State v. Jensen
v.
LeMoyne Jensen a/k/a
Lee Jensen, Defendant and Appellant
Judge Debbie Gordon Kleven
| Appellant: | Faye A. Jasmer | |
| Appellee: | Marina Spahr , State's Attorney |
I. Whether Defendant was denied his Sixth Amendment right to confrontation when the trial court refused to allow Defendant to cross-examine the alleged victim concerning instances of prior sexual conduct between the victim and Defendant based on Defendant's failure to follow the procedural requirements of Evidence Rule 412, even though the trial court indicated prior to the start of trial that it would wait until the prosecution's evidence was presented before it ruled on admissibility of the scope of cross-examination and the prosecution presented evidence to the jury of past sexual conduct between the alleged victim and Defendant by eliciting testimony from the alleged victim concerning these incidents of past sexual conduct?
II. Whether Defendant was denied his Fourteenth Amendment Right against deprivation of liberty without due process of law when the trial court refused to allow Defendant to provide his own testimony as well as the testimony of a corroborating witness concerning instances of prior sexual conduct between Defendant and the alleged victim after the prosecution presented evidence raising the issue of consent?
III. Whether the denial by the trial court of Defendant's right to confrontation and his right to due process constituted reversible error when subjected to a test of heightened scrutiny as required by the Supreme Court in Chapman v. California and analyzed under the factors of Delaware v. Van Arsdall?
Appellee's Statement of the Issues:
I. The trial court's exclusion of evidence does not violate the defendant's sixth amendment rights when defendant did not comply with rule 412(C), N.D.R.Evid.
II. The prosecution did not open the door to cross-examination and testimony concerning past sexual behavior of the victim during direct examination of the victim or during opening and closing arguments.
A. The Statements Made By The Prosecutor And Victim Were Not Evidence Restricted By Rule 412, N.D.R.Evid.
B. The Case Law Does Not Support Defendant's Argument That The Prosecutor Made Statements Or Elicited Testimony That Opened The Door And Violated Defendant's Constitutional Right To Confrontation.
III. Defendant was not denied fourteenth amendment rights when the trial court refused to allow him to provide evidence concerning past sexual conduct with the victim after the prosecution presented evidence raising the issue of consent.
IV. If the exclusion of evidence by the trial court violates defendant's sixth or fourteenth amendment rights that error is harmless error.
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