I'm in trial and have a weird issue that just came up.
Anyone know when the promiscuity defense was added to the law? I know it was deleted in 1993 and it looks like it was added in either 1973 or 1983 but I can't quite tell and don't have time to hit the legislative history before I have to get back into court.

I've got an extraneous offense we're planning to introduce at punishment that happened in 1981 and the defense is claiming that the promiscuity defense would have entitled him to get into the complainant's sexual history back then....
Anyway, thanks in advance!

Lisa, this was in old Section 21.10, sexual abuse of a child, effective Jan. 1, 1974. It carried over in 1983 when they moved rape type offenses to Chap. 22.

Thanks for the quick reply John.

since you don't need to prove a criminal offense, why should it matter whether he had a "defense" ?

Isn't having sex with a child a "bad act"?

However, the defendant is going to want to use the promiscuity defense as a basis to testify about supposed sexual acts of the girl with others that she supposedly told him about.
Don't think it's going to fly. More importantly, since it doesn't get before the jury until after they've convicted him of molesting a 12 year old, it probably won't matter anyway....

How is what she supposedly said to him not hearsay? Even if she's the witness, it's still her out of court statement intended to prove the truth of her liaisons.

In any event, good luck with your case. Please keep us posted!

Off this topic, but please do not get started on the theory that what I say out of court is hearsay if I am on the witness stand. I know that is how the rule reads, and there is apparently at least one law professor that believes it should be taken literally, and there is an attorney in Austin who says that since the officers did not actually draw the line, the county borders are hearsay (so is your date of birth since you probably do not remember actually being born), but imagine trying a criminal trespass case where I told the defendant to leave and he did not. Under the literal interpretation, my statement to him is inadmissible. That cannot be right, so Lisa's witness could testify about what she told someone.

The point of the hearsay rule (oh, no, I am about to agree with Scalia - sort of) is to block some statements where the credibility cannot be challenged. But if the witness is on the stand - ask away about what they said, even if you only get one side of a conversation.

Sorry...our judge will sustain hearsay in that situation. We take a literal view (when it suits us). I would say that this is one of those situations that "suits us." Not saying you would always object to hearsay just because the witness is being asked about something they said. And I'm not saying all judges would sustain it. But it's worth a shot if you're trying to protect a victim.

Gretchen,
I agree completely. That should keep his rendition out. I'm also trying to keep him from being able to get in the questions he asked the complainant at deposition about her sexual history.

quote:

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Originally posted by Whitney:
...imagine trying a criminal trespass case where I told the defendant to leave and he did not. Under the literal interpretation, my statement to him is inadmissible. That cannot be right, so Lisa's witness could testify about what she told someone.

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The difference is that your testimony as to what you told the trespasser is not "offered for the truth of the matter asserted," it is offered to show that the defendant had notice to depart, i.e. "I want you to leave." We don't care whether you really wanted him to leave or not, we only care that the defendant was given notice to go.

Lisa's witness, on the other hand, is attempting to offer out out-of-court admissions to promiscuity to prove that the complainant is, in fact, promiscuous. Patent hearsay. The proper way for him to offer this testimony is not to ask the defendant what was said, but to call the complainant and ask her directly about the events. Which is, I gather, Lisa's real question: Should the defense be allowed to examine the complainant regarding extraneous sexual behavior?

I agree with David--we can offer the evidence without having to characterize it as a crime, per se. Assuming the complainant is promiscuous, that does not change the fact that the defendant had sex with her. What if we agree that the State will not argue that the "prior bad act" constituted a criminal offense? What reason then would the defense offer for bringing up the promiscuity evidence?

Lisa, you mentioned that he wants to ask the complainant about what she said in her deposition. Was there a civil case or did you do a deposition under 39.02? Is anyone out there using those depositions? How are they working out? We haven't tried them here, though I've been tempted to with some feeble elderly witnesses that I didn't think would do well getting to court or wouldn't make it to the trial date.

Yes, this is the 2nd time I've used the new law to do a State's deposition. This time, we had a last minute continuance at a previous setting and our witness had already flown in from out of state. So we hurried up and filed a motion for deposition and deposed her the very next morning so she wouldn't have to make a 2nd trip.
The other time I've done it was w/ a 80 year old witness w/ some health issues on a case with a trial setting a year out.
We'll play the depo of the out of state witness later today. I'll post how it turns out. Hopefully the jury will find it as compelling as live testimony.