08 41 MOTION TO ADMIT EVIDENCE OF OTHER ACTS WITH COMPLAINING WITNESS UNDER THE ARKANSAS RAPE SHIELD LAWS
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08-41 MOTION TO ADMIT EVIDENCE OF OTHER ACTS WITH COMPLAINING WITNESS UNDER THE ARKANSAS RAPE SHIELD LAWS
Defendant moves the court in limine pursuant to Ark. Code Ann. § 16-42-101, the Arkansas rape shield statute, and Ark. R. Evid. 411 to admit evidence of other occurrences of sexual conduct between Defendant and the complaint witnesses [and the 404(b) witnesses]:
1. This case involves allegations of [rape] [sexual abuse in the [degree number] degree] made by the alleged victim against the accused.
2. Under § 16-42-101(b) & Rule 411, "evidence of specific instances of the victim's prior sexual conduct with the defendant ... is not admissible by the defendant ... to prove consent or any other defense, or for any purpose."
3. Nevertheless, evidence of conduct with Defendant may be admissible if relevance is determined after a motion and in camera hearing. Ark. Code Ann. § 16-42-101(c) & Rule 411(c). If probative value outweighs prejudice, the evidence is admissible, and "the court shall make a written order stating what evidence, if any, may be introduced by Defendant and the nature of the questions to be permitted in accordance with the applicable rules of evidence." § 16-42-101(c)(2)(C) & Rule 411(c)(2)(C). Thus, this Court engages in a balancing of probative value and prejudice under Ark. R. Evid. 403.
4. When consent is the defense, evidence of prior sexual conduct or sexual relations with Defendant is admissible. See, e.g., Brown v. State, 264 Ark. 944, 581 S.W.2d 549 (1979); Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993); Evans v. State, 317 Ark. 532, 878 S.W.2d 750 (1994).
5. "Prior" in the statute means anything prior to trial. It is thus not limiting to instances prior to the occurrence at issue in the trial. Slater v. State, 310 Ark. 73, 832 S.W.2d 846 (1992). [Occurrences after the alleged rape will be offered by the defense.]
6. Defendant here raises the issue, but [he/she] reserves for the in camera hearing the exact nature of the evidence which will come from testimony of Defendant and the State's case file. This is in the spirit of the statute to protect the privacy of the alleged victim. The State is on notice of the prior sexual conduct by [discussions with] [a letter to] the Prosecuting Attorney.
7. Defendant's offer of proof of what questions [he/she] intends to ask are as follows: [here provide the offer of proof].
[SIGNATURE BLOCK]
1. The admissibility of prior sexual acts of the complaining witness must be determined under the precise standards of Ark. Code Ann. § 16-42-101 and Ark. R. Evid. 411. Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). A written motion is required. Terrell v. State, 26 Ark. App. 8, 759 S.W.2d 46 (1988). Failure to file a motion is waiver. Bradley v. State, 327 Ark. 6, 937 S.W.2d 628 (1997).
2. This motion must be filed, heard, and resolved before trial. If the defense goes into matters covered by the rape shield statute, the defense is subject to sanctions. Ark. Code Ann. § 16-42-101(d) and Ark. R. Evid. 411(d).
3. This motion is essentially only proper when consent is a defense because prior consensual acts with the defendant bears on consent; Boreck v. State, 272 Ark. 240, 613 S.W.2d 96 (1981); Bobo v. State, 267 Ark. 1, 589 S.W.2d 5 (1979); Herren v. State, 2018 Ark. App. 528, 563 S.W.3d 606 (2018); but it has been held that consensual acts after the fact are inadmissible. State v. Babbs, 334...
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