Can You Hear Me?: Court of Appeals of Texas Finds Failure to Hold In Camera Rape Shield Hearing Isn’t Reversible Error

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Similar to its federal counterpart, Texas Rule of Evidence 412(c) provides that if a criminal defendant is trying to present evidence under an exception to the rape shield rule,

the defendant must inform the court out of the hearing of the jury prior to introducing any such evidence or asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible….The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits or refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury.

So, let’s say that the defendant informs the court of his intention to present evidence under an exception to the rape shield rule. And let’s say that the court hears arguments from both sides before deeming the evidence inadmissible but does not hold an in camera hearing. Is this evidentiary error that could form the basis for a new trial? Or is the requirement of an in camera hearing a requirement put in place to protect the alleged victim, meaning that the failure to hold one should not lead to reversal? For the answer, let’s look at the recent opinion of the Court of Appeals of Texas, Houston, in Nevelow v. State, 2011 WL 2899377 (Tex.App.-Houston [14 Dist. 2011]).

In Nevelow, Phillip Andrew Nevelow was charged with sexual assault of a child. Before trial, Nevelow notified the court of his intention to introduce evidence of the alleged victim’s other sexual behavior, and the court subsequently granted the State’s oral motion in limine, which sought to exclude evidence of  “any prior sexual history of the victim.” At trial, before the alleged victim testified, the court re-visited the issue and, after hearing arguments from both sides, upheld its prior ruling. Defense counsel argued that evidence of the alleged victim’s other sexual behavior was admissible based upon the belief that she was using the allegations against Nevelow “to hide who it is that she is actually having sexual relationships with,” but the court found that the evidence was lacking in relevance/probative value.

After he was convicted, Nevelow appealed, claiming, inter alia, that the trial court committed reversible error by failing to hold an in camera hearing to determine the admissibility of evidence of the alleged victim’s other sexual behavior. In addressing this issue, the Court of Appeals of Texas, Houston, held that

The Court of Criminal Appeals has held that abatement is the proper remedy when a trial court’s failure to conduct an in camera hearing prevents the proper presentation of a rule 412 issue to the appellate court. See LaPointe v. State, 255 S.W.3d 513, 520-21 (Tex.Crim.App. 2007)….However, in another case, the court held that a trial court’s failure to conduct a hearing was not material because the record was sufficient to support appellate review of the rule 412 issue. See Young v. State, 547 S.W.2d 23, 25 (Tex.Crim.App. 1977).

Although we conclude the trial court erred by failing to conduct an in camera hearing, we determine the record is sufficient for resolution appellant’s rule 412 issue. Specifically, appellant explained to the trial court several times why the excluded evidence was necessary, made an offer of proof, and attached an affidavit to his motion for new trial in which he averred that the complainant had told him she was sexually active with other individuals. Because we firmly understand the basis for appellant’s presentation of the excluded evidence, we dispose of his rule 412 complaint without a record of an in camera hearing.

I agree with the court’s conclusion, but I’m kind of disturbed by its (lack of) reasoning. The court listed two cases which ostensibly were on point and reached opposite conclusions and then reached a conclusion without addressing the (de)merits of each case. By looking at these 2 cases, though, we can see that there wasn’t actually a conflict.

Despite what the court said, the problem in LaPointe was not that the trial court failed to hold an in camera hearing; instead, the problem was that the court did hold an in camera hearing but excluded the defendant and his attorney from that hearing. The court thus abated the defendant’s appeal and remanded so that an adversarial proceeding could be held based upon its conclusion “that the in camera proceeding contemplated by Rule 412 is an adversarial hearing at which the parties are present and the attorneys are permitted to question witnesses.” On the other hand, Young was what the court said it was: The court didn’t hold an adversarial hearing, but it did hear arguments from the defendant and allowed him, “through a bill of exception, to preserve error on” the admissibility of evidence of other sexual behavior of the victim.

Therefore, there was no conflict between LaPointe and Young, and the court did not need to explain why it was choosing one opinion over the other in reaching its conclusion. And, as I noted above, I think that the court’s conclusion was correct.

Although the court could have been clearer, I think implicit in its analysis is the following dichotomy. Rule 412(c) is partially intended to protect the alleged victim. The requirement of an in camera hearing is designed to protect the alleged victim from harassment and an invasion of privacy. On the other hand, Rule 412(c) is partially designed to protect the defendant. The requirement that the hearing be recorded by the court reporter is designed to ensure that the record is sufficient for appellate review of the rape shield ruling. Thus, when an in camera hearing is not held, but the defendant is allowed to make arguments regarding admissibility and the record is sufficient for appellate review, as in Nevelow, there are not grounds for abatement/reversal.

-Colin Miller

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