior conduct would show an alternative source of sexual knowledge. The defendant must satisfy a two-part inquiry:

¶19. In the first part of the inquiry, the defendant must satisfy each of five factors through an offer of proof that states an evidentiary hypothesis bolstered by a statement of fact sufficient to justify the conclusion or inference the court is asked to accept. The five factors are:
1) The prior act clearly occurred.
2) The act closely resembles that in the present case.
3) The prior act is clearly relevant to a material issue.
4) The evidence is necessary to the defendant’s case.
5) The probative value outweighs the prejudicial effect.¶20. After the defendant successfully satisfies the five factors to establish a constitutional right to present evidence, a court undertakes the second part of the inquiry by determining whether the defendant’s right to present the proffered evidence is nonetheless outweighed by the State’s compelling interest to exclude the evidence.

The defendant’s offer of proof failed the last three sub-parts of the first inquiry:

¶26. We conclude that the testimony that Kayla claimed to have been touched on the vagina does not show such precocious sexual knowledge that a jury would believe that some sexual contact with the defendant must necessarily have occurred. Without this inference by the jury, there is no reason for the defense to show that Kayla could have acquired sexual knowledge from prior sexual encounters. No inference, in this case, equals little if any relevance. Without the reasonable possibility that a jury would make the inference the defendant asserts, the defendant has not met factor three, relevance.¶27. Because we conclude the evidence was not relevant, factors four and five cannot be met. The evidence cannot be considered necessary to the defendant’s case (factor four), and the probative value of the evidence cannot outweigh any prejudicial effect (factor five).

 

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