State v. Colburn, 2016 MT 41 (Feb. 23, 2016) (McGrath, C.J.; McKinnon, J., concurring) (7-0, rev’d & remanded)
Issue: (1) Whether the district court erred in disqualifying Colburn’s expert witness from testifying at trial; and (2) whether the district court erred in its application of the Rape Shield law to exclude evidence Colburn offered at trial.
Short Answer: (1) Yes; and (2) yes.
Reversed and remanded for a new trial
Facts: The state charged Colburn with two counts of incest involving his daughter, CC, one count of sexual intercourse without consent and two counts of sexual assault involving a neighbor girl, RW, all felonies. Both girls were 11 years old at the time of the offenses. RW testified at trial that Colburn touched her private parts manually and with his penis. CC testified and denied generally that Colburn had done anything wrong to her.
The state called Nurse Practitioner Mary Hansen, who has received training in sexual assault examinations and forensic interviews. Hansen interviewed RW and CC, both of whom described sexual abuse by Colburn. The prosecution played a video of Hansen’s interview with CC, which was the primary direct evidence supporting the incest charges.
Before trial, Colburn disclosed that he intended to call Dr. Donna Zook as an expert in child psychology and forensic interviewing to critique Hansen’s interviews. The state objected to Zook’s qualifications, and the district court determined that the NICHD interviewing technique was the “gold standard,” and that because Zook lacked specific training in that specific interviewing protocol, she was not qualified to testify.
Colburn sought to introduce evidence that RW had a motive to fabricate allegations against him, and that there was an alternative source for her knowledge about the details of sexual behavior other than anything he had done. Specifically, the defense theory was that RW had been abused by her father, and that claiming Colburn had abused her allowed RW to determine whether her mother would believe her. (In fact, the record shows – but the jury was not told — that RW’s father was charged with five counts of incest and eventually pled guilty to sexual assault.) The district court excluded any evidence that RW had any sexual encounter with another person based on the Montana Rape Shield Law. § 45-5-511(2), MCA.
Procedural Posture & Holding: A jury convicted Colburn of all offenses in October 2013. In February 2014 the district court sentenced Colburn. Colburn appeals and the Supreme Court reverses.
Reasoning: (1) Hansen never mentioned the NICHD protocol in her testimony, and did not testify that she used that protocol in interviewing either RW or CC.
“It is clear to this Court that Zook was qualified by both education and experience to provide a critique of Hansen’s interviewing technique as it related to leading or suggestive questions and the effect that such questions could have on the results.” ¶ 18. The district court abused its discretion in excluding Zook’s testimony from trial.
(2) “Rape shield laws generally protect victims from being exposed at trial to harassing or irrelevant questions concerning their past sexual behavior.” ¶ 22. At the same time, defendants have a constitutional right under the Sixth Amendment to confront their accusers and present evidence at trial in defense of the charges against them. It is the trial court’s responsibility to balance the competing rights by requiring the defendant’s proffered evidence of other sexual acts to be not merely speculative or unsupported. Here the proffered evidence was neither, given that he was convicted of sexual assault against his daughter. The court should consider whether the evidence is relevant and probative, whether it is merely cumulative of other admissible evidence, and whether the probative value is outweighed by its prejudicial effect. “The district court abused its discretion by mechanistically applying the Rape Shield Law to exclude Colburn’s proffered evidence.”
Justice McKinnon’s Concurrence: Justice McKinnon reviews the facts and law in more detail than the majority does and concurs with the majority’s opinion.