Thursday, April 27, 2017
For the past 27 years, Ronald Jacobsen has been serving a life sentence for kidnapping a woman from a Newton County convenience store and then beating and sexually assaulting her on a two-hour drive down I-20.
A DNA test now shows, however, that Jacobsen did not commit the crime, Vanessa Potkin, a lawyer for the Innocence Project, told a judge on Tuesday. GBI tests show that male DNA from the woman’s rape kit could not have come from Jacobsen, she said, and she is asking the court to grant Jacobsen a new trial.
District Attorney Layla Zon, however, opposed the motion, claiming
that the DNA brought forward by the Innocence Project could have come from a man with whom the victim had consensual sex not long before the assault. As a result, she said, the test results are inadmissible under the Rape Shield Act, which prohibits evidence of a rape victim’s sexual history.
So, is Zon right?
Let's start with the federal Rape Shield Rule, contained in Federal Rule of Evidence 412. In relevant part, it states the following:
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence....
In other words, evidence of other sexual behavior by a victim is inadmissible at trial to prove her propensity to consent to sexual acts and her likely conformity with that propensity at the time of the act in question. That's similar to the propensity character evidence proscription, which prevents the prosecution from presenting other criminal acts by a defendant to prove "once a criminal, always a criminal" (e.g., "once a burglar, always a burglar.").
On the other hand, evidence of other sexual behavior is potentially admissible at trial to prove that someone other than the defendant was the source of other physical evidence recovered from the victim, such as semen. And that's exactly the purpose for which the Georgia Innocence Project is offering the DNA evidence in the Jacobsen case. According to Jacobsen's attorney, "We’re not saying the sperm comes from a prior boyfriend....We’re saying the sperm comes from the rapist."
Therefore, this evidence would pretty plainly be admissible under Federal Rule of Evidence 412. Georgia's rape shield rule is contained in OCGA § 24-4-412, which does not explicitly mention an exception for "other source" evidence. That said, it is clear from Georgia precedent that such an exception applies. See, e.g., Williams v. State, 588 S.E.2d 790, 792 n.9 (Ga.App. 2003) (citing Lemacks v. State, 427 S.E.2d 536 (Ga.App. 1993) for the proposition that "evidence concerning prior molestations of victim admissible to show that someone other than the defendant had caused victim's physical injuries; Rape Shield Statute inapplicable."
But all of this is tangential because, as noted, this analysis is talking about admissibility at trial, which is where the rules of evidence apply. Conversely, those rules don't apply at the PCR stage, when defendants routinely present evidence that the defendant can be excluded as the source of DNA evidence recovered from the victim. See, e.g., People v. Starks, 850 N.E.2d 206, 213 (Ill.App. 2006). Therefore, the defense in the Jacobsen will almost certainly be allowed to present the DNA evidence.