In criminal cases involving rape or rape-related offenses, if the defendant intends to attack the credibility of the victim with evidence of the victim’s sexual conduct, the defendant must first make a written motion to the court and the prosecutor stating that the defense has an offer of proof concerning the relevancy of evidence of the sexual conduct of the victim which it proposes to present and the relevancy of such evidence in attacking the credibility of the victim. The written motion must be accompanied by an affidavit stating the offer of proof. If the court finds that the offer of proof is sufficient, the court must order a hearing out of the presence of the jury, if any, and at such hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant. If the court concludes that the proposed evidence is relevant and not otherwise inadmissible, the court may issue an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.55 Except as to evidence of the victim’s prior sexual conduct with the defendant, this rule cannot be circumvented by attempting to introduce opinion evidence, reputation evidence or evidence of specific instances of the victim’s sexual conduct.56
If, however, the prosecutor introduces evidence, through the victim or another witness, relating to the victim’s prior sexual conduct, the defendant may then cross-examine the witness who gives such testimony and offer relevant evidence limited specifically to the rebuttal of such evidence introduced by the government.57
The purpose of this rule is to provide a meaningful opportunity to present a defense based on the victim’s credibility while protecting the victim from unnecessary humiliation and embarrassment at trial through marginally probative cross-examination.58
The procedure described above may not be required when the evidence of prior sexual conduct is sought to be introduced for a legitimate reason other than attacking the victim’s credibility, for example, to show the victim’s state of mind. Courts will exercise great caution in evaluating the motive and likely result of the introduction of such evidence. If it appears that the probable impact of the evidence is to attack the credibility of the victim, the trial court, in its discretion, may require the proponent of the evidence to satisfy the requirements described above.58.1
55. 11 Del. C. § 3508(a); Fritzinger v. State, ___ A.2d ___, ___ (Del. 2010); Wright v. State, 513 A.2d 1310, 1314 (Del. 1986).
56. 11 Del. C. § 3509(a), (b).
57. 11 Del. C. § 3509(c).
58. Wright v. State, 513 A.2d 1310, 1314 (Del. 1986).
58.1. Scott v. State, 642 A.2d 767, 771-72 (Del. 1994).
© 2010 David L. Finger