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The collision of basketball player Kobe Bryant’s defense lawyers with Colorado’s rape-shield law at his preliminary hearing could foreshadow a battle at his trial. Whether the prosecution opened the door to the introduction of evidence of the alleged victim’s sexual history or Bryant’s lawyers simply stepped out of bounds remained a contentious subject after the hearing ended last week. Colorado courts have had numerous opportunities to interpret the state’s rape-shield law. They have been adamant about prohibiting irrelevant and inflammatory evidence. A Colorado Supreme Court decision in 2002 disallowed testimony about a consensual sexual act, saying that even if the act had caused the complainant’s vaginal injury, it had no bearing on whether she had been raped by the accused. This may not bode well for Bryant, 25, who is charged in Eagle County with sexual assault by “the application of physical force or physical violence.” He faces up to life in prison and a $750,000 fine. State v. Bryant, No. 2003 CR 204. Bryant claims that his accuser consented to have sex with him. Judge Frederick Gannett is expected to rule this week on whether there is probable cause to try Bryant. When questioning a sheriff’s detective at the preliminary hearing, Pamela Mackey, one of Bryant’s lawyers, insinuated that the 19-year-old complainant’s vaginal injuries had been caused not by Bryant but by the alleged victim’s having had multiple sexual partners in the days before the alleged rape. The prosecutor objected, and the judge abruptly adjourned the hearing. It continued last week. After counsel met in chambers, Mackey of Denver’s Haddon, Morgan, Mueller, Jordan, Mackey & Foreman then continued her line of questioning. The detective testified that Bryant’s accuser had told him that she had had sex with a man three days before the rape. Testimony was also elicited that the panties she wore to the hospital for an examination the day after the June 30 incident had semen and sperm on them that had not come from Bryant. A Colorado Supreme Court case seems to address Mackey’s tactics. At the trial, the defense made an offer of proof that the defendant’s vaginal injuries were caused by consensual sex four days before the alleged rape. The trial court heard in-camera testimony from the complainant that it had been with a friend and had been “gentle.” A nurse testified that she had found fresh scratches on the jaw and arm of the alleged rape victim and a vaginal abrasion commonly observed during sexual assault examinations. The trial court refused to allow testimony about her prior sexual partners (though it did allow defense counsel to cross-examine the nurse about other possible causes of the abrasion, including consensual sex). The state Court of Appeals reversed the conviction, saying testimony about recent former partners should have been allowed. The Supreme Court reinstated the conviction, holding that the evidence of the prior sexual encounter “proved nothing.” People v. Harris, 43 P.3d 221 (2002). The court said that “such prior sexual relations evidence would have shown only that Harris may not have caused the abrasion. It would not, and logically could not, have shown whether [the accuser] consented to her sexual encounter with Harris.” In a rape case, a victim’s privacy interests are weighed against a defendant’s liberty interests. The Colorado Supreme Court has noted that the state’s rape-shield laws were enacted to provide “victims greater protection from humiliating public ‘fishing expeditions’ into their past sexual conduct.” People v. McKenna, 585 P.2d 275 (1978). The Colorado statute, C.R.S. 18-3-407, presumes the irrelevancy of evidence of “specific instances of the victim’s or a witness’ prior or subsequent sexual conduct” as well as testimony that expresses an opinion about the victim’s or witness’s sexual conduct or reputation. To attempt to introduce such evidence at a trial, an attorney must file a written motion accompanied by an offer of proof at least 30 days before the trial. If the court finds the offer of proof sufficient, an in-camera hearing is held to enable both sides to question the witnesses being offered. If the judge finds the evidence is relevant to a material issue in the case, the court prescribes the nature of the evidence allowed and the questions that are permitted. Statutory exceptions to the rule allow evidence that the acts charged were or were not committed by the defendant, for example if the defendant is not the source of the semen, pregnancy or disease, “or any other similar evidence.” The statute is silent as to whether it applies to preliminary hearings. Two Colorado lawyers, a prosecutor and a criminal defense attorney, disagreed on that issue. Larry Pozner of Denver’s Hoffman ReillyPozner & Williamson, a past president of the National Association of Criminal Defense Lawyers, said that Mackey “was vindicated by the court when the judge said he didn’t know whether the rape-shield law applied to preliminary hearings, but that he’d heard the defense’s offer of proof in chambers and he was going to allow Mackey some latitude to proceed.” A DA’s view Robert Grant, the district attorney in suburban Adams County, called the judge’s ruling erroneous. He accused the judge of pandering to the defense’s desire to try the case in the media. “The rape-shield law applies in spirit at preliminary hearings,” just as other evidentiary rules do, Grant said. “The judge could have heard the evidence in- camera and still taken it into account.” Prosecutors and defense lawyers connected to the case are under a gag order prohibiting them from commenting publicly about the case. Pozner said that the prosecution’s theory is that the accuser’s injuries were caused by a single act of rape. The defense, he said, is likely to argue that repeated acts of consensual sex could have caused them, which, he said, distinguishes the facts of the Bryant case from Harris. That, he said, would open the door to testimony about the young woman’s immediate sexual history. Pozner said he didn’t know what to make of the panties testimony. Grant said it was clearly irrelevant and had been offered to poison the potential jury pool. Post’s e-mail address is [email protected].

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