First, how did the court receive the juror’s affidavit? NRS 50.065(2) provides that “Upon an inquiry into the validity of a verdict or indictment:

(a) A juror shall not testify concerning the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith.

(b) The affidavit or evidence of any statement by a juror indicating an effect of this kind is inadmissible for any purpose.”

It seems to me that the affidavit should have been excluded under this anti-jury impeachment rule.

Second, it looks like the Supreme Court of Nevada found in Summitt that the defendant should be able to present his evidence pursuant to the right to present a defense, i.e., on Constitutional grounds and not solely on evidentiary grounds. That is interesting because the majority in Molen (1) adopted the sexual innocence inference theory but (2) found that it was inapplicable in the case before it and (3) found that the non-application of this inference in the case before it did not violate Molen’s right to present a defense.

Meanwhile, in his special concurrence, Judge Gratton (1) rejected the sexual innocence inference theory and (2) found that the only way that courts should admit evidence like the evidence that Molen wanted to present would be on Constitutional (right to present a defense) grounds and not solely on evidentiary grounds. I’m a big proponent of the right to present a defense (indeed, I argued in a recent article that it should apply in cases of juror racial or other prejudice to invalidate anti-jury impeachment rules like the one cited above) and would advocate Judge Gratton’s view over the majority view.

Third, the complainant in Summitt was six years old while the complainant in Molen was eight or nine years old. I wonder if we would expect this age difference to make a difference? I also wonder whether we would expect children to know more about sex in 2010 than we expected them to know in 1985?

To me, these are all fascinating questions, and the case you cited provides some anecdotal evidence of the sexual innocence inference theory. It seems to me that based upon the majority of courts adopting that theory that the time has come for a broad study to determine whether and/or to what extent that theory is borne out.

Take a look at Summitt v. State, 101 Nev. 159, 697 P.2d 1374 (1985), footnote 4: “In the affidavit supporting appellant-defendant‘s motion for a new trial in the proceedings below, it was asserted that Juror No. 1, Richard L. Linton, after the verdict was rendered, stated to both counsel for the state and the appellant that during the jury‘s deliberations ‘the question was posed among the jurors why a girl of such a young age would know of such sexual acts unless they had, in fact, occurred as alleged.’”

Now you have seen what you “have never seen.”‖