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Bar Journal - September 1, 2002

Open Door Doctrine Prevails Over the Rape Shield Law: State v. Cannon

By:
OPEN DOOR DOCTRINE PREVAILS
 

I. INTRODUCTION

The New Hampshire Supreme Court's ruling in State v. Cannon supports the legal theory that the Open Door Doctrine should operate against a complainant the same as it does against a defendant, and that the Open Door Doctrine should operate the same in a case involving a sexual assault as it does in other cases.1  Cannon is atypical in New Hampshire case law because there are fewer than a handful of New Hampshire cases involving both the Open Door Doctrine and the Rape Shield Law.2  Cannon is significant because it illustrates the supreme court's reasoning for why and how the Open Door Doctrine can operate to admit evidence against a complainant where the Rape Shield Law would otherwise exclude that evidence.

In Cannon, the Open Door Doctrine clashes head-on with the Rape Shield Law - and prevails. The Open Door Doctrine is a common law doctrine that permits otherwise inadmissible evidence to be presented at trial. The Rape Shield Law is a statute that protects the complainant from harassment and embarrassment during the investigation and at trial by keeping evidence of prior sexual behavior out. The issue before the supreme court in Cannon was whether the complainant had "opened the door" to admit otherwise inadmissible evidence to refute her testimony by testifying that she would not have had consensual sex with the defendant because she had a boyfriend.3  The trial court ruled that the complainant's testimony had not opened the door.4  The supreme court disagreed, ruling that the complainant's testimony had opened the door for another person to testify about having had consensual sex with the complainant two weeks before the alleged sexual assault.5 

This article considers the intent of the Rape Shield Law and common uses of the Open Door Doctrine in New Hampshire courts today. Applying the Rape Shield Law and Open Door Doctrine to Cannon, this article examines why the supreme court's reversal of the case was correct and the policy issues that compel the Open Door Doctrine to prevail over the Rape Shield Law.

II. CASE FACTS

On December 8, 1997, Cannon and the complainant had a sexual encounter. On December 9, 1997, the complainant alleged that Cannon had raped her.7  On December 10, 1997, Cannon voluntarily went to the police station and made a statement alleging that the sex was consensual.8  The investigation took ten months. On October 3, 1998, Cannon was arrested9  and a Belknap County jury subsequently found him guilty of one count of aggravated felonious sexual assault.10  On June 1, 1999, Cannon was sentenced to six to twenty years in the state prison.11 

"The central issue in this case was whether the complainant consented to having sexual intercourse with the defendant."12  During direct examination of the complainant, the prosecutor asked why the sex was not consensual. The complainant answered that she would not have had consensual sex with Cannon because she had a boyfriend, Michael Taylor. 13 

After the State rested its case, the defense moved to call Cannon's cousin Louis Sylvester as a witness to refute the complainant's testimony.14  Defense counsel explained that Sylvester would testify to having had consensual sex with the complainant two weeks prior to the alleged rape.15  The alleged sex happened at the defendant's home, in the defendant's bed,16  and "although [Sylvester] initially resisted, [he] had consensual sex with the complainant after [Cannon] encouraged him to do so."17  The State countered that the defendant's motion was untimely under the pre-trial rule of evidence set forth in State v. Howard,18  and that Sylvester's testimony was exactly the kind of evidence that is barred by the Rape Shield Law19  and its counterpart20  in the New Hampshire Rules of Evidence.21 

The trial court agreed with the State, and denied the admission of Sylvester's testimony. "[It] found that the defendant had notice through discovery that one reason the complainant did not want to have sex with him was because she had a boyfriend and further, that the defendant knew about Sylvester's encounter with the complainant. Additionally, the court found that the prejudicial effect of Sylvester's testimony would have outweighed its probative value 'on a very peripheral issue.' "22 

III. THE LAW & THE DOCTRINE

A. Rape Shield Law

The Rape Shield Law, New Hampshire Revised Statute Annotated 632-A:6, was enacted by the New Hampshire Legislature and became effective August 6, 1975.23  The Legislature believes that courts have an obligation to protect complainants from improper questions.24  The purpose of the Rape Shield Law is to create a testimonial privilege that protects the complainant from being subjected "to unnecessary embarrassment, prejudice and courtroom procedures that only serve to exacerbate the trauma of the rape itself; the underpinnings of that privilege are grounded in the constitutional right to privacy."25 

New Hampshire's Rape Shield Law mandates the exclusion of evidence regarding a complainant's prior consensual26  sexual activity with any person other than the defendant.27  The defendant, however, retains the rights to due process and confrontation of witnesses, thus limiting the Rape Shield Law's prohibitive sweep.28  The Rape Shield Law has been constitutionally construed to allow the defendant, upon motion and out of the jury's presence, the opportunity to demonstrate that due process requires admission of prior consensual sexual activity between the complainant and any other person.29  In New Hampshire, these are called Howard motions.

State v. Howard established a pre-trial legal procedure for New Hampshire courts to determine whether a person's prior sexual acts should or should not be admitted into evidence at a sexual assault trial.30  In Howard, the supreme court held that a defendant being prosecuted under the Rape Shield Law must, upon motion, be given an opportunity to demonstrate that due process requires the admission of such evidence because the probative value in the context of that particular case outweighs its prejudicial effect on the prosecutrix.31  Howard motions give the defense an opportunity to argue to the judge that certain evidence should be admitted and the State is then given the opportunity to object - outside of the presence of the jury. The Rape Shield Law, through Howard motions, provides the complainant with a procedure to screen the admittance of evidence at trial. The Rape Shield Law operates to keep evidence out, while the Open Door Doctrine operates to let evidence in.

B. Open Door Doctrine

In New Hampshire, the reasoning behind excluding certain evidence and the underlying basis of the Open Door Doctrine exception traces back to 1876. In State v. LaPage, the supreme court stated, "It is quite inconsistent with that fairness of trial to which every man is entitled, that the jury should be prejudiced against him by any evidence except what relates to the issue."32  The supreme court went on to explain that "[o]f course, if the respondent sees fit to put his character in issue by offering evidence tending to show that it is good, it is then permitted to the prosecution to rebut this testimony by showing that it is bad."33 

Historically, "opening the door" was usually identified with the doctrine of curative admissibility.34  Under curative admissibility, the introduction of inadmissible evidence entitled the opposing party to do likewise in denial or explanation.35  Even though the Open Door Doctrine began as curative admissibility, New Hampshire courts have expanded its application.36  Today, the doctrine applies "when one party introduces evidence that provides a justification beyond mere relevance for an opponent's introduction of otherwise inadmissible evidence."37 

In practice now, the Open Door Doctrine is broadly applied to "situations in which a misleading advantage may be countered with previously suppressed or otherwise inadmissible evidence."38  For example, in State v. Carlson, the supreme court held that " 'when a defendant leaves the trier of fact with a false or misleading impression, the State is entitled to counter with evidence to refute the impression created by the defendant and cure the misleading advantage.' "39  The supreme court explained " '[t]his rule prevents a defendant from successfully excluding inadmissible evidence favorable to the State and then selectively introducing pieces of this evidence for his own advantage, without allowing the prosecution to place the evidence in its proper context.' "40 

In evaluating generally inadmissible evidence, the trial court uses a balancing test to determine the evidence's admissibility. The Open Door Doctrine applies " 'only when inadmissible evidence has been allowed, when that evidence was prejudicial, and when the proffered testimony would counter that prejudice.' "41  The balancing test involves determining whether the evidence is more probative than prejudicial. Probative evidence is allowed in; prejudicial evidence is excluded. According to the supreme court, the Open Door Doctrine "permits a trial judge, in his or her discretion, to admit otherwise inadmissible evidence to rebut prejudicial evidence that has been admitted."42  Further, because " '[t]he trial court is in the best position to make this determination, the supreme court "will not disturb such a finding absent an abuse of discretion.' "43 

The Open Door Doctrine cannot be used, however, to dispute a minute factual detail of a witness's testimony. In State v. Weeks, the defendant was on trial for operating a vehicle after having been certified a habitual offender.44  During cross-examination, the defense counsel sought to impeach a witness's testimony by using a prior conviction.45 The witness admitted to committing welfare fraud of a few hundred dollars.46  The defendant argued "that he should have been permitted to question the witness further about the precise amount of money involved, because although the witness testified that it was 'only a few hundred dollars,' the actual amount was over seven hundred dollars."47  The defendant asserted that "the witness's purported misrepresentation of [the particulars] of the conviction opened the door to further inquiry."48  The supreme court found "the defendant's argument that the witness opened the door to further cross-examination unpersuasive."49  The supreme court stated that "[f]or the [Open Door Doctrine] to apply, the testimony at issue must have created a misimpression."50  The supreme court reasoned that though "the actual amount may have been over seven hundred dollars, [it] does not change the essential nature of the fraudulent conduct the witness admitted to in front of the jury."51  Therefore, the supreme court did not believe that the understatement of the amount involved in the crime materially misled the jury.52 

The supreme court distinguishes between not using the Open Door Doctrine to dispute a minute factual detail and using the Open Door Doctrine when a witness lies on the stand.53  The Open Door Doctrine can be used, for example, against a witness to admit prior convictions that would have been otherwise inadmissible under New Hampshire Rule of Evidence 608, Impeachment by Evidence of Conviction of a Crime.54  Generally, Rule 608 prohibits the introduction of extrinsic evidence to prove specific instances of bad conduct of a witness for the purposes of attacking the witness's credibility.55  On its face, Rule 608(b) provides that a party may never prove, by extrinsic evidence, specific instances of a witness's conduct to impeach that witness.56 

The supreme court explained in State v. Mello, however, that Rule 608(b)'s prohibition against using extrinsic evidence is directed at its use to attack a witness's general credibility.57  "If a defense witness lies on the stand and thereby creates a 'misleading advantage,' the State is entitled to counter with evidence 'to refute the impressions created by [the witness's]...testimony.' "58  The supreme court stated that applying Rule 608 otherwise " 'would convert a general rule into a license to make affirmative misrepresentations and commit perjury without fear of contradiction.' "59  Accordingly, the supreme court stated in Mello, that " '[t]he defendant, by presenting certain evidence, may open the door to the introduction of otherwise inadmissible evidence for the limited purpose of impugning the veracity of the witness presented by the defendant.' "60 

Concerning a defendant, the Open Door Doctrine can prevail over New Hampshire Rule of Evidence 404(b) in the same way it prevailed over Rule 608 regarding witnesses. Rule 404(b) states that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith.61  Yet, a simple statement of denial by the defendant can open the door.62  The Open Door Doctrine can then permit the admission of evidence of prior bad acts or prior convictions that would otherwise not be admissible against the defendant under Rule 404(b).

For example, in State v. Taylor, the defendant had been charged with felonious sexual assault63  of a 10-year-old girl.64  Applying Rule 404(b), the trial court denied the State's motion in limine to allow the testimony of two women who had been sexually assaulted as children by Taylor twenty years earlier.65  During cross-examination, Taylor testified, "No, I did not touch [the complainant] in any inappropriate manner. I wouldn't do a thing like that."66  The trial court found that the defendant had placed his character "in issue" and "opened the door" for the two women to testify.67  The supreme court affirmed, holding that the defendant had " 'opened the door' and entitled the State to counter with otherwise inadmissible evidence to show that the defendant lied and to refute the misleading impressions created by his testimony."68  The supreme court explained that holding otherwise would allow the defendant to enjoy " 'a license to make affirmative misrepresentations and commit perjury without fear of contradiction.' "69 

Counsel, too, can open the door.70  In State v. Goodman, counsel was defending charges of aggravated felonious sexual assault and criminal threatening.71  During his opening statement and in cross-examination, the defense counsel opened the door by seeking to impeach the complainant's credibility, by " 'painting a rosy picture of somebody who had no reason to be afraid; and if she really was afraid, she should have left.' "72  Counsel established that the complainant and the defendant had consensual sexual relations on the night of the threats and that the complainant did not leave or call for help after the defendant had initially threatened to kill her.73  The State then argued that counsel had " 'opened the door' " to the admissibility of the previously excluded evidence of the defendant's aggressive conduct because the defense's cross-examination created a misimpression that the complainant was not afraid of the defendant and that she could have left him at any point during the evening."74  The supreme court affirmed the trial court ruling on this issue,75  stating that the jury was left with a misimpression and the door had been opened.76  Thus, along with witnesses and defendants, counsel can also open the door.

Furthermore, the complainant can open the door.77  In sexual assault cases, the Open Door Doctrine permits the admission of past sexual acts against the complainant even though they would be generally inadmissible under the Rape Shield Law and New Hampshire Rules of Evidence.78  The legislative intent behind the Rape Shield Law is to spare the complainant testifying at trial from unnecessary embarrassment, prejudice, harassment, and improper questions,79  and New Hampshire Rule of Evidence 412 prohibits evidence of prior sexual activity.80  Nonetheless, a complainant may open the door by testifying about a past sexual act that creates a misimpression or by offering testimony that misleadingly bolsters the complainant's credibility.81  The defendant's constitutional rights to due process and confronting witnesses then allows him to introduce evidence of prior sexual acts to correct the misimpression.82  The supreme court's ruling in State v. Cannon exemplifies how the Open Door Doctrine-even in a case of sexual assault-operates the same against complainants as it does against witnesses, defendants, and counsel.83 

This article has thus far examined the Rape Shield Law and how the Open Door Doctrine can operate against witnesses, defendants, counsel, and complainants. Next, the article will look at the rulings in Cannon and the policy reasons that justify equal use of the Open Door Doctrine against complainants and in sexual assault cases.

IV. RULINGS & POLICY REASONS

A. Cannon Rulings

In State v. Cannon, the supreme court squarely addressed both the Open Door Doctrine and the Rape Shield Law. The supreme court found that the door had been opened because "the complainant's testimony served only to bolster her credibility regarding the issue of consent,"84  however, the complainant's dating history was not allowed in through an open door.85  With regard to the Rape Shield Law, the supreme court did not find that there was "a sufficient basis upon which to file a Howard motion."86 

In Cannon, the defendant alleged that the sex in question was consensual.87  Conversely, the complainant said she would not have consented to sex with the defendant because she had a boyfriend.88  The defense argued on appeal that the complainant by so testifying had opened the door to examining her prior history of consensual sexual activity.89  The trial court decided to preclude the defense from presenting another person's testimony about having consensual sex with the complainant because the defendant had not filed a timely Howard motion, and the party's testimony was otherwise inadmissible under the Rape Shield Law.90 

The State argued, on appeal, that the trial court's decision should be upheld.91  The State claimed that the defendant had sufficient notice through discovery to facilitate filing a timely Howard motion, because the defense had notice of the complainant's statement to the police that she had repeatedly told the defendant "no" because she had a boyfriend.92  Further, the State asserted that the Open Door Doctrine did not apply because the complainant's statements "were not such plain denials of specific prior behavior that it 'opened the door' to her past infidelity."93 

The supreme court reversed the trial court and remanded the case, holding that the complainant had opened the door when she said she would not have had sex with the defendant because she had a boyfriend.94  The supreme court noted that the complainant "had no obligation to explain her reasons for not consenting."95  Once she did, however, the defendant was entitled to present evidence to refute her explanation.96 

The defense wanted to call James Gagnon to the stand to rebut another part of the complainant's testimony.97  The defense argued that Gagnon's testimony should be admissible because the complainant had opened the door by testifying that she never asked him for a date.98  Further, the defendant argued that the complainant's "direct examination testimony created the impression that she would not consent to sex with [the defendant] because she was the kind of person who stayed in a monogamous relationship with her boyfriend, and not the kind that would hit on people already involved in a relationship with her friends and classmates."99  "The trial court excluded Gagnon's testimony citing New Hampshire Rule of Evidence 608," which prohibits the introduction of extrinsic evidence to prove "specific instances of bad conduct of a witness for the purposes of attacking the witness's credibility."100 

The supreme court ruled that the complainant's "testimony did not open the door to the admission of extrinsic evidence concerning whom she had asked out on dates in the past."101  The supreme court explained that Rule 608 could permit extrinsic evidence to be admitted at trial "when it directly contradicts a witness's testimony because such evidence does not attack the witness's general credibility, but rather the truthfulness of the specific testimony."102  The supreme court also agreed that "Gagnon's testimony concerning whether or not the complainant asked him out on a date could serve to rebut the complainant's testimony that she never asked him out on a date."103  Nonetheless, the supreme court stated it could not say "that the trial court abused its discretion in limiting the scope of Gagnon's testimony because the defendant had not demonstrated 'that the court's ruling was clearly untenable or unreasonable to the prejudice of his case.' "104 

A simpler explanation for the supreme court to rule that the dating testimony did not open the door is found in State v. Benoit. In Benoit, the supreme court held that the door being "opened does not, by itself, permit all evidence to pass through"105  and that " 'the [Open Door] doctrine is to prevent prejudice and is not to be subverted into a rule for injection of prejudice.' "106 

The defendant in Cannon also argued that his failure to comply with the time limit for filing a Howard motion should be excused, because he could not have moved for a Howard hearing until the complainant "opened the door" with her testimony at trial.107  New Hampshire Superior Court Rule 100-A states that a defendant seeking to introduce evidence of a complainant's prior sexual history must file a Howard motion with the court not less than forty-five days prior to trial.108  If the defendant fails to file such motion, he is precluded from relying on such evidence, except for good cause shown.109  "The trial court denied the defendant's motion, citing New Hampshire Rules of Evidence 403, 412, and 608," and stated that "the rules require certain timeliness for filing Howard motions."110 

The supreme court held that the trial court erred in denying the defendant's motion for a Howard hearing.111  While the supreme court agreed "that the defendant had notice of the complainant's statements to the police," "[it] disagreed that knowledge of this information formed a sufficient basis upon which to file a Howard motion."112  The supreme court explained, "Sylvester's testimony would not have been admissible if the State had not opened the door to its admission by asking the complainant her reasons for not consenting to sexual intercourse with the defendant."113  The court further explained that "the defendant could not have been expected to foresee that the State would present him with the opportunity to admit this otherwise inadmissible testimony."114 

The rulings in Cannon were (1) the complainant's statement that she would not have had consensual sex with the defendant because she had a boyfriend opened the door, (2) the complainant's testimony about asking someone out did not open the door, and (3) the pre-trial discovery alone was not sufficient notice to trigger a Howard hearing. Next, the article will look at the policy reasons that justify the Open Door Doctrine prevailing over the Rape Shield Law.

B. Policy Reasons

The Cannon rulings incensed rape victim's rights advocates.115  While conceding that the supreme court may have had good legal reasons for throwing out the conviction, rape victim's rights advocates argue that the ruling will scare off complainants who already fear that coming forward will subject their sex lives to public examination on the witness stand.116  These advocates view Cannon as running counter to the Rape Shield Law,117  in particular, that portion of the statute which expressly states that "prior consensual sexual activity between the victim and any person other than the actor shall not be admitted into evidence in any prosecution under this chapter."118  On the surface, some protection for the complainant was lost; yet summarizing Cannon as saying that to open the door a complainant must only say that he or she would not have had sex because they had a boyfriend or girlfriend, takes the statement out of context, making it appear that Cannon swept the door open for all complainants claiming to be in a committed relationship.

Despite warnings of rape victim's rights advocates to the contrary, the Rape Shield Law does not separate sexual assault victims from victims of other crimes with regards to the limits on what opens the door. As defense counsel Behzad Mirhashem said, "[T]he Rape Shield Law is indeed only a shield. It is not a sword."119  In fact, the Cannon court resisted setting a different standard for what opens the door in a sexual assault case vis-à-vis what opens the door for a complainant in other crimes. Although the Rape Shield Law differentiates sexual assault victims from victims of other crimes in an attempt to protect them, Cannon teaches that the Open Door Doctrine is not to be undermined by the nature of the crime or by whether the person is the complainant, witness, counsel, or defendant. The criminal justice system would lose credibility and be thwarted by setting a different standard based on the nature of the crime or person giving testimony.

The Cannon ruling illustrates a balancing of justice. The Rape Shield Law protects sexual assault complainants from being harassed or embarrassed on the stand by preventing specific instances of sexual conduct from being admitted into evidence.120  It has also been recognized that a person's consensual sexual activity involves privacy right, which is afforded a measure of protection under the United States Constitution.121  Accordingly, a person's entire sexual history, including any alleged predilection for promiscuity and indiscriminate sexual activity, cannot be paraded in court.122  Similarly, the New Hampshire Rules of Evidence limit the admission of prior acts of bad behavior to ensure that defendants are not convicted for past wrongdoings in the present case.123 

On the other hand, in appropriate circumstances, the Open Door Doctrine operates as a check and balance to admit the very same evidence that the Rape Shield Law and the evidentiary rules are designed to otherwise routinely exclude. It may appear that in using the Open Door Doctrine to prevail over the Rape Shield Law and the New Hampshire Rules of Evidence that one is losing certain established protections. There is no justice, however, if a trial is not fair. If one party, whether the complainant or accused, were allowed to prejudice the picture, the judge or jury could not rule fairly and justice would suffer. Such would be the case were one party allowed to admit prejudicial evidence while the other party is left with no way to counter the admission. Because the judge or jury cannot rule fairly if a misimpression is allowed to stand uncorrected, the Open Door Doctrine allows the trial judge to correct that misimpression restoring fairness to the trial.

Thus, proper application of the Open Door Doctrine operates to maintain a fair trial for both parties. In the Cannon case, the supreme court could hardly have ruled other than as it did without thwarting the goals of the criminal justice system and trial fairness for both the complainant and the defendant.

V. CONCLUSION

The rulings coupled with the policy reasons show that Cannon supports the legal theory that the Open Door Doctrine should operate the same against complainants as defendants, and that the Open Door Doctrine should operate the same in a sexual assault case as in any other case. In holding that the complainant had opened the door with her testimony in a sexual assault case, the supreme court ruled correctly that there is no exception to the Open Door Doctrine. New Hampshire caselaw has well established that the Open Door Doctrine should operate the same against a complainant as it does against a defendant, witness, or counsel and Cannon shows the Open Door Doctrine to operate the same in a sexual assault case as it does in any other. In Cannon, the trial court erred in protecting the complainant by not opening the door and should have opened the door to allow the defense to correct the misimpression. As the supreme court subsequently ruled, there should not be a different standard applied for opening the door in a sexual assault case.

There cannot be two systems of criminal procedure at work in a trial: one for the complainant and one for the defendant. The door should swing both ways and not easily against the defendant while being virtually sealed shut against a sexual assault complainant. Evidence coming into trial that creates a misimpression must be countered to ensure the basic fairness of the proceeding. In such circumstances, the balancing of rules and rights must allow the door to open and admit sufficient evidence to cure the misimpression. By its application of the Open Door Doctrine to return balance to the trial when a misimpression was afoot, Cannon illustrates in New Hampshire caselaw how necessary balancing of rules and doctrines should be applied to ensure that basic trial fairness is maintained within the special penumbra of the Rape Shield law.

ENDNOTES

1. See State v. Cannon, 776 A.2d 736, 738 (2001) (holding that the trial court erred in denying the defendant's motion, and stating that while normally evidence of the complainant's sexual history would be excluded pursuant to the rape shield doctrine, the State opened the door to the admissibility of Sylvester's testimony when it asked the complainant why she pushed the defendant's hands away and told him "No").
2. See generally State v. Cannon, 776 A.2d 736 (2001) (sexual assault complainant's testimony opened the door); State v. Cressey, 137 N.H. 402 (1993) (finding that medical testimony did not open the door in a child sexual abuse case); State v. Facteau, 133 N.H. 860 (1991) (determining that a party may open the door); State v. Butler, 117 N.H. 888 (1977) (finding that out-of-court identification might open the door).
3. State v. Cannon, 776 A.2d 736, 738 (2001).
4. Id.
5. Id.
6. Br. of State at 5, State v. Cannon, 776 A.2d 736 (2001).
7. Br. of State at 6, State v. Cannon, 776 A.2d 736 (2001).
8. Br. of State at 6-7, State v. Cannon, 776 A.2d 736 (2001).
9. Br. of State at 7, State v. Cannon, 776 A.2d 736 (2001).
10. State v. Cannon, 776 A.2d 736, 737 (2001).
11. Notice of Appeal at 1, State v. Cannon, 776 A.2d 736 (2001).
12. State v. Cannon, 776 A.2d 736, 739 (2001).
13. Id. at 737-38
Q: Okay. And he was trying to touch your side in what fashion? He is laying down next to you, how is he taking his hand trying to touch you? A: He was just reaching over. Q: What did you do? A: I pushed his hand off of me and told him no. Q: Why? A: Because I had a boyfriend. Q: After he reached over to try to touch you, what did he do next? A: He just kept trying to touch me. It was just like he kept trying. It wasn't like he just stopped. Q: What was he saying, if anything, as he was trying to touch you? A: You know you want to. Q: And what were you saying? A: No. I have a boyfriend and Jen was my friend. I didn't want to hurt her. (emphasis added).
14. Id. at 738.
15. Id.
16. Id.; Br. of Def. at 8, State v. Cannon, 776 A.2d 736 (2001).
17. Id.
18. State v. Howard, 121 N.H. 53 (1981); see Super. Ct. R. 100-A (stating that a defendant seeking to introduce evidence of a complainant's prior sexual history must file a Howard motion with the court not less than forty-five days prior to trial; and if the defendant fails to file such motion, he shall be precluded from relying on such evidence, except for good cause shown).
19. N.H. Rev. Stat. Ann. 632-A:6 (2000).
20. N.H. R. Evid. 412(a)
Rule 412. Evidence of Prior Sexual Activity. (a) Except as constitutionally required, and then only in the manner provided in (b), below, evidence of prior consensual sexual activity between the victim and any person other than the defendant shall not be admitted into evidence in any prosecution or in any pretrial discovery proceeding undertaken in anticipation of a prosecution under the laws of this state.
21. Br. of State at 30, State v. Cannon, 776 A.2d 736 (2001).
22. Id.
23. N.H. Rev. Stat. Ann. 632-A:6 (1975).
24. N.H. Rev. Stat. Ann. 632-A:6 (2000), #3. Purpose.
25. Id.
26. N.H. Rev. Stat. Ann. 632-A:6 (2000), #0.5. Applicability.
The rape shield doctrine does not apply when prior non-consensual conduct is at issue, although evidence of prior non-consensual sexual conduct would be subject to evidentiary standards for admissibility, including N.H. Rule of Evidence 403. The N.H. Rule of Evidence 403 allows for the exclusion of relevant evidence on the grounds of prejudice, confusion or waste of time.
27. N.H. Rev. Stat. Ann. 632-A:6 (2000), #1. Constitutionality.
28. Id.
29. Id.
30. State v. Howard, 121 N.H. 53, 58-59 (1981).
31. Id.
32. State v. LaPage, 57 N.H. 245, 289-90 (1876).
33. Id.
34. See State v. Crosman, 125 N.H. 527, 530 (1984).
35. State v. Crosman, 125 N.H. 527, 530-31 (1984) (citing C. McCormick, Handbook on the Law of Evidence, 57 (2nd ed. 1972)).
36. State v. Benoit, 126 N.H. 6, 21 (1985).
37. State v. Crosman, 125 N.H. 527, 530 (1984).
38. Id. at 531; (See, e.g., State v. Brown, 125 N.H. 346 (1984); State v. Butler, 117 N.H. 888 (1977); Harris v. New York, 401 U.S. 222 (1971)).
39. State v. Carlson, 767 A.2d 421, 425 (2001) (quoting State v. MacRae, 141 N.H. 106, 114 (1996)).
40. Id.
41. State v. Benoit, 126 N.H. 6, 20 (1985) (quoting United States v. Nardi, 633 F.2d 972, 977 (1st Cir. 1980)); see also 1 Wigmore, Evidence 15 (Tillers rev. 1983); C. McCormick, Handbook of the Law of Evidence 57 (2nd ed. 1972); 1 Weinstein's Evidence para. 103[02] (1982).
42. State v. Goodman, 145 N.H. 526, 528 (2000) (citing State v. Benoit, 126 N.H. 6, 20 (1985)).
43. Id. at 529 (2000) (quoting State v. Taylor, 139 N.H. 96, 100 (1994)).
44. State v. Weeks, 140 N.H. 463, 464 (1995).
45. Id. at 465.
46. Id. at 466.
47. Id. at 467.
48. Id. (citing State v. Norgren, 136 N.H. 399, 401-02 (1992)).
49. Id. at 468.
50. Id. (citing State v. Norgren, 136 N.H. 399, 401-02 (1992)).
51. State v. Weeks, 140 N.H. at 468.
52. Id.
53. See State v. Mello, 137 N.H. 597 (1993).
54. N.H. R. Evid. 608(b) (2001).
55. State v. Cannon, 776 A.2d 736, 739 (2001) (see N.H. R. Evid. 608).
56. State v. Taylor, 139 N.H. 96, 100 (1994).
57. Id.
58. State v. Mello, 137 N.H. 597, 601 (1993) (quoting State v. Sullivan, 131 N.H. 209, 213 (1988)).
59. State v. Mello, 137 N.H. 597, 601 (1993) (quoting State v. Pugliese, 129 N.H. 442, 443 (1987)).
60. Id. (quoting State v. Sullivan, 131 N.H. 209, 213 (1988)).
61. N.H. R. Evid. 404(b) (2001).
62. See State v. Taylor, 139 N.H. 96 (1994) (determining that denial of sexually assaulting underaged girls opened the door); State v. Mello, 137 N.H. 597 (1993) (denial of prior arrest); State v. Carlson, 767 A.2d 421 (2001) (denial of sex with underaged girls).
63. N.H. Rev. Stat. Ann. 632-A:3. Felonious Sexual Assault, III. Engages in sexual contact with a person other than his legal spouse who is under 13 years of age.
64. State v. Taylor, 139 N.H. 96, 98 (1994).
65. Id. at 99.
66. Id.
67. Id.
68. Id. at 100 (quoting State v. Mello, 137 N.H. 597, 600-01 (1993)).
69. Id. (quoting State v. Mello, 137 N.H. 597, 601 (1993)).
70. See State v. Goodman, 145 N.H. 526 (2000); see also State v. Barnett, 789 A.2d 629 (2001) (reversed on other grounds).
After defense counsel cross-examined Detective regarding the circumstances of the defendant's confession and the methods the detective used to obtain that confession, the trial court under the "opening the door" doctrine, allowed the State to introduce the previously excluded evidence of the prior conviction during its redirect examination of the Detective.
Quoted from Br. of State at 34, State v. Barnett, 789 A.2d 629 (2001).
71. State v. Goodman, 145 N.H. 526 (2000).
72. Id. at 530.
73. Id. at 528.
74. Id.
75. Id. at 527.
76. Id. at 528.
77. See State v. Cannon, 776 A.2d 736 (2001).
78. N.H. Rev. Stat. Ann. 632-A:6 (2000); N.H. R. of Evid. 412 (2000).
79. N.H. Rev. Stat. Ann. 632-A:6 (2000) (#3. Purpose.)
80. N.H. R. of Evid. 412 (2000) (Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition (a) Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. (2) Evidence offered to prove any alleged victim's sexual predisposition.)
81. State v. Cannon, 776 A.2d 736, 739 (2001).
82. N.H. Rev. Stat. Ann. 632-A:6 (2000), #1 - Constitutionality.
83. See State v. Cannon, 776 A.2d 736 (2001).
84. State v. Cannon, 776 A.2d 736, 739 (2001) (see State v. Calbero, 71 Haw. 115 (Haw. 1989)).
85. Id. at 740.
86. Id. at 739.
87. Id.
88. Id. at 738.
89. Br. of Def. at 9, State v. Cannon, 776 A.2d 736 (2001).
90. Br. of State at 18, State v. Cannon, 776 A.2d 736 (2001).
91. Br. of State at 18, State v. Cannon, 776 A.2d 736 (2001).
92. State v. Cannon, 776 A.2d 736, 739 (2001).
93. Id.
94. Id. at 738.
95. Id. at 739.
96. Id.
97. Id.
98. Id. at 740.
99. Id.
100. Id. at 739-40 (see N.H. R. Evid. 608).
101. Id. at 740.
102. Id.
103. Id.
104. Id. (quoting State v. Young, 144 N.H. 477, 482 (1999)).
105. State v. Benoit, 126 N.H. 6, 30 (1985).
106. Id. (quoting United States v. Winston, 477 F.2d 1236, 1240 (D.C. Cir. 1971)).
107. Brief of State at 21, State v. Cannon, 776 A.2d 736 (2001).
108. State v. Cannon, 776 A.2d 736, 738 (2001) (see N.H. Sup. Ct. R. 100-A).
109. Id. at 737 (see N.H. Sup. Ct. R. 100-A).
110. Id. at 738 (see State v. Howard, 121 N.H. 53 (1981)).
111. Id.
112. Id. at 739.
113. Id.
114. Id.
115. Nancy Meersman, Supreme Court Criticized for Throwing Out Sexual Assault Conviction, The Union Leader & New Hampshire Sunday News (web edition) (June 28, 2001) (discussing the facts of the case and reaction of rape victim's rights advocates).
116. Id.
117. See Id.
118. N.H. Rev. Stat. Ann. 632-A:6 (2000).
119. Brief of Defendant at 16, State v. Cannon, 776 A.2d 736 (2001).
120. N.H. Rev. Stat. Ann. 632-A:6 (2000), #8 - Limitations.
121. State v. Howard, 121 N.H. 53, 59 (1981) (citing Roe v. Wade, 410 U.S. 113, 152-53 (1973) (right to abortion case)).
122. N.H. Rev. Stat. Ann. 632-A:6 (2000), #8 Limitations.
123. N.H. R. Evid. 404(b) (2001).

Acknowledging with appreciation:

  • Keith F. Barnaby, Cannon's Defense Counsel, currently the Director, Criminal Practice Clinic, Franklin Pierce Law Center
  • Stephen Fuller, Attorney for the State, Criminal Justice Bureau, Office of Attorney General - NH
  • Behzad Mirhashem, Appellate Defense Counsel, NH Public Defender's Office

The Author

S. L. Rawls, Class of 2003, Franklin Pierce Law Center, Concord, New Hampshire.

 

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