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753 N.E.2d 100

Zawacki v. State

Indiana Court of Appeals

Decided August 10, 2001

Indiana Court of Appeals · decided 2001-08-10

Cited by 7 later decisions — most recently January 2006

7 state decisions

Key passage — most relied on by later courts

“(a) In a prosecution for a sex crime, evidence of the past sexual conduct of a victim or witness may not be admitted, except: (1) evidence of the victim's or of a witness's past sexual conduct with the defendant; (2) evidence which shows that some person other than the defendant committed the act upon which the prosecution is founded; (3) evidence that the victim's pregnancy at the time of trial was not caused by the defendant; or (4) evidence of conviction for a crime to impeach under Rule 609. (b) If a party proposes to offer evidence under this rule, the following procedure must be followed: (1) A written motion must be filed at least ten days before trial describing the evidence. For good cause, a party may file such motion less than ten days before trial. (2) The court shall conduct a hearing and issue an order stating what evidence may be introduced and the nature of the questions to be permitted. (c) If the state acknowledges that the victim's pregnancy is not due to the conduct of the defendant, the court may instruct the jury accordingly, in which case other evidence concerning the pregnancy may not be admitted. The rule exists because an inquiry into a victim's prior sexual activity is sufficiently problematic that it should not be permitted to become a focus of the defense. Rule 412 is intended to prevent the victim from being put on trial, to protect the victim against surprise, harassment, and unnecessary invasion of privacy, and, importantly, to remove obstacles”

quoted by 1 later decision, including Williams v. State

Relies on Williams v. State · Thomas v. State · Rohm v. State

Good law ✅— No negative treatment on recordhow we know

Decided 2001-08-10

View the full empirical analysis of this case →

RILEY, Judge,

¶1dissenting.

¶2I respectfully dissent. Zawacki claims that the trial court has denied him his constitutional right to confrontation and effective cross-examination by excluding defense evidence concerning the bias, prejudice, and motives of the prosecuting witness. It should be made perfectly clear at the outset that the Rape Shield Statute is facially constitutional. The statute does not violate the defendant's Sixth Amendment right to confront witnesses absent a showing of actual impingement of cross-examination. Thomas v. State, 471 N.E.2d 677 (Ind.1984).

¶3The offer of proof requested the court to admit testimony that S.H. had requested permission from Mr. and Mrs. Zawaeki to engage in a lesbian relationship with their daughter. The majority posits that this evidence "does not concern any actual pri- or sexual activity or conduct on S.H.'s part." (Emphasis added). I cannot understand how a request to engage in a lesbian relationship could be anything other than an attempt to introduce evidence that implies past sexual conduct. The Rape Shield Law provides that the only way past sexual activity of a vietim or witness can be admitted in evidence is: 1) past sexual conduct with the victim; 2) evidence that some person other than defendant committed the act; 3) if vietim is pregnant at time of trial and under Evid. R. 412, if the past sexual activity is evidence of conviction for a crime to impeach under Rule 609. I fail to see how admitting a letter requesting permission to enter into a lesbian relationship with the defendant's daughter fits within any of the statutory exceptions or exception to Rule 412.

¶4The trial court in Rohm v. State, 558 N.E.2d 1100 (Ind.1990) properly excluded evidence that the complaining witness had stated shortly before the attempted rape that her "birthday wish was to find a lover." The court held that while it was somewhat relevant to the issue of defendant's state of mind on the issue of consent or mistake, the "birthday wish" was for sexual activity with a third party not with the defendant.

¶5If, in fact, Zawacki believed that this evidence should have been admitted under Indiana Evidence Rule 412, he should have filed a written motion describing the evidence at least 10 days before trial. Evid.R. 412(b)(1). This he failed to do so that the evidence was properly excluded.

¶6Rule 412 seeks to prevent undue embarrassment and public humiliation for a sex crime victim and to prevent the trial from becoming an inquiry about her sexual reputation or past conduct. Williams v. State, 681 N.E.2d 195, 200 (Ind.1997). It is a rule to protect the victim against unnecessary invasions of privacy in order to remove obstacles to reporting sex crimes. Id.

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