In Commonwealth v. Mendez, Slip Op. July 15, 2010 the Massachusetts Appeals Court held that even if the prosecution permits the admission of otherwise excludable evidence it can later embrace the Rape Shield Statutes’ protections. Similarly, a judge can sua sponte exclude evidence that falls within those statutory exceptions. In Mendez the Massachusetts Appeals Court found the following facts:
The defendant was in a bar coming on to the victim. By her account the victim rejected his advances. She was drunk and had an unusually strong reaction to the alcohol. Her testimony suggested that perhaps she had been drugged although there was no evidence of that being the case. She woke up in the back of the defendant’s girlfriends’ car. She objected to the defendant and his girlfriend taking her to either of their homes. She next remembered waking up naked and covered in her vomit. She believed that she had been raped. She was bruised. She then saw the defendant’s girlfriend who brought her into the bathroom. She observed a sink full of sexual aids. She showered. The prosecution called the bartender of the bar where the victim was that evening. He testified that that night she was flirtatious, that being her normal behavior. He testified that she made advances towards him and others in the past. She would always ask him to go in the back room with her. She offered him sexual favors. The prosecutor then realized that that evidence should have been excluded. The prosecutor then requested that the defense not mention the evidence further in the trial. Relying on the Rape Shield Statute the judge agreed and the defense was prohibited from mentioning the evidence further.
The Appeals Court agreed with the trial judge finding that in these circumstances the judge may intervene. Even if the judge failed to intervene the order crafted in this case, i.e. the preclusion of further discussion about this testimony was proper.
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Here is the problem with this decision. The evidence came in without objection. As a matter of fact, to some extent the questions of the prosecutor elicited this information from the witness. The evidence was before the jury. It was never stricken. It follows that the attorneys should have been able to argue all relevant inferences that could be drawn from the evidence during summation. Perhaps the Supreme Judicial Court will accept further appellate review of this case and take another view.
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