United States Court of Appeals for the Tenth Circuit
625 F.3d 1285 (10th Cir. 2010)
Jonathan Pablo (defendant) and Isaac Gordo (defendant) were charged with the rape of L.R.H., a teenage girl. L.R.H. claimed that Gordo raped her first, before Pablo raped her. The prosecution presented evidence of L.R.H.’s vaginal injuries, which an expert witness testified were consistent with rape. The defendants sought to introduce evidence that L.R.H. was seen partially undressed earlier in the evening with two other men. The defendants also sought to introduce evidence that earlier on the night in question, at a different location from where the rape occurred, L.R.H. had made sexual advances toward Gordo. The district court excluded each of these proffers of evidence under Federal Rule of Evidence (FRE) 412. The defendants were convicted. Pablo appealed, arguing that (1) the evidence that L.R.H. was seen with other men should have been admitted to prove that one of the other men was the source of L.R.H.’s vaginal injuries, and (2) the exclusion of the evidence of L.R.H.’s sexual advances toward Gordo violated Pablo’s constitutional right to present a defense. Pablo argued that in order to prove that L.R.H. consented to sex with Pablo, he must have the opportunity to first prove that L.R.H. consented to sex with Gordo, because no reasonable jury would conclude that a woman would have consensual sex immediately after being raped by another man.
Rule of Law
Holding and Reasoning (Ebel, J.)
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