Reply #128: Rape shields are also discretionary. [View All]

[djg21]

In essence, they allow a court to determine if evidence of sexual history is UNDULY prejudicial, or if the probabtive value of the evidence outweighs the risk of distracting a jury. Here, evidence of the accuser's recent sexual history is clearly probative in that it appears to afford an alternative explanation of the forensic evidence of sexual contact that was recovered from the accuser's person. Moreover, given the latitude afforded to criminal defendants to present their case, I think it unlikely that any court would find this evidence unduly prejudicial.