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The Colorado Rape Shield Law

18-3-407. Victim’s and witness’ prior history – evidentiary hearing

Statute text

Evidence of specific instances of the victim’s or a witness’ prior or subsequent sexual conduct, opinion evidence of the victim’s or a witness’ sexual conduct, and reputation evidence of the victim’s or a witness’ sexual conduct shall be presumed to be irrelevant except:

  1. Evidence of the victim’s or witness’ prior or subsequent sexual conduct with the actor;
  2. Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing that the act or acts charged were or were not committed by the defendant.

In any criminal prosecution under sections 18-3-402 to 18-3-405.5, 18-6-301, 18-6-302, 18-6-403, and 18-6-404, or for attempt or conspiracy to commit any crime under sections 18-3-402 to 18-3-405.5, 18-6-301, 18-6-302, 18-6-403, and 18-6-404, if evidence, that is not excepted under subsection (1) of this section, of specific instances of the victim’s or a witness’ prior or subsequent sexual conduct, or opinion evidence of the victim’s or a witness’ sexual conduct, or reputation evidence of the victim’s or a witness’ sexual conduct, or evidence that the victim or a witness has a history of false reporting of sexual assaults is to be offered at trial, the following procedure shall be followed:

  1. A written motion shall be made at least thirty days prior to trial, unless later for good cause shown, to the court and to the opposing parties stating that the moving party has an offer of proof of the relevancy and materiality of evidence of specific instances of the victim’s or witness’ prior or subsequent sexual conduct, or opinion evidence of the victim’s or witness’ sexual conduct, or reputation evidence of the victim’s or witness’ sexual conduct, or evidence that the victim or witness has a history of false reporting of sexual assaults that is proposed to be presented.
  2. The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.
  3. If the court finds that the offer of proof is sufficient, the court shall notify the other party of such and set a hearing to be held in camera prior to trial. In such hearing, the court shall allow the questioning of the victim or witness regarding the offer of proof made by the moving party and shall otherwise allow a full presentation of the offer of proof including, but not limited to, the presentation of witnesses.
  4. An in camera hearing may be held during trial if evidence first becomes available at the time of the trial or for good cause shown.
  5. At the conclusion of the hearing, if the court finds that the evidence proposed to be offered regarding the sexual conduct of the victim or witness is relevant to a material issue to the case, the court shall order that evidence may be introduced and prescribe the nature of the evidence or questions to be permitted. The moving party may then offer evidence pursuant to the order of the court.

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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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