I am in trial now in the middle of my case after the judge refused to allow cross on promiscuity of an 11 year old (yeah like that is coming in) the defendant changed his plea to guilty and is going to the jury for punishment. He wants to offer several witness's that will testify that the victem routinely told people including the 18 year old defendant that she was 16 as mitigating evidence. Does that come in?

I don't see how it is relevant to punishment if the victim told persons other than the defendant that she was 16. That's mitigation by victim character assasination.

Now, if there is evidence the victim told the defendant she was 16, then I suppose that could serve as mitigating evidence, assuming there was no use of force. It could convince a jury that a defendant is not a heartless pedophile.

There is a pretty big difference between 11 and 16, though.

That's my evaluation. He may do more harm to himself than good. Anyone who believes he did not know an 11 year old from a 16 year old would buy beach front property in Arizona.

Does her desire to be older make her a more willing participant? Even if she were 16 she would still be incapable of legal consent so how does that mitigate his culpability unless he says that he believed her and thought he was within the 3 year rule? Unless he tries that, her misrepresentations to him or anyone else remain irrelevant. At most they merely show her willingness or desire to participate, something that presumably has already been shown by other evidence. Make both a 402 and 403 objection. But I do not see how you are really harmed much if it does come in. Its kind of like, "so what", she's still 11 and he cannot reasonably argue she deserved his "affection".

Remind your judge that ruling on the admissibility of evidence is an abuse of discretion standard on appeal. Evidentiary ruling are rarely overturned, especially at punishment. The simple fact that it is an arguable point will probably make the decision within the zone of reasonable disagreement. Also, it is always difficult to show harm at punishment such that the error in not allowing the testimony would be reversible error. Whatever the jury gives the pervert, will be justified by the fact that the girl was 11 yoa regardless of the other evidence. So, if your judge is leaning towards going with you, then knowing that it will stand on appeal should seal the deal.

We kept it all out. 30 year sentence. Thanks for your help.