As we speak the Utah Supreme Court docket agreed with my argument {that a} defendant can not compel a rape sufferer to testify at a “rape protect” listening to. As an alternative, the defendant should set up (if he can) the admissibility of prior sexual historical past proof in different methods, corresponding to a proffer of anticipated testimony and authorized argument. The Court docket’s ruling solidifies the protections supplied to victims beneath Utah’s Rule of Proof 412. And since Utah’s rule makes use of the identical language discovered within the federal guidelines and plenty of state provisions, it would function a beneficial precedent in different instances.
I beforehand blogged concerning the case right here. In a nutshell, within the federal system and all states, “rape protect” guidelines require pre-trial hearings on whether or not proof referring to a rape sufferer’s prior sexual historical past is admissible at trial. For instance, Utah’s Rule of Proof 412 (which parallels Federal Rule of Proof 412) requires a defendant who intends to introduce a sufferer’s prior sexual historical past proof to make an in depth proffer of the relevance and objective of the proposed proof. The trial decide then holds a listening to and determines the admissibility of the proof. However what if the defendant desires to subpoena a sufferer to the listening to and query her about prior sexual historical past as a part of that willpower? Is forcing a rape sufferer to testify in step with the rule?
In December, I argued the case to the Utah Supreme Court docket on behalf of a sufferer, T.T., explaining that the rule doesn’t enable defendant to compel victims to testify at such a pre-trial listening to. As we speak, the Utah Supreme Court docket agreed with my place:
T.T. argues that when the district court docket dominated that Jolley [the defendant] had recognized “sufficient particular proof of prior sexual conduct between him and T.T. to acquire a listening to, no justification existed for forcing T.T. to take the stand and be questioned about her prior sexual historical past.” As she explains, the “solely objective of the rule 412 listening to at that time was to offer T.T. a chance to be heard concerning the admissibility of the proof—to not enable Defendant to drive T.T. to take the stand so he may query her.”
We agree with T.T. and conclude that each the district court docket and Jolley basically mistake the aim of a rule 412 listening to. As mentioned, rule 412 requires a celebration intending to supply proof that falls inside the scope of rule 412’s exceptions to “particularly describe[] the proof” in a movement. Utah R. Evid. 412(c)(1)(A). In different phrases, it’s the transferring social gathering’s obligation to establish the proof it seeks to confess prematurely of the rule 412 listening to. See id. And, as our court docket of appeals has defined, that description needs to be particular sufficient to permit “the district court docket to, amongst different issues, assess the probative worth of the proof and steadiness that worth in opposition to the concerns rule 403 enumerates.” See State v. Bravo, 2015 UT App 17, ¶ 27, 343 P.3d 306. It isn’t the district court docket’s burden on the listening to to establish proof for the transferring social gathering. Neither is it the sufferer’s obligation to supply testimony on the listening to in order that the transferring social gathering can meet its burden.
The Court docket additionally emphasised {that a} Rule 412 listening to isn’t designed for discovery. As an alternative, a “rule 412 listening to is designed for the presentation of argument on the admissibility of proof already recognized in movement by the transferring social gathering; it’s not designed to uncover or check that proof.”
I labored intently on the case with the Utah Crime Victims’ Authorized Clinic, together with its succesful director Heidi Nestel, and the Clinic’s expert trial court docket legal professional on the case, Crystal Powell. I perceive that the Clinic is already citing at this time’s resolution to assist forestall rape victims from being compelled to testify in different instances. That is appropriately. Because the Court docket noticed at this time, “Rule 412 guarantee[s] that sexual assault victims are usually not deterred from collaborating in prosecutions due to the concern of unwarranted inquiries into the sufferer’s sexual conduct.”
