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New York Court of Appeals: Forensic Findings Establishing Possible Alternative Cause of Injuries in Sex-Crime Prosecution Admissible Under ‘Interest of Justice’ Exception to Rape Shield Law

by David M. Reutter

The New York Court of Appeals held a trial court erroneously applied New York’s Rape Shield Law to exclude forensic evidence proffered by the defendant to demonstrate that someone else caused the complainant’s injuries.

Sergio Cerda, who was 60 at the relevant time, was charged with two counts of first-degree sexual abuse. The minor complainant alleged that Cerda digitally penetrated her vagina and touched her breasts while he was babysitting her and two younger relatives.

At the start of trial, Cerda moved to admit forensic findings that offered plausible alternative explanations for two small petechia—burst blood vessels—on the complainant’s hymen, as well as a deep hymenal notch. The Nassau County Office of the Medical Examiner also confirmed the presence of the complainant’s saliva on a vulvar swab. An analysis of a saliva mixture taken from a stain on the complainant’s underwear revealed three contributors: the complainant and two unidentified males. Cerda argued this evidence was “consistent with masturbation or sexual contact with a third-party.”

The trial court excluded the evidence under New York’s Rape Shield Law, CPL 60.42, which prohibits the use of evidence regarding the victim’s “unchastity” as probative of consent and recognizes that such evidence is typically of little or no relevance and may seriously prejudice the prosecution of sex crimes. People v. Williams, 614 N.E.2d 730 (N.Y. 1993). The trial court concluded that the theories Cerda advanced were “very speculative,” and the forensic findings risked confusing the jurors.

The jury convicted Cerda on the alleged digital penetration of the complainant’s vagina but acquitted on the other count. Cerda was sentenced to three years’ imprisonment followed by five years of post-release supervision. Cerda timely appealed. The Appellate Division affirmed, and the Court of Appeals granted leave to appeal.

Under CPL 60.42, “[e]vidence of a victim’s sexual conduct” is inadmissible in a prosecution for a sex offense defined in Penal Law article 130, unless one of five enumerated exceptions apply. People v. Scott, 979 N.E.2d 1135 (N.Y. 2012). The first four exceptions “allow evidence of a complainant’s prior sexual conduct in narrowly defined circumstances,” whereas the fifth “is a broader ‘interest of justice’ provision vesting discretion in the trial court.” As such, “[t]he exceptions . . . recognize that circumscribing the ability of the accused to defend against criminal charges remains subject to limitation by constitutional guarantees of due process and the right to confront the prosecution’s witnesses.” See Williams.

Furthermore, under the U.S. Constitution, criminal defendants must be afforded a meaningful opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683 (1986). The defendant’s due process rights include the right to a fair opportunity to defend against the prosecution’s accusations. People v. Deverow, 190 N.E. 3d 1161 (2022). Trial courts must not apply evidentiary rules “mechanistically to defeat the ends of justice.” Id.

The Court concluded error occurred under CPL 60.42(5), i.e., the broad “interest of justice” exception to the Rape Shield Law. Under that subdivision, evidence of a victim’s sexual conduct may be admitted in evidence during a sex crime prosecution when it “is determined by the [trial] court after an offer of proof by the accused … to be relevant and admissible in the interests of justice.”

“As for the relevance of the forensic findings,” the Court said, “evidence is relevant ‘if it tends to prove the existence or non-existence of a material fact, i.e., a fact directly at issue in the case.” See People v. Primo, 753 N.E.2d 164 (N.Y. 2001). The Court explained that “in the interests of Justice, evidence of a complainant’s sexual conduct may be admissible in a sex crime prosecution if it is relevant to the defense.” See People v. Scott,949 N.E.2d 475 (N.Y. 2011).

Turning to the present case, the Court stated that “the prosecution attributed the complainant’s petechial injuries to defendant and had an expert testify that such injuries were consistent with the criminal conduct of the accused.” Consequently, forensic evidence that could provide a plausible alternative for the injuries were certainly relevant to defend against the prosecution’s theory, according to the Court. The Court also noted that the DNA evidence from the forensic analysis identified two male contributors. While the findings were inconclusive and Cerda could not be ruled out as a contributor, that evidence draws inferences for the jury to resolve, not the trial court by excluding the evidence.

Thus, the Court ruled that the trial court’s exclusion of the forensic evidence “deprived defendant of a meaningful opportunity to present a complete defense,” Crane, and constituted an abuse of discretion as a matter of law under CPL 60.42(5).

Accordingly, the Court reversed the Appellate Division and ordered a new trial. See: People v. Cerda,2023 N.Y. LEXIS 1758 (2023).  

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