State of New York                                                       OPINION
Court of Appeals                                         This opinion is uncorrected and subject to revision
                                                           before publication in the New York Reports.




 No. 69
 The People &c.,
         Respondent,
      v.
 Sergio Cerda,
         Appellant.




 Donna Aldea, for appellant.
 Donald Berk, for respondent.




 LYNCH, J.:

       On this appeal, the Court is tasked with determining whether the trial court erred in

 applying New York’s Rape Shield Law (see CPL 60.42) to exclude forensic evidence

 proffered by defendant to demonstrate that someone else caused the complainant’s injuries.

 We answer that question in the affirmative and conclude that, under the facts of this case,


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                                            -2-                                       No. 69

the trial court’s erroneous application of the Rape Shield Law deprived defendant of his

constitutional right to present a defense. Accordingly, we reverse and order a new trial.

                                              I.

       Defendant was charged with two counts of first degree sexual abuse arising from

allegations that he digitally penetrated his minor relative’s vagina and touched her breasts.

The prosecution’s theory was that defendant, then over 60 years old, committed the crime

when he was babysitting the complainant and two other younger relatives.

       According to the evidence at trial, one evening when these children were under his

care, defendant was sitting next to the complainant on a couch where they were watching

television with blankets draped over their laps. The complainant testified that defendant

got under the blanket she was using, raised her right leg to her chest, rolled the bottom part

of her pants leg up to her thigh, slid his hand underneath the rolled-up portion, and placed

a finger into her vagina, forcefully moving it in and out. The complainant also alleged that

defendant fondled her breasts. Thereafter, the complainant went to the bathroom, locked

the door, and texted her mother to come home, revealing that defendant had touched her

inappropriately.

       Defendant took the stand at trial and denied the allegations, recounting that the

complainant was angry at him for speaking ill of her father. Defendant testified that, after

realizing that the complainant had remained in the bathroom, he went to check on her and

she complained of a stomachache. The complainant’s relative was asked whether she saw

“anything at all unusual happen while [she] w[as] sitting on the couch,” and she answered

in the negative, adding that defendant’s hands were over the blanket. She was specifically

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                                            -3-                                      No. 69

asked whether she saw defendant touch the complainant and stated, “[t]o joke around with

her, yes.” A picture of the underwear complainant was wearing that evening was entered

into evidence and showed a large, dark colored, stain in the crotch area.

       The complainant underwent a sexual assault examination in the hours after the

alleged crime. The prosecution introduced the medical records from this examination into

evidence, which revealed at least two small petechiae – i.e., “burst blood vessel[s]” – on

the complainant’s hymen, as well as a deep hymenal notch. Swabs of the complainant’s

vulva and vagina were also taken. A forensic examination of the evidence performed by

the Nassau County Office of the Medical Examiner confirmed the presence of the

complainant’s saliva on the vulvar swab. An analysis of a saliva mixture taken from a stain

on the complainant’s underwear revealed three contributors: the complainant and two

unidentified males. The vaginal swab revealed prostate specific antigen, which is an

element of semen but can also be found in a number of bodily fluids. No spermatozoa

were present in the vaginal swab and, thus, the presence of semen was not confirmed.

       At the start of the trial, defendant moved in limine for a ruling on the admissibility

of the forensic reports. Defense counsel argued that the forensic reports were not the type

of evidence barred by CPL 60.42 because the forensic findings offered plausible alternative

explanations for the petechiae the prosecution was seeking to attribute to him, indicating

that they were consistent with masturbation or sexual contact with a third-party. Defendant

maintained that “to exclude [the forensic reports] would curtail [his] ability to offer a

sufficient and adequate defense.” The prosecution opposed defendant’s motion, arguing

that the reports were inadmissible because the forensic findings implied that the

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                                            -4-                                       No. 69

complainant “had sex or oral sex with somebody . . . earlier” and, thus, that she was

“promiscuous[.]” The trial court denied defendant’s motion and excluded the evidence

under CPL 60.42, concluding that the theories advanced by defense counsel were “very

speculative” and the forensic findings risked “confus[ing] the jurors.”

       At trial, the prosecution presented the testimony of a pediatrician specializing in

evaluating victims of sex abuse to establish that the petechiae on the complainant's hymen

were consistent with digital penetration. In that respect, the expert confirmed that petechiae

result from “pressure or force[,]” and that their presence on the hymen is an abnormal

finding indicative of an “injury.” Although the expert had “never seen petechiae during a

normal genital exam,” explaining that they were unlikely to result from masturbation or

accidental injury, he conceded on cross-examination that intense vaginal rubbing or

scratching with a lot of pressure could, in theory, cause petechiae to form. When asked

whether petechiae “can be visualized inside the vagina and not have anything to do with

sexual abuse,” the expert clarified that he had “only seen it in the context of penetration,

. . . be that sexual abuse or sex.” As for the deep hymenal notch, the expert noted that it

was “highly concerning” for a penetration injury; however, because he could not determine

that the notch went to the base of the hymen, he could not rule out that the notch was a

normal part of the complainant’s anatomy.

       In his opening statement, defense counsel commented that the jury would hear

medical evidence from the complainant’s sexual assault examination, but that such

evidence was “scant” and “suggestive of a number of other types of activity or behavior

that are completely innocent [and] that have nothing to do with [defendant] or the

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allegations that were made that night.” Defense counsel reiterated this theme on

summation, suggesting that the petechiae resulted from self-inflicted forcible “rubbing or

scratching” due to irritation relating to fecal matter on the complainant’s underwear. In

her summation, the prosecutor stated that there was “nothing in the medical record to

support” the contention that the complainant injured herself, emphasizing that such

evidence “doesn’t exist” and that “it didn't happen.” The jury convicted defendant of the

sexual abuse charge related to the alleged digital penetration of the complainant’s vagina,

but acquitted defendant of the other count. The court sentenced defendant to three years

of imprisonment followed by five years of postrelease supervision.

       On appeal, the Appellate Division affirmed the judgment, rejecting defendant’s

argument that the trial court improperly excluded the forensic evidence under CPL 60.42

and concluding that defendant “was given ample opportunity to develop evidence at trial

to support his defenses” (

, 1042 [2d Dept 2021]). The Appellate Division

held that defendant’s additional contentions were without merit. A Judge of this Court

granted defendant leave to appeal (

 [2021]).1

                                            II.

       Under CPL 60.42, “[e]vidence of a victim's sexual conduct” is inadmissible in a

prosecution for a sex offense defined in Penal Law article 130 unless one of five

enumerated exceptions applies (see People v Halter, 

 [2012]; People



        1
          The Court heard oral argument on the appeal on May 19, 2022 and later
ordered reargument (

 [2022]), which was held on September 14, 2023.

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                                             -6-                                       No. 69

v Scott, 

 [2011]; People v Williams, 

 [1993];

People v Mandel, 

 [1979], appeal dismissed and cert denied 

[1980]). In enacting CPL 60.42, the legislature was concerned that “testimony about the

sexual past of the victims of sex crimes often serves solely to harass the victim and confuse

the jurors” (Williams, 

 [citations omitted]). Accordingly, CPL 60.42 “put

to rest the now-discredited rationale that a victim’s past ‘unchastity’ is probative of present

consent and recognized that such evidence is typically of little or no relevance and may

seriously prejudice the prosecution of sex crimes” (id. [citations omitted]).2

       At the same time, “the Constitution guarantees criminal defendants a meaningful

opportunity to present a complete defense” (Crane v Kentucky, 

 [1986]

[internal quotation marks and citations omitted]; see Chambers v Mississippi, 

 [1973] [“The right of an accused in a criminal trial to due process is, in essence, the

right to a fair opportunity to defend against the State’s accusations”]; People v Deverow,

, 164 [2022]; People v Boyd, 

 [2018]; People v Spencer,

 [2012]). This right “does not give criminal defendants carte blanche to

circumvent the rules of evidence” (Deverow, 38 NY3d at 164 [internal quotation marks

and citation omitted]; see People v Jin Cheng Lin, 

 [2016]).

Nevertheless, “a trial court must not apply [evidentiary] rules mechanistically to defeat the

ends of justice” (Deverow, 38 NY3d at 164 [internal quotation marks omitted], citing



        2
           Although consent is not at issue in this case since the complainant was below
the age of consent, the issue of witness credibility is directly implicated.

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                                               -7-                                    No. 69

Chambers, 

). Consequently, “[a] blanket exclusion [under CPL 60.42] which

covered clearly relevant sexual conduct evidence would unduly circumscribe a

defendant’s” constitutional right in this regard (People Jovanovic, 

 [1st

Dept 1999] [emphasis in original], appeal dismissed 

 [2000]).

       Recognizing as much, the legislature enumerated five exceptions to CPL 60.42’s

evidentiary proscriptions. The first four exceptions “allow evidence of a complainant’s

prior sexual conduct in narrowly defined factual circumstances,” whereas the fifth “is a

broader ‘interest of justice’ provision vesting discretion in the trial court” (Williams, 

). “The exceptions . . . recognize that any law circumscribing the ability of

the accused to defend against criminal charges remains subject to limitation by

constitutional guarantees of due process and the right to confront the prosecution’s

witnesses” (id. at 312 [citations omitted]).

                                               III.

       Defendant argues that the forensic evidence was admissible under several of the

exceptions set forth in CPL 60.42. We need not address every basis raised because we

conclude that the trial court erred in denying admission of the evidence under CPL 60.42

(5). Under this subdivision, evidence of a victim’s sexual conduct may be admitted in

evidence during a sex crime prosecution when it “is determined by the [trial] court after an

offer of proof by the accused . . . to be relevant and admissible in the interests of justice”

(CPL 60.42 [5]). “Offer of proof is not a term of art but its generally accepted meaning

. . . is to summarize the substance or content of the evidence” (Williams, 

[internal quotation marks and citation omitted]). In his motion in limine, defense counsel

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                                            -8-                                       No. 69

delineated the findings contained in the forensic reports and explained how they constituted

“evidence of something other than . . . defendant having engaged in inappropriate and

unlawful sexual activity with [the complainant].” This was a sufficient offer of proof under

Williams (

).

       As for the relevance of the forensic findings, evidence is relevant “if it tends to

prove the existence or non-existence of a material fact, i.e., a fact directly at issue in the

case” (People v Primo, 

 [2001]; see People v Frumusa, 

 [2017], rearg denied 

 [2017]). “We recognize that, ‘in the interests of

justice,’ evidence of a complainant’s sexual conduct may be admissible [in a sex crime

prosecution] if it is relevant to a defense” (Scott, 

, citing Jovanovic, 

). In People v Scott, this Court considered whether, in a prosecution for both

forcible and statutory rape, evidence of a complainant’s sexual conduct with another

individual at the same party at which the defendant was alleged to have raped the

complainant should have been admitted under CPL 60.42 (5). The Court answered that

question in the negative, but agreed with the trial court that “the complainant’s sexual

conduct [on the evening in question] would be relevant to [defendant’s] defense if the

People introduced evidence of her bruising caused by sexual contact and attributed such

evidence to [the defendant],” ultimately noting that the People did not offer any such

evidence of bruising in that case (Scott, 

 [emphasis added]). Here, by

comparison, the prosecution attributed the complainant’s petechial injuries to defendant

and had an expert testify that such injuries were consistent with the criminal conduct of

which he was accused. Thus, the forensic reports, which contained findings that offered

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                                           -9-                                       No. 69

plausible alternative explanations for the petechial injuries, were relevant to defending

against that theory (see Scott, 

; Mem of Assemblyman Fink, 1975 NY Legis

Ann, at 48 [Under CPL 60.42, “(r)ebuttal of the (P)eople’s evidence that . . . the accused

was the cause of pregnancy, injury, or disease of the victim” is allowed]). Although trial

courts may, of course, “exclude relevant evidence if its probative value is outweighed by

the prospect of . . . undue prejudice to the opposing party, confusing the issues or

misleading the jury” (Primo, 

), the evidence here – consisting of forensic

findings – should have been admitted because it directly responded to the prosecutor’s

theory that defendant alone caused the complainant’s injuries.

       The constitutional right to present a defense encompasses “the right to put before a

jury evidence that might influence the determination of guilt” (Taylor v Illinois, 

 [1988] [internal quotation marks and citations omitted]; accord Jovanovic, 

). Defendant’s entire defense was premised upon demonstrating that the

complainant’s allegations against him were untrue in that the petechial bruising was caused

by her own actions or a third-party. The forensic evidence confirming the presence of the

complainant's saliva in the vicinity of her internal injuries, juxtaposed against the expert

testimony that such injuries were consistent with digital penetration, speaks to an

alternative, innocent explanation for the cause of the identified injuries and bears on the

issue of guilt or innocence. The same may be said, albeit to a lesser extent, as to the

detection of the male DNA in the mixed saliva sample and prostate specific antigen in the

vicinity of the complainant’s injuries. We are mindful that the laboratory reports did not

exclude defendant as a contributor to the male DNA detected from the complainant’s

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                                            - 10 -                                    No. 69

underwear and that no further comparisons could be made from the mixed saliva sample.

At the same time, the reports did identify two male contributors. Although the prosecution

maintains that the forensic findings are inconclusive, far from exculpatory, and create more

questions than they answer, the inferences to be drawn from the findings present an issue

of weight for the jury to assess, not admissibility (see People v Wesley, 

[1994]; People v Dackowski, 

 [1980]; People v White, 

 [1976]). The dissent also deems defendant’s offer of proof to be inconclusive, but

it is neither the role of the trial court nor this Court to make that assessment. There is a

difference between determining whether evidence is relevant for purposes of applying the

CPL 60.42 (5) exception, and whether that same evidence is decisive or not. Relevance is

for the court to determine, decisiveness for the jury. As difficult and traumatic as child sex

abuse cases are, the operative point is that the proffered evidence is medical documentation

in support of defendant’s alternative theory for complainant’s injuries. By pursuing this

defense, defendant did not seek to use the forensic evidence in violation of the statute, to

impugn complainant’s character by presenting her as a promiscuous female who could not

be believed – a tactical attack based on now-rejected views of female sexuality.

       As for the Appellate Division's conclusion that defendant “was given ample

opportunity to develop evidence at trial to support his defenses” (192 AD3d at 1042), it is

true that the trial court did allow defendant to introduce the photograph of complainant’s

underwear and argue that she injured herself by rubbing her vaginal area in response to

irritation related to the stain depicted therein. However, such evidence is no substitute for

an argument premised on the forensic analysis performed. By permitting defense counsel

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to suggest to the jury that there were alternative innocent explanations for the petechiae,

yet excluding the most viable evidence to support that premise, the trial court’s ruling

deflated the strength of the defense (see People v Diaz, 

 [2013]; People

v Labenski, 

 [4th Dept 1987]; see also People v Wright, 

 [2015]; People v Becoats, 

 [2011], cert denied 

[2012]). The prejudice to defendant was compounded when the prosecutor emphasized to

the jury on summation that evidence of such alternative theories “doesn't exist,” despite

knowing full well the findings in the precluded forensic reports.

       We conclude that the trial court’s exclusion of the forensic evidence “deprived

defendant of a meaningful opportunity to present a complete defense” (Deverow, 38 NY3d

at 168 [internal quotation marks omitted], citing Crane, 

) and constituted an

abuse of discretion as a matter of law under CPL 60.42 (5). Because the error cannot be

considered harmless under the facts presented (see Deverow, 38 NY3d at 168; People v

DiPippo, 

 [2016]), a new trial is warranted.             Far from being a

“degradation of the protections afforded by the Rape Shield Law” as the dissent

unfortunately asserts (see dissenting op at 2), our decision to apply the statutory exception

is compelled by the nature of the evidence presented and the fair trial tenets of the

Constitution. Our determination renders academic defendant’s remaining contentions.

       Accordingly, the order of the Appellate Division should be reversed and a new trial

ordered.




                                           - 11 -
CANNATARO, J. (dissenting):

      The child victim in this case alleged that she was sexually abused by defendant, an

older relative. She immediately reported the incident to her mother, who took her to the

hospital where she underwent a number of invasive medical examinations. At trial,

defendant sought to introduce into evidence inconclusive DNA and serology reports from



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                                              -2-                                        No. 69

these examinations, arguing that the interests-of-justice exception to the Rape Shield Law

applied (CPL 60.42 [5]). The trial judge denied the application and excluded the evidence.

       Because these reports provided only the slightest basis for defendant to suggest that

the child had engaged in sexual activity—either with another individual or herself—the

trial court saw fit to exclude this evidence under the Rape Shield Law. Indeed, the Rape

Shield Law was designed to protect victims from this very type of evidence. Yet today,

the majority misapplies an exception to the Rape Shield Law and orders a new trial, where

the victim will be faced with the defense’s suggestion that, sometime before this incident

that occurred when she was 11 years old, she must have either engaged in sexual contact

with an unidentifiable man or injured herself through vigorous masturbation.                This

degradation of the protections afforded by the Rape Shield Law, not to mention the trauma

inflicted on this victim, is completely unwarranted. I dissent.

       Forcing a child to testify at trial to the details of sexual abuse by a trusted individual

in their life invariably risks retraumatizing them. And given the unique challenges in

bringing these cases to trial, it should come as no surprise that, in some offices, prosecutors

decline to prosecute roughly half of all reported cases of child sexual abuse (see Theodore

P. Cross et al., Prosecution of child abuse: A meta-analysis of rates of criminal justice

decisions, Trauma, Violence & Abuse, 4(4), 323-340 [2003]; see also Linda M. Williams,

et al., Prosecution of Child Sexual Abuse: Challenges in Achieving Justice, Wellesley, MA:

Wellesley Centers for Women [April 2022] https://www.wcwonline.org/images/pdf/2022-

williams-block-pcsa-white-paper.pdf [last accessed October 12, 2023]). Historically, less



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                                              -3-                                         No. 69

than 10% of reported allegations of child sex abuse have gone to trial (see Ellen Gray,

Unequal justice: The prosecution of child sexual abuse [Free Press 1993]).

       The Rape Shield Law provides some protection for these victims. Under that

statute, CPL 60.42, evidence of a victim’s sexual conduct is generally inadmissible in a

prosecution for a sex offense. The law was enacted in response to concerns that “the

manner in which rape trials [were then] conducted serves to discourage prosecutions,

demean complainants, and lead to acquittals of guilty defendants,” and was designed to

achieve “two desirable objectives: [i]t removes from the trial of an alleged rapist the mini-

trial of his alleged victim; and equally if not more important, it should encourage rape

victims to cooperate wholeheartedly in the search for and prosecution of their attackers”

(Bill Jacket, L 1975, ch 230). We have previously explained that the statute acknowledges

that evidence of a victim’s past sexual conduct is typically irrelevant to issues of consent

or credibility and, instead, “often serves solely to harass the victim and confuse the jurors”

(People v Williams, 

 [1993]).

       The statute expressly contemplates that there are “instances where evidence of a

complainant’s sexual history might be relevant and admissible” (id.) and has set forth

specific exceptions. The statute allows a trial court to admit such evidence where it “is

determined by the court after an offer of proof by the accused outside the hearing of the

jury, or such hearing as the court may require, and a statement by the court of its findings

of fact essential to its determination, to be relevant and admissible in the interests of justice”

(CPL 60.42 [5]). Importantly, although the constitution requires that criminal defendants

must have “‘a meaningful opportunity to present a complete defense’” (Holmes v South

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                                             -4-                                       No. 69

Carolina, 

 [2006], quoting Crane v Kentucky, 

 [1986]),

that right is not absolute. Rather, “well-established rules of evidence permit trial judges to

exclude evidence if its probative value is outweighed by certain other factors such as unfair

prejudice, confusion of the issues, or potential to mislead the jury” (Holmes, 

; see also Montana v Egelhoff, 

 [1996]; Michigan v Lucas, 

 [1991]). Stated otherwise, “[e]vidence ‘of merely slight, remote or conjectural

significance’ will ordinarily be insufficiently probative to outweigh the[] countervailing

risks” (People v Primo, 

 [2001] [citations omitted]).

       While DNA evidence and other forensic scientific testing techniques offer the

possibility of greater objectivity and certainty in these difficult cases, there are times when

the results of the analysis of such evidence are so inconclusive as to have little or no

probative value. This is such a case.

       The laboratory report that defendant sought to introduce explained that the Nassau

County Office of the Medical Examiner conducted autosomal STR DNA typing on a saliva

stain from the victim’s underwear and found a mixture of DNA from three contributors,

including the victim. The laboratory then performed Y-STR DNA typing (to isolate male

DNA) on the saliva stain and issued a follow-up laboratory report indicating two male

contributors to the DNA mixture. The report explained that “[b]ased on the mixture ratio,

no comparisons can be made.” As further explained in the report, where “a statistical

qualification [can]not be made due to the mixture ratio . . . the results are considered not

suitable for comparisons and no comparisons (inclusions or exclusions) can be made.”



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                                            -5-                                      No. 69

       At the start of the trial, defense counsel sought a ruling permitting admission of the

DNA and serology reports into evidence.           After acknowledging that the Medical

Examiner’s Office represented that no further testing could be done to determine the

identity of the unknown male contributors, defense counsel noted that defendant had

offered to provide a sample of his DNA for comparison. Counsel then stated their intention

“to use an expert, presumably the[ People’s] witness, to testify about . . . those findings

within the underwear as well as the meaning or potential meaning of those findings within

the underwear.” Defendant argued that the Rape Shield Law was inapplicable to this

evidence but that, in any event, the evidence was admissible under the statutory interests-

of-justice exception, as it was exculpatory. The People opposed the application, noting

that they would not be introducing any DNA evidence on their case-in-chief, that the

inconclusive DNA results would be confusing to the jury and that the reports should be

precluded under the Rape Shield Law.

       The court applied the Rape Shield Law and excluded the DNA and serology reports,

observing that, although male DNA was present in the saliva sample, “the relevance of that

is very speculative.”* The court found that the proffered evidence was “going to confuse

the jurors” as they might conclude that “the victim in this case did have sexual contact or

conduct with another individual . . . [which is] exactly what the rape shield law is designed

to prevent.”




*
 The court also characterized the presumptive presence of semen based on the detection
of prostate specific antigen on the victim’s vaginal swabs as “far from conclusive.”
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                                              -6-                                        No. 69

       It was well within the trial court’s discretion to determine that the laboratory reports

should be excluded under CPL 60.42 (5) because they would have caused juror confusion

and speculation, particularly as to possible sexual activity by the child victim about which

there was no record evidence. “Under the abuse of discretion standard, ‘[w]e are not free

to substitute our judgment for that of the . . . court [of first instance] when conflicting facts

and inferences reasonably support a decision for or against a certain result.’ Instead, the

question is whether ‘the case presented shows no room for the exercise of reasonable

discretion’” (People v Cook, 

, 423 [2019], quoting People v Branch, 

 [1994]). As noted above, defendant’s initial application to the trial court was that

he wanted an unidentified expert witness to testify to “the meaning or potential meaning

of” the laboratory test results on the basis that they were potentially exculpatory. His “offer

of proof” was the test results themselves—evidence that is properly characterized as

inconclusive. Moreover, defendant did not employ an expert who could attach significance

to the laboratory’s findings by explaining or interpreting the significance of the results of

the forensic testing that would have provided the jury with a nonspeculative basis upon

which to rest an alternative explanation for the victim’s injury. Instead, the defense

contemplated using the People’s witness to explain the DNA results—despite the fact that

the People had no intention of either introducing the test results or calling any witness from

the Medical Examiner’s Office to testify at trial. In light of the above, the unexplained

forensic report did not offer “plausible alternative explanations” for the victim’s injuries

(see majority op. at 9).



                                              -6-
                                            -7-                                      No. 69

       Although People v Scott contemplates that evidence of other sexual conduct would

be “relevant” to counter evidence of injury introduced by the People and attributed to

defendant (

 [2011]), that is not the case here because the laboratory

reports do not establish that other sexual conduct occurred. Moreover, the laboratory

reports did not exclude defendant as a contributor of the male DNA and, therefore, the

reports neither exculpate defendant nor inculpate any other individual. As to the presence

of the victim’s own saliva, defendant’s contention that she caused her own injuries is

conjectural at best, and defendant was permitted to argue this theory to the jury. Lastly,

the language in Scott relied on by the majority went only to relevancy—the evidence of

other sexual activity would have been relevant if the People introduced evidence of

bruising—not whether the trial court would have abused its discretion if it nevertheless

declined to admit that proof (see 

).

       Under these circumstances, admission of the reports would not tend to establish a

defense to the crime. Moreover, whatever limited relevancy the reports might have had, I

cannot conclude that it was an abuse of discretion as a matter of law for the trial court to

exclude this evidence under the Rape Shield Law.

       While the majority insists that defendant has not sought to “impugn complainant’s

character” (majority op. at 10), the record and defendant’s litigation strategy throughout

this case demonstrates the opposite. Indeed, the thrust of the litigation strategy, continued

in the briefing to this Court, was that the People’s depiction of the victim as innocent and

naive was false and misleading—in fact, appellate counsel described the theory of the

defense as asserting that the victim “was a sexually experienced young girl” (Tr. of Oral

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                                           -8-                                      No. 69

Arg. at 24:24 [May 19, 2022]). Nonetheless, the majority now holds that the Rape Shield

Law does not apply, that defendant was deprived of the right to present a full defense, and

that introduction of an inconclusive, confusing, and speculative forensic report was

required. Because admission of the forensic report would have inflicted the precise harm

that the Rape Shield Law was designed to prevent—it would have served “solely to harass

the victim and confuse the jurors” (Williams, 

)—I would find that the trial

court’s preclusion of the reports was an appropriate exercise of discretion under well-

established evidentiary rules.



Order reversed and a new trial ordered. Opinion by Judge Lynch. Chief Judge Wilson and
Judges Rivera, Troutman and Halligan concur. Judge Cannataro dissents and votes to
affirm in an opinion, in which Judge Garcia concurs. Judge Singas took no part.


Decided October 19, 2023




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