Sunday, December 6, 2009
Excepted Exception: Appeal Reveals Limited Applicability Of Minnesota's Other Source Rape Shield Exception
In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence.
At first blush, Minnesota Rule of Evidence 412(1)(B) appears to provide an identical exception to Minnesota's rape shield rule. It provides an exception to Minnesota's rape shield rule under the following circumstance:
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, to show the source of the semen, pregnancy or disease.
As is clear from the recent opinion of the Court of Appeals of Minnesota in State v. McBroom, 2009 WL 4251080 (Minn.App. 2009), there is an important distinction between the two exceptions.
McBroom sought to offer evidence of the DNA found during S.B.'s medical examination and S.B.'s statement to the physician that her most-recent consensual sexual encounter occurred one to two days before the assault. McBroom argued that the presence of DNA, despite S.B.'s report that she had taken a shower after the assault, indicated that S.B. had sexual intercourse after the assault and before the examination. McBroom argued that this evidence showed that he was not the source of the injuries observed during S.B.'s examination and cast doubt on S.B.'s credibility. After hearing arguments on two occasions and considering the relevant caselaw, the district court granted the state's motion to exclude the proffered evidence.
McBroom thereafter appealed, claiming that the DNA evidence was admissible under Minnesota Rule of Evidence 412(1)(B). But according to the Court of Appeals of Minnesota, one of the problems for McBroom was that "[e]ven though the [Bureau of Criminal Apprehension] found evidence of semen, the state did not offer that evidence at trial and there was, therefore, no need to show the source of the semen."
This ruling establishes the distinction between the two exceptions. Federal Rule of Evidence 412(b)(1)(A) applies as long as a criminal defendant is trying to prove that a person other than he was the source of physical evidence, which is what McBroom was trying to do. Conversely, Minnesota Rule of Evidence 412(1)(B) only applies when the prosecution's case includes evidence of semen, pregnancy, or disease, and because the prosecution did not present any such evidence, the exception did not apply.