CAPSHAW V. COM.
CRIMINAL: RAPE SHIELD LAW
PANEL: MOORE PRESIDING; HOWARD, GUIDUGLI CONCUR
DATE RENDERED: 10/05/2007
CA affirmed TC’s exclusion under the Rape Shield Law (KRE 412) of evidence of rape victim’s prior accusations against two other men. Defendant’s convictions and 15 year sentence for 5 counts of second degree rape and 5 counts of second degree sodomy affirmed.
[T]he general rule which has emerged in cases involving sexual offenses, is that the admissibility of evidence of similar accusations made by the victim depends on whether they have been proven to be demonstrably false. To comport with the defense theory of a fabrication scheme, there must be proof of the falsity of the unrelated allegations. Hall v. Commonwealth, 956 S.W.2d 224, 227 (Ky. App. 1997). To determine whether unrelated accusations should be permitted into evidence, the Hall Court relied on a resolution fashioned by other jurisdictions, holding that [i]f the unrelated accusations are true, or reasonably true, then evidence of such is clearly inadmissible primarily because of its irrelevance to the instant proceeding. Additionally, unrelated allegations which have neither been proven nor admitted to be false are properly excluded. If demonstrably false, the evidence still must survive a balancing test, i.e., the probative value must outweigh the prejudicial effect. This approach eliminates the risk of circumventing evidentiary rules designed to protect the legitimate interests of the victim as well as the risk of obfuscating the real issues; it preserves the integrity of the trial process. Ky. R. Evid. (KRE) 403, 404, 412, and 608. While the Hall Court fashioned a test to apply in cases where prior accusations have been made, it failed to set forth what factors or facts would be sufficient to meet the “demonstrably false” test. A review of case law from our sister jurisdictions relied upon by the Hall Court reveals that “demonstrably false” is self explanatory: “[p]rior accusations are demonstrably false where the victim has admitted the falsity of the charges or they have been disproved.” Accordingly, we surmise from our review of case law from sister jurisdictions that false means that the prior allegations must be proved to be false before they are admissible. In the case at hand, three individuals testified during the in camera hearing, two of whom T.T. had made accusations against, and both, as would be expected, denied the allegations under oath. This is insufficient to meet the Hall test.
CA noted that the trial court in this matter did not make an actual finding that the prior allegations were false. CA went on to suggest that trial courts should make a factual finding regarding the truth or falsity of prior accusations and would require such in future cases. Having found no error by the trial court, CA did not believe, however, they needed to remand this case for a finding of truth or falsity of the accusations, particularly in light of the detailed in camera hearing held.
Note: The rule created by this decision makes it virtually impossible to meet the "demonstrably false" test unless the prosecuting witness recants the prior accusation. Here, defense counsel presented in camera testimony from the prior accused denying the allegations. It seems fundamentally unfair to be prohibited from introducing evidence of an alleged victim’s similar allegations against others. The trial court has the power to limit any inquiry on cross-examination. Unfortunately, the Rape Shield Law continues to expand with its foundation rooted in the presumption of guilt. Nonetheless, the ruling in this case was harmless given the DNA evidence and Capshaw’s ridiculous explanation for the existence of same.
Digested by Scott C. Byrd
Olgin and Byrd