“Rule 412 contains four narrow exceptions which might allow receipt of evidence that alleged victim had sexual relations with persons other than the lacrosse players; but, after examining the rule, I doubt that those exceptions would apply in this case. Therefore, Judge Smith, who will try the case, may not allow the jury to hear this evidence – although the evidence clearly should be admissible that the tests revealed no semen from the lacrosse players on the body of the accused…I wonder whether the district attorney violated any constitutional or statutory requirement if he had the laboratory delete from its “reports of test result” those that would be inadmissible at trial but which he fears the defense might use to attack the accuser’s character.”
(b) Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:(1) Was between the complainant and the defendant; or(2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or(3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant's version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or(4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.
(d) Notwithstanding any other provision of law, unless and until the court determines that evidence of sexual behavior is relevant under subdivision (b), no reference to this behavior may be made in the presence of the jury and no evidence of this behavior may be introduced at any time during the trial of:
(1) A charge of rape or a lesser included offense of rape;
(2) A charge of a sex offense or a lesser included offense of a sex offense; or
(3) An offense being tried jointly with a charge of rape or a sex offense, or with a lesser included offense of rape or a sex offense.
Before any questions pertaining to such evidence are asked of any witness, the proponent of such evidence shall first apply to the court for a determination of the relevance of the sexual behavior to which it relates. The proponent of such evidence may make application either prior to trial pursuant to G.S. 15A-952, or during the trial at the time when the proponent desires to introduce such evidence. When application is made, the court shall conduct an in camera hearing, which shall be transcribed, to consider the proponent's offer of proof and the argument of counsel, including any counsel for the complainant, to determine the extent to which such behavior is relevant. In the hearing,the proponent of the evidence shall establish the basis of admissibility of such evidence. Notwithstanding subdivision (b) of Rule 104, if the relevancy of the evidence which the proponent seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the in camera hearing or at a subsequent in camera hearing scheduled for that purpose, shall accept evidence on the issue of whether that condition of fact is fulfilled and shall determine that issue. If the court finds that the evidence is relevant, it shall enter an order stating that the evidence may be admitted and the nature of the questions which will be permitted.
Nowhere in Rule 412 is there a provision for allowing the prosecutor to usurp the role of the court in determining what evidence is admissible and what evidence must be provided to the defendants. It is difficult to understand how the court could rule on the admissibility of evidence hidden from it by a prosecutor. The Supreme Court of Wisconsin appears to agree with our assessment that Everett misconstrues the letter of the statute:
"The State primarily argues that the undisclosed information is not material because it would not have been admissible, as it does not meet the Pulizzano exception to the rape shield law...."We also disagree with the State's argument that this evidence is not material because we determine that the State's nondisclosure of this evidence sufficiently undermines our confidence in the outcome of Harris's criminal proceeding. While the State argues at length that the undisclosed evidence is not material because it does not meet the Pulizzano test, we find this argument to be unpersuasive because the State never afforded Harris the opportunity to bring a Pulizzano motion in the first place. We need not determine whether the five factor Pulizzano test would have been met in this case because even if the test would have been met, the circuit court would still have been obligated to balance Harris's right to present the evidence against the interest of the State in excluding it." State v. Harris