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Evidence of an Alleged Rape Victim’s Past

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When the defense wants to bring in evidence to establish a motive to lie about the accusation, prosecutors immediately cite “Rape Shield Law” as a counter to any argument a defendant may make in a rape trial. One avenue for defense attorneys to use is Evid.R. 404(B). Generally, this rule protects the defendant from having their character put on trial and distracting those involved from the central issues in the case. The defendant should argue that their right to confront and cross-examine their accuser weighs heavily in favor of permitting 404(B) evidence against the accuser. The 404(B) evidence must have some probative value as to whether the accuser was raped by the defendant. Some cases to reference include: State v. Miller, 5th Dist. 2016; State v. Young, 8th Dist., 2010, State v. Williams (1986), 21 Ohio St.3d 33.

The tricky part for the defense attorney is that some appellate courts request “clear proof” that the 404(B) evidence actually occurred. And, the defense must file a 404(B) Notice of Intent to Use within a reasonable period of time before trial. Then, the trial judge will review the 404(B) records and evidence in camera and will need to reach a decision as to the admissibility of the evidence.

It is common for family members of defendants charged with rape to come up with explanations as to why the accuser is lying and that they has a motive to lie. However, Ohio courts are not going to allow a defendant’s family member to testify about their feelings as to why the accuser is lying. The defense attorney needs to dig deep into leads, look for supporting documentation, and file a compelling 404(B) motion because most trial judges are reluctant to put an accuser on trial.