Did application of Montana’s rape shield law, excluding evidence of the victim’s motive to fabricate and source of sexual knowledge, violate the Defendant’s constitutional right to present a complete defense

Williams, Caitlin S.

English

University of Montana

Montana Law Review Online Volume 76 Article 27 11-25-2015 Precap: State of Montana v. James Morris Colburn; When the Sole Defense is Precluded by Montana’s Rape Shield Law Caitlin S. Williams Alexander Blewett III School of Law Follow this and additional works at: https://scholarworks.umt.edu/mlr_online Let us know how access to this document benefits you. Recommended Citation Caitlin S. Williams, Oral Argument Preview, Precap: State of Montana v. James Morris Colburn; When the Sole Defense is Precluded by Montana’s Rape Shield Law, 76 Mont. L. Rev. Online 214, https://scholarship.law.umt.edu/mlr_online/vol76/iss1/27. This Oral Argument Preview is brought to you for free and open access by ScholarWorks at University of Montana. It has been accepted for inclusion in Montana Law Review Online by an authorized editor of ScholarWorks at University of Montana. For more information, please contact scholarworks@mso.umt.edu. 214 MONTANA LAW REVIEW ONLINE Vol. 76   PRECAP; State of Montana v. James Morris Colburn: When the Sole Defense is Precluded by Montana’s Rape Shield Law Caitlin S. Williams  No. DA 14-0181 Montana Supreme Court  Oral Argument: Wednesday, December 2, 2015 at 9:30 AM in the Courtroom of the Montana Supreme Court, Joseph P. Mazurek Justice Building, Helena, Montana.  I.  QUESTION PRESENTED  Did application of Montana’s rape shield law, excluding evidence of the victim’s motive to fabricate and source of sexual knowledge, violate the Defendant’s constitutional right to present a complete defense?  II. FACTUAL AND PROCEDURAL BACKGROUND  Appellant James Morris Colburn was charged with two counts of incest of his daughter, “C.C.”, age eleven, and sexual intercourse without consent and two counts of sexual assault of his neighbor “R.W.”, age eleven.1 Colburn was found guilty on all counts and sentenced to Montana State Prison for 100 years.2 Although Colburn initially appealed each of these charges, the issue on appeal was ultimately narrowed to the charges regarding the sexual abuse of R.W.3 During a forensic interview, R.W. described two separate incidents in which Colburn molested her in various ways.4 R.W. was interviewed about these incidents by Nurse Mary Pat Hanson at the First STEP Resource Center at St. Patrick’s Hospital.5 Based on the interview, Hanson concluded that R.W. possessed sexual knowledge consistent with that of a child who experienced sexual abuse.6 The video of Hanson’s interview with R.W. was played for the jury at trial.7 Prior to trial, Colburn filed a motion in limine seeking to introduce evidence of an alternative source for R.W.’s sexual knowledge,                                            1 Appellee’s Response Br. at 1, State of Montana v. James Morris Colburn, (Mont. June 15, 2015)(DA 14-0181). 2 Id. at 5. 3 Appellee’s Supplemental Reply Br. at 1, State of Montana v. James Morris Colburn, (Mont. Oct. 9, 2015)(DA 14-0181). 4 Appellee’s Response Br. at 3. 5 Id. 6 Id. at 4. 7 Id. 2015            RECAP; MONTANA V. COLBURN               215    specifically alleged sexual abuse by her biological father.8 However, the introduction of evidence of prior sexual abuse is inadmissible under Montana’s “rape shield” statute.9 The district court reserved ruling on the motion until trial, where it was ultimately deemed inadmissible.10 Colburn appeals this determination.11  III. ARGUMENT  A. Whether the application of the rape shield violated Appellant’s constitutional right to a defense?  Montana’s rape shield statute states:   Evidence concerning the sexual conduct of the victim is inadmissible in prosecutions . . . except evidence of the victim’s past sexual conduct with the offender or evidence of specific instances of the victim’s sexual activity to show the origin of semen, pregnancy, or disease that is at issue in the prosecution.12  Colburn argues the application of the rape shield deprived him of his constitutional right to present a defense13 “as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article II, Section 24 of the Montana Constitution.”14 He proposes that the Court employ a case-specific balancing test to weigh “the interests expressed in the statute against the force of the defendant’s constitutionally-protected right to a defense . . . to determine whether the particular exclusion of evidence under the rule was unconstitutional.”15 More specifically, Colburn argues that the exclusion of evidence of a possible alternative source of R.W.’s sexual knowledge and the exclusion of evidence of R.W.’s alleged motive to fabricate her allegations against him prevented him from presenting a complete defense.16  The State argues the district court did not err in applying the rape shield to this case, as “Montana’s Rape Shield Law was designed to                                            8 Br. of Appellant at 2, State of Montana v. James Morris Colburn, (Mont. Dec. 9, 2014)(DA 14-0181). 9 Id. 10 Id. at 10–11. 11 Appellant’s Supplemental Reply Br. at 2, State of Montana v. James Morris Colburn, (Mont. Oct. 23, 2015)(DA 14-0181). 12 MONT. CODE ANN. § 45–5–511(2). 13 Appellant’s Supplemental Reply Br. at 7. 14 Br. of Appellant at 11. 15 Appellant’s Supplemental Reply Br. at 2. 16 Id. 216 MONTANA LAW REVIEW ONLINE Vol. 76   protect the privacy and dignity of the victims of sexual crimes.”17 Further, the State argues the two exceptions present in the statute, (1) allowing evidence of past sexual conduct between the victim and the offender, and (2) allowing evidence of the origin of semen, pregnancy, or disease, are not applicable in this case.18 As to the first exception, Colburn’s defense does not stem from prior sexual activity between himself and R.W., but rather is directed at R.W.’s prior sexual activity with another offender.19 Regarding the second exception, pregnancy and disease are not at issue and Colburn did not present any proof of R.W.’s sexual activity, which is the requirement for showing the origin of semen.20 Based on these conclusions, the State argues the application of the rape shield is appropriate, and notes that, where the exceptions are not met, the Montana Supreme Court “has repeatedly rejected arguments that application of the rape shield law violates a defendant’s constitutional rights to confrontation or to present a defense.”21  Specifically, Colburn raises two separate theories he was unable to present at trial due to the application of the rape shield law.  1. Motive to Fabricate  Colburn argues the preclusion of evidence pointing towards the victim’s motive to fabricate evidence of sexual assault violated his right to present a complete defense.22 He asserts that R.W. used her allegedly false allegations against him to “test the waters” with her mother and gauge her reaction to those allegations before revealing the allegedly true incident of sexual abuse imposed by her biological father.23 Colburn argues that after her mother believed her allegations toward Colburn, R.W. felt “safe” enough to disclose the “higher-stakes” abuse by her father.24 However, since Colburn was not allowed to introduce the alleged sexual assault of R.W. by her father, he argues the jury was unable to consider R.W.’s motive to fabricate the allegations against him.25 Colburn states “the Constitution protects a defendant’s right to introduce and argue a motive to fabricate . . . without a court having to find the jury necessarily would have believed the theory.”26                                             17 Appellee’s Response Br. at 19. 18 Id. at 20. 19 Id. at 20–21. 20 Id. at 21. 21 Appellee’s Supplemental Br. at 4. 22 Appellant’s Supplemental Reply Br. at 7. 23 Id. at 14–15. 24 Id.  25 Id.  at 16–17. 26 Id.  2015            RECAP; MONTANA V. COLBURN               217    Conversely, the State argues that Colburn’s theory of R.W.’s motive to fabricate was unsubstantiated absent expert testimony.27 Similarly, the State contends Colburn’s attempt to use Nurse Hanson’s testimony that “children can sometimes lie” to prove that R.W. had motive to fabricate her allegations was also unfounded, as the “testimony by Hanson left Colburn’s fabrication theory merely a theory, an unsubstantiated guess, an argument at best that rests only upon a platitude, no expert was required to assert, that children can sometimes lie.”28  2. Source of Knowledge  Additionally, Colburn argues the exclusion of evidence pointing to an alternative source of R.W.’s sexual knowledge violated his right to present a complete defense,29 as “the State at trial chose to use R.W.’s sexual knowledge to bolster her credibility and prove its case, then used the rape shield to exclude relevant rebuttal evidence.”30 Further, Colburn asserts that since jurors would “naturally infer” that R.W. must have been sexually abused to have such “graphic sexual knowledge,” he should “be permitted to rebut the inference” that the victim was sexually abused and could not have fabricated the allegations.31 As Colburn initially sought to introduce R.W.’s statements to Nurse Hanson regarding sexual abuse by her father,32 Colburn now argues this evidence was necessary to presenting a complete defense, as “[t]he evidence of abuse by R.W.’s father was relevant to rebut the powerful inference of Colburn’s guilt from R.W.’s sexual abuse knowledge and Nurse Hanson’s assessment of R.W.’s credibility based on R.W.’s sexual abuse knowledge.”33 In response, the State cites a prior case, State of Montana v. Van Pelt,34 arguing the Court had previously rejected the very argument Colburn now asserts:   Appellant cannot argue . . . that he does not seek to attack [the victim’s] credibility but rather seeks to demonstrate that [the victim] could have gained her knowledge of sex outside of her contact with the defendant . . . Whether under the guise of showing the jury how [the victim] may have obtained her knowledge                                            27 Appellee’s Supplemental Br. at 9–10. 28 Id. at 10. 29 Appellant’s Supplemental Reply Br. at 7. 30 Id. at 7–8. 31 Id. at 8–9. 32 Id. at 11–12. 33 Id. at 13. 34 805 P.2d 549 (Mont. 1991).  218 MONTANA LAW REVIEW ONLINE Vol. 76   of sex, or not, the fact is appellant wished to convince the jury that [the victim] fabricated charges against him.35  The State further argues evidence of R.W.’s alleged abuse by her father lacked relevance and is therefore inadmissible pursuant to Rule 401 of the Montana Rules of Evidence.36 Similarly, the evidence is insufficient under Rule 403 because “the details related to the proposed evidence were so sketchy that the district court could easily have concluded that the prejudicial effect of the evidence outweighed the purported probative value.”37 Notably, the State did concede that “some of Colburn’s criticisms are justified, as the State did overlook the fact that Colburn asserted matters shown in other court records of the father’s alleged sexual abuse of R.W.”38 However, the State then takes the opportunity to further its own argument by identifying “that Colburn never tied the father’s sexual abuse of R.W. to drawing and depictions R.W. reported was Colburn’s rape of her.”39 Additionally, “Colburn had the ability to develop . . . more specific information regarding the father’s prior sexual assault . . . ” but failed to.40  IV. ANALYSIS  A. Applicability of the Rape Shield  The Court is likely to first address the overarching issue of whether or not the rape shield is applicable in this case. Although the State acknowledged that this Court has regularly upheld application of the rape shield as constitutional,41 the fact that the law precludes Colburn’s sole defense suggests the Court may question the State on this matter. Setting aside the horrific nature of the allegations against him, one cannot quickly dismiss the fact that Colburn was essentially prevented from presenting a defense. Given Colburn’s constitutional right to present a complete defense, the State must show a clear and compelling reason behind its argument if it is to prevail.  The two defense theories Colburn was prevented from asserting will be included within the discussion of whether it was appropriate to apply the rape shield in this case: (1) R.W.’s alleged motive to fabricate                                            35 Appellee’s Supplemental Br. at 11–12 (citing Van Pelt, 805 P.2d at 552). 36 Id. at 16–17; see also Mont. R. Evid. 401. 37 Id. at 17; see also Mont. R. Evid. 403. 38 Appellee’s Supplemental Br. at 16. 39 Id.  40 Id.  41 Id. at 4. 2015            RECAP; MONTANA V. COLBURN               219    the allegations against him, and (2) R.W.’s alleged alternative source of sexual knowledge.  1. Motive to Fabricate  The issue of whether the jury should have been able to hear Colburn’s theory that R.W. had reason to fabricate the allegations against him will likely be the main subject of debate between the parties. The State admitted that it failed to sufficiently address that Colburn raised some degree of evidence that R.W. had been sexually abused by her father.42 This admission gives Colburn some momentum in his argument that R.W. had reason to fabricate her allegations against him as a means of “testing the waters” with her mother before disclosing the “higher stakes” allegations against her father. However, the State still has a strong case that the evidence of R.W.’s alleged sexual abuse by her father is inadmissible under the rape shield for public policy reasons. There is a significant interest in protecting victims from scrutiny surrounding their character, and the State argues for heightened protections for victims who are minors.43 The Court will likely address the legitimate public policy concerns that would arise if victims were subject to greater attack on cross-examination, particularly considering the sensitive nature of the allegations and the inherent hesitancy to come forward with allegations in the first place.  2. Source of Knowledge  The Court will likely dismiss this argument fairly quickly. The fact that Colburn relies primarily on out-of-state cases44 while the State presents Montana case law discussing the exact issue in question45 suggests that the Court will quickly affirm its own previous ruling. Public policy concerns are again at issue here, in that if the Court were to rule that a potential alternative source of R.W.’s sexual knowledge was admissible, it would open the door to a myriad of defendants asserting that their accuser obtained his or her sexual knowledge from an alternative source. Given the fact that Montana’s rape shield statute is designed to protect victims from having their sexual histories examined by juries in excruciating detail, the Court is very likely to dismiss Colburn’s argument.                                               42 Id.  43 Appellee’s Response Br. at 19. 44 Appellee’s Supplemental Br. at 20. 45 Id. at 11–12. 220 MONTANA LAW REVIEW ONLINE Vol. 76   V. PREDICTION  The Montana Supreme Court will likely agree that the application of the rape shield did not violate Colburn’s constitutional right to a defense, and even if it did, the State’s legitimate interest in protecting victims of sexual assault outweighs Colburn’s interests.   

Precap: \u3cem\u3eState of Montana v. James Morris Colburn\u3c/em\u3e; When the Sole Defense is Precluded by Montana’s Rape Shield Law

University of Montana School of Law

Montana Law Review Online
Volume 76 Article 28
12-9-2015
Recap: State of Montana v. James Morris Colburn;
When the Sole Defense is Precluded by Montana’s
Rape Shield Law
Caitlin S. Williams
Alexander Blewett III School of Law
Follow this and additional works at: https://scholarship.law.umt.edu/mlr_online
This Oral Argument Review is brought to you for free and open access by The Scholarly Forum @ Montana Law. It has been accepted for inclusion in
Montana Law Review Online by an authorized editor of The Scholarly Forum @ Montana Law.
Recommended Citation
Caitlin S. Williams, Oral Argument Review, Recap: State of Montana v. James Morris Colburn; When the Sole Defense is Precluded by
Montana’s Rape Shield Law, 76 Mont. L. Rev. Online 221, https://scholarship.law.umt.edu/mlr_online/vol76/iss1/28.
2015            RECAP; MONTANA V. COLBURN               221 
  
 
RECAP; State of Montana v. James Morris Colburn: When the Sole 
Defense is Precluded by Montana’s Rape Shield Law 
 
Caitlin S. Williams  
No. DA 14-0181 Montana Supreme Court 
 
Oral Argument: Wednesday, December 2, 2015 at 9:30 AM in the 
Courtroom of the Montana Supreme Court, Joseph P. Mazurek Justice 
Building, Helena, Montana. 
 
I. SUMMARY 
 
At oral argument, the main subject of debate was whether the 
defendant appellant, James Morris Colburn, was prevented from 
exercising his constitutional right to a defense by the trial court’s 
application of Montana’s rape shield statute. The defendant argued for 
the implementation of a procedure to balance the constitutional rights of 
the accused against the public policy implications underlying the rape 
shield statute when considering what evidence the accused can offer. 
Specifically, the defendant asserted that he was unable to raise a 
complete defense by not being able to introduce (1) evidence of a 
possible alternative source for the victim’s sexual knowledge, and (2) 
evidence of a possible motive for the victim to fabricate her allegations. 
The exclusion of that evidence and the underlying constitutional 
implications are the basis of this appeal. 
 II. MS. JENNIFER HURLEY FOR THE DEFENDANT 
 
Ms. Hurley commenced her argument by asserting the district 
court should have considered implementing a balancing test of the 
parties’ interests. Facing questions regarding whether she agreed that the 
rape shield is designed to protect victims, and that allowing evidence of 
sexualization to be introduced could re-traumatize the young victims the 
statute is designed to protect. Ms. Hurley agreed with that concern, but 
argued that by conducting a balancing test, the trial court can determine 
at its discretion the extent the details are necessary to avoid 
retraumatization.  
The Court then challenged Ms. Hurley on the matter of timing: 
whether or not the evidence of sexualization has to be first presented by 
the State before the defendant can present it. After acknowledging that 
this specific issue has not been litigated in Montana, Ms. Hurley 
identified that while the State relied heavily on R.W.’s sexual knowledge 
and the subsequent inference she could only have that knowledge if she 
was abused by the defendant, the defendant was not allowed to rebut that 
222 MONTANA LAW REVIEW ONLINE Vol. 76 
  
inference by introducing evidence of a possible alternative source of that 
knowledge. The argument then shifted to whether the State “opened the 
door” with that argument, and whether it was fair to argue that in doing 
so waived the application of the rape shield. 
In examining the proposed balancing test, the Court questioned 
Hurley on the distinction between the victim’s credibility versus her 
reputation and character. Specifically, evidence of credibility is 
potentially admissible, while evidence of the victim’s reputation and 
character is barred under the rape shield. Ms. Hurley responded that 
while the State argues that the defendant did not offer sufficient evidence 
that the alleged abuse R.W. sustained by her father was relevant, the 
defense was actually not able to make an offer of proof in that respect. 
The defense sought to offer a forensic interview report where R.W. 
disclosed the abuse by her father and drew several depictions of the 
abuse. Ms. Hurley argued that the district court should have assessed to 
what extent the details of the father’s abuse were necessary, and at the 
very least that the defendant should have been able to rebut the inference 
that R.W. could only have the sexual knowledge she did if she had been 
abused by the defendant. 
Ms. Hurley concluded her opening argument by proposing the 
procedure utilized in State ex rel. Mazurek v. District Court,1 where a 
balancing test was implemented when the defendant sought to introduce 
the victim’s alleged prior false accusations of sexual abuse.2 Ms. Hurley 
advocated for a similar balancing test to be applied on remand in the 
instant case, where the defendant could give notice of his intent to 
introduce evidence of prior sexual abuse and explain its relevance to a 
material issue in this case. She further stated that there should then be a 
hearing outside of the presence of a jury where the Court could conduct 
the balancing test and “determine the extent and form of the evidence.” 
 
III. MR. MARK FOWLER FOR THE STATE OF MONTANA 
 
The State commenced its argument with the assertion that the 
defendant failed to offer sufficient proof as to the relevancy of the abuse 
R.W. sustained by her father. Furthermore, the State attacked the 
admissibility of the forensic interview the defense sought to introduce, 
claiming that it is double hearsay and the defendant had multiple 
opportunities to have a hearing on that evidence but declined to do so. 
The Court quickly pointed out that there is a statement in that forensic 
report (referencing R.W.’s disclosure about the abuse by her father) that 
is “devastating” to the State as it concerns exactly what the defense is 
arguing––an alternative source of sexual knowledge. Mr. Fowler 
                                           
1 State ex. rel. Mazurek v. District Court, 922 P.2d 474 (Mont. 1996). 
2 Id. at 480. 
2015            RECAP; MONTANA V. COLBURN               223 
  
 
countered that the Court is not permitted under the Constitution to admit 
irrelevant evidence, regardless of whether or not the State opened the 
door. Focusing on that specific point, the Court asked if Mr. Fowler 
really considered evidence of an alternative source of sexual knowledge 
as irrelevant in a child rape case. Mr. Fowler argued that it was not 
relevant because the defense never demonstrated the nexus between the 
incidents of sexual abuse R.W. sustained from her father and from the 
defendant, to which the Court pointed out the defendant was precluded 
from raising that defense. 
Mr. Fowler next argued the forensic interview report was not 
even introduced to the trial judge until after the jury verdict was 
delivered, despite ample opportunities to introduce it earlier. He posited 
that the defense likely waited to introduce the report for strategic 
reasons: the defense recognized that the incidents of sexual abuse are two 
totally separate acts and likely feared the relevancy challenge. The Court 
was again skeptical of that theory, and pushed Mr. Fowler on his stance 
that the jury should not have been able to hear about a possible 
alternative source of R.W.’s sexual knowledge. Mr. Fowler conceded 
that the evidence was only marginally relevant, because R.W. was able to 
distinguish between the two incidents of sexual assault.  
The Court then considered the reasoning behind excluding the 
details the attacks have in common and allowing the jury to subsequently 
conclude that R.W. possessed sexual knowledge only from the attack by 
the defendant. Mr. Fowler responded by stressing the important public 
policy implications underlying the rape shield, including the risk of 
confusing or misleading the jury and violating the victim’s privacy. The 
Court then pointed out that there were many details specific to the 
alleged attack by the defendant that were not shared by the alleged attack 
by the father, and the State could have introduced that evidence without 
“opening the door” to the source of R.W.’s sexual knowledge. 
The Court further questioned the State’s position on Ms. 
Hurley’s proposed use of the balancing test under Mazurek.  Mr. Fowler 
argued that the instant case is distinguishable from Mazurek in that there 
was no proffered evidence that R.W. fabricated her allegations, while 
there was evidence of fabrication in Mazurek. The Court then countered 
that the fabrication was not the point, but rather the admissibility of such 
evidence, to which the State argued that it was incumbent on defense 
counsel to proffer that evidence. 
The State concluded its argument by pointing out that the 
prosecutor instructed the jury to make its determination of the 
defendant’s guilt based on R.W.’s in-court testimony, and therefore any 
error the trial court may have made in excluding evidence was harmless. 
 
IV. HURLEY REBUTTAL BY MS. HURLEY 
 
224 MONTANA LAW REVIEW ONLINE Vol. 76 
  
Before Ms. Hurley began to rebut the State’s arguments, she was 
asked by the Court for a statement of the rule regarding the exception to 
the rape shield that she proposes under the Constitution. Ms. Hurley 
responded by stating that while there is no plain rule statement that can 
be applied, even if the State doesn’t make the inference explicit (namely, 
the inference that R.W. could only possess this sexual knowledge if she 
had been abused by the defendant), it would still naturally be inferred by 
a jury, which is sufficient on its own to violate the defendant’s 
constitutional rights. Therefore, the Court should implement a balancing 
test to allow the defendant to rebut that inference. 
Regarding the State’s argument that the defense did not make a 
sufficient offer of proof regarding the relevance of the abuse R.W. 
sustained by her father, Ms. Hurley strongly denied that assertion and 
stated the District Court had a copy of the forensic interview where that 
information was disclosed, it was a proposed exhibit, and it was cited to 
in the defendant’s motion in limine. The final question from the Court 
was whether the defense objected to the testimony of Nurse Hanson on 
direct examination, to which Ms. Hurley said that the testimony was not 
objectionable under the rules of evidence, and yet the defendant did not 
have an opportunity to rebut that testimony either.  
 
V. PREDICTIONS 
 
The fact that the Justices asked much more critical questions of 
the State than of the defendant suggests that this will not be an open-and-
shut case. The defendant faced an uphill battle going into oral argument 
considering the unpleasant nature of the accusations against him and the 
potential consequences of loosening the standards surrounding the rape 
shield. However, the Court appeared far more skeptical of the State’s 
apparent willingness to completely dismiss the defendant’s constitutional 
right to raise a defense. There is a very real possibility that the appellant 
could be successful in having this case remanded with instruction that 
allows him to introduce certain evidence, but regardless of which way 
the Court rules, this case will have far-reaching implications on the 
future litigation of child rape cases. 
 


Recap: \u3cem\u3eState of Montana v. James Morris Colburn\u3c/em\u3e; When the Sole Defense is Precluded by Montana’s Rape Shield Law

Montana Law Review Online Volume 76 Article 28 12-9-2015 Recap: State of Montana v. James Morris Colburn; When the Sole Defense is Precluded by Montana’s Rape Shield Law Caitlin S. Williams Alexander Blewett III School of Law Follow this and additional works at: https://scholarworks.umt.edu/mlr_online Let us know how access to this document benefits you. Recommended Citation Caitlin S. Williams, Oral Argument Review, Recap: State of Montana v. James Morris Colburn; When the Sole Defense is Precluded by Montana’s Rape Shield Law, 76 Mont. L. Rev. Online 221, https://scholarship.law.umt.edu/mlr_online/vol76/iss1/28. This Oral Argument Review is brought to you for free and open access by ScholarWorks at University of Montana. It has been accepted for inclusion in Montana Law Review Online by an authorized editor of ScholarWorks at University of Montana. For more information, please contact scholarworks@mso.umt.edu. 2015            RECAP; MONTANA V. COLBURN               221    RECAP; State of Montana v. James Morris Colburn: When the Sole Defense is Precluded by Montana’s Rape Shield Law  Caitlin S. Williams  No. DA 14-0181 Montana Supreme Court  Oral Argument: Wednesday, December 2, 2015 at 9:30 AM in the Courtroom of the Montana Supreme Court, Joseph P. Mazurek Justice Building, Helena, Montana.  I. SUMMARY  At oral argument, the main subject of debate was whether the defendant appellant, James Morris Colburn, was prevented from exercising his constitutional right to a defense by the trial court’s application of Montana’s rape shield statute. The defendant argued for the implementation of a procedure to balance the constitutional rights of the accused against the public policy implications underlying the rape shield statute when considering what evidence the accused can offer. Specifically, the defendant asserted that he was unable to raise a complete defense by not being able to introduce (1) evidence of a possible alternative source for the victim’s sexual knowledge, and (2) evidence of a possible motive for the victim to fabricate her allegations. The exclusion of that evidence and the underlying constitutional implications are the basis of this appeal.  II. MS. JENNIFER HURLEY FOR THE DEFENDANT  Ms. Hurley commenced her argument by asserting the district court should have considered implementing a balancing test of the parties’ interests. Facing questions regarding whether she agreed that the rape shield is designed to protect victims, and that allowing evidence of sexualization to be introduced could re-traumatize the young victims the statute is designed to protect. Ms. Hurley agreed with that concern, but argued that by conducting a balancing test, the trial court can determine at its discretion the extent the details are necessary to avoid retraumatization.  The Court then challenged Ms. Hurley on the matter of timing: whether or not the evidence of sexualization has to be first presented by the State before the defendant can present it. After acknowledging that this specific issue has not been litigated in Montana, Ms. Hurley identified that while the State relied heavily on R.W.’s sexual knowledge and the subsequent inference she could only have that knowledge if she was abused by the defendant, the defendant was not allowed to rebut that 222 MONTANA LAW REVIEW ONLINE Vol. 76   inference by introducing evidence of a possible alternative source of that knowledge. The argument then shifted to whether the State “opened the door” with that argument, and whether it was fair to argue that in doing so waived the application of the rape shield. In examining the proposed balancing test, the Court questioned Hurley on the distinction between the victim’s credibility versus her reputation and character. Specifically, evidence of credibility is potentially admissible, while evidence of the victim’s reputation and character is barred under the rape shield. Ms. Hurley responded that while the State argues that the defendant did not offer sufficient evidence that the alleged abuse R.W. sustained by her father was relevant, the defense was actually not able to make an offer of proof in that respect. The defense sought to offer a forensic interview report where R.W. disclosed the abuse by her father and drew several depictions of the abuse. Ms. Hurley argued that the district court should have assessed to what extent the details of the father’s abuse were necessary, and at the very least that the defendant should have been able to rebut the inference that R.W. could only have the sexual knowledge she did if she had been abused by the defendant. Ms. Hurley concluded her opening argument by proposing the procedure utilized in State ex rel. Mazurek v. District Court,1 where a balancing test was implemented when the defendant sought to introduce the victim’s alleged prior false accusations of sexual abuse.2 Ms. Hurley advocated for a similar balancing test to be applied on remand in the instant case, where the defendant could give notice of his intent to introduce evidence of prior sexual abuse and explain its relevance to a material issue in this case. She further stated that there should then be a hearing outside of the presence of a jury where the Court could conduct the balancing test and “determine the extent and form of the evidence.”  III. MR. MARK FOWLER FOR THE STATE OF MONTANA  The State commenced its argument with the assertion that the defendant failed to offer sufficient proof as to the relevancy of the abuse R.W. sustained by her father. Furthermore, the State attacked the admissibility of the forensic interview the defense sought to introduce, claiming that it is double hearsay and the defendant had multiple opportunities to have a hearing on that evidence but declined to do so. The Court quickly pointed out that there is a statement in that forensic report (referencing R.W.’s disclosure about the abuse by her father) that is “devastating” to the State as it concerns exactly what the defense is arguing––an alternative source of sexual knowledge. Mr. Fowler                                            1 State ex. rel. Mazurek v. District Court, 922 P.2d 474 (Mont. 1996). 2 Id. at 480. 2015            RECAP; MONTANA V. COLBURN               223    countered that the Court is not permitted under the Constitution to admit irrelevant evidence, regardless of whether or not the State opened the door. Focusing on that specific point, the Court asked if Mr. Fowler really considered evidence of an alternative source of sexual knowledge as irrelevant in a child rape case. Mr. Fowler argued that it was not relevant because the defense never demonstrated the nexus between the incidents of sexual abuse R.W. sustained from her father and from the defendant, to which the Court pointed out the defendant was precluded from raising that defense. Mr. Fowler next argued the forensic interview report was not even introduced to the trial judge until after the jury verdict was delivered, despite ample opportunities to introduce it earlier. He posited that the defense likely waited to introduce the report for strategic reasons: the defense recognized that the incidents of sexual abuse are two totally separate acts and likely feared the relevancy challenge. The Court was again skeptical of that theory, and pushed Mr. Fowler on his stance that the jury should not have been able to hear about a possible alternative source of R.W.’s sexual knowledge. Mr. Fowler conceded that the evidence was only marginally relevant, because R.W. was able to distinguish between the two incidents of sexual assault.  The Court then considered the reasoning behind excluding the details the attacks have in common and allowing the jury to subsequently conclude that R.W. possessed sexual knowledge only from the attack by the defendant. Mr. Fowler responded by stressing the important public policy implications underlying the rape shield, including the risk of confusing or misleading the jury and violating the victim’s privacy. The Court then pointed out that there were many details specific to the alleged attack by the defendant that were not shared by the alleged attack by the father, and the State could have introduced that evidence without “opening the door” to the source of R.W.’s sexual knowledge. The Court further questioned the State’s position on Ms. Hurley’s proposed use of the balancing test under Mazurek.  Mr. Fowler argued that the instant case is distinguishable from Mazurek in that there was no proffered evidence that R.W. fabricated her allegations, while there was evidence of fabrication in Mazurek. The Court then countered that the fabrication was not the point, but rather the admissibility of such evidence, to which the State argued that it was incumbent on defense counsel to proffer that evidence. The State concluded its argument by pointing out that the prosecutor instructed the jury to make its determination of the defendant’s guilt based on R.W.’s in-court testimony, and therefore any error the trial court may have made in excluding evidence was harmless.  IV. HURLEY REBUTTAL BY MS. HURLEY  224 MONTANA LAW REVIEW ONLINE Vol. 76   Before Ms. Hurley began to rebut the State’s arguments, she was asked by the Court for a statement of the rule regarding the exception to the rape shield that she proposes under the Constitution. Ms. Hurley responded by stating that while there is no plain rule statement that can be applied, even if the State doesn’t make the inference explicit (namely, the inference that R.W. could only possess this sexual knowledge if she had been abused by the defendant), it would still naturally be inferred by a jury, which is sufficient on its own to violate the defendant’s constitutional rights. Therefore, the Court should implement a balancing test to allow the defendant to rebut that inference. Regarding the State’s argument that the defense did not make a sufficient offer of proof regarding the relevance of the abuse R.W. sustained by her father, Ms. Hurley strongly denied that assertion and stated the District Court had a copy of the forensic interview where that information was disclosed, it was a proposed exhibit, and it was cited to in the defendant’s motion in limine. The final question from the Court was whether the defense objected to the testimony of Nurse Hanson on direct examination, to which Ms. Hurley said that the testimony was not objectionable under the rules of evidence, and yet the defendant did not have an opportunity to rebut that testimony either.   V. PREDICTIONS  The fact that the Justices asked much more critical questions of the State than of the defendant suggests that this will not be an open-and-shut case. The defendant faced an uphill battle going into oral argument considering the unpleasant nature of the accusations against him and the potential consequences of loosening the standards surrounding the rape shield. However, the Court appeared far more skeptical of the State’s apparent willingness to completely dismiss the defendant’s constitutional right to raise a defense. There is a very real possibility that the appellant could be successful in having this case remanded with instruction that allows him to introduce certain evidence, but regardless of which way the Court rules, this case will have far-reaching implications on the future litigation of child rape cases.  

https://scholarship.law.umt.edu/cgi/viewcontent.cgi?article=1048&amp;context=mlr_online

Recap: \u3cem\u3eState of Montana v. James Morris Colburn\u3c/em\u3e; When the Sole Defense is Precluded by Montana’s Rape Shield Law

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