Judge Birmingham and Brian Buckmire Discuss the Kellen Winslow Trial

Kellen Winslow II is accused of 5 counts of sexual assault in California. In this commentary, we discuss:

  1. What do 15 foot jumpers in a basketball game have to do with Reasonable Doubt?
  2. What is a Rape Shield Law?
  3. What role does a sexual assault nurse play in a sexual assault trial?

By Law and Crime Network

If the trial were to be held in Texas, Rule 412 would govern the admissibility of any alleged previous sexual conduct of the victim. The general rule is that it is not admissible – unless one of the exceptions applies, the law does not allow any evidence of the victim’s previous sexual conduct.

Rule 412. Evidence of Previous Sexual Conduct in Criminal Cases

(a) In General. The following evidence is not admissible in a prosecution for sexual assault, aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault:

  1. (1)  reputation or opinion evidence of a victim’s past sexual behavior; or
  2. (2)  specific instances of a victim’s past sexual behavior.

(b)  Exceptions for Specific Instances. Evidence of specific instances of a victim’s past sexual behavior is admissible if:

  1. (1)  the court admits the evidence in accordance with subdivisions (c) and (d);
  2. (2)  the evidence:
    1. (A)  is necessary to rebut or explain scientific or medical evidence offered by the prosecutor;
    2. (B)  concerns past sexual behavior with the defendant and is offered by the defendant to prove consent;
    3. (C)  relates to the victim’s motive or bias;
    4. (D)  is admissible under Rule 609; or
    5. (E)  is constitutionally required to be admitted; and
  3. (3)  the probative value of the evidence outweighs the danger of unfair prejudice.