State v. Brown

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE FILED

January 24, 2000

STATE OF TENNESSEE, Cecil Crowson, Jr.

) Appellate Court Clerk

FOR PUBLICATION

)

Appellee, ) FILED: JANUARY 24, 2000

)

v. ) KNOX COUNTY

)

HOWARD BROWN, ) HON. RAY L. JENKINS, JUDGE

)

Appellant. ) NO. E1995-00017-SC-R11-CD

For Appellant: For Appellee:

SUSAN E. SHIPLEY JOHN KNOX WALKUP

Knoxville, TN Attorney General and Reporter

MICHAEL E. MOORE

Solicitor General

TODD R. KELLEY

Assistant Attorney General

Nashville, TN

RANDALL E. NICHOLS

District Attorney General

CHARME P. JOHNSON KNIGHT

Asst. District Attorney General

GREG HARRISON

Asst. District Attorney General

Knoxville, TN

OPINION

REVERSED AND REMANDED BIRCH, J.

The issue here presented is whether the trial court

correctly applied the rape shield rule1 in excluding testimony

1

Tenn. R. Evid. 412.

about a rape complainant’s prior sexual behavior with a person

other than the defendant. The trial court excluded the proffered

evidence upon a finding that the defendant did not describe the

evidence in detail sufficient to satisfy the requirement of Tenn.

R. Evid. 412(d)(1)(iii).2 In contrast, the Court of Criminal

Appeals found no issue in the application of Rule 412(d)(1)(iii);

however, it held that the proffered evidence was properly excluded

because it constituted inadmissible hearsay.

We accepted review to address and clarify the overlapping

application of the rape shield rule, the rule against hearsay,3 and

the defendant’s constitutional right to present a defense.

We conclude that the proffered evidence was proper

evidence under the rape shield rule as evidence which tends to

“rebut or explain scientific or medical evidence.” Tenn. R. Evid.

412(c)(4)(i). Although we agree with the Court of Criminal Appeals

that the proffered evidence transgresses the rule against the

introduction of hearsay evidence, we conclude that the evidence

should have been admitted to satisfy the defendant’s constitutional

right to present a defense. Accordingly, we reverse the judgment

of the Court of Criminal Appeals, vacate the defendant’s

conviction, and remand this case for a new trial.

I

2

“The motion shall be accompanied by a written offer of proof,

describing the specific evidence [sought to be introduced] and the

purpose for introducing it.”

3

Tenn. R. Evid. 801-804.

2

In February 1992, Howard Brown, the defendant, was

indicted upon four counts of sexual abuse of an eleven-year-old

family member. The complainant testified that Brown kept her home

from school on several occasions in September and October 1991

under the guise that she was ill. While they were alone, he

sexually abused her. She reported this abuse to her maternal aunt

on December 9, 1991. The aunt then related the abuse allegations

to the complainant’s mother, who immediately took her daughter to

the University of Tennessee Medical Center.

Robert Kelly Dickson, M.D., examined the complainant in

the emergency room at the University of Tennessee Medical Center on

December 9, 1991. His examination revealed a large, healed tear of

the complainant’s hymen. He testified that this tear was

consistent with forced vaginal penetration. Dickson opined that

the tear must have occurred several weeks prior to his examination;

he found this condition consistent with the medical history related

to him by the complainant.

Prior to trial, Brown filed a motion pursuant to Tenn. R.

Evid. 412(d)(1) requesting permission to introduce evidence

regarding the complainant’s prior sexual behavior with another

male. As stated, Dickson observed a tear in the complainant’s

hymen which he attributed to forced penetration. Brown sought to

use evidence of prior sexual behavior to provide the jury with an

alternative explanation for the complainant’s medical condition.4

This evidence would have tended to rebut the inference that Brown

was the perpetrator.

4

At trial, Dickson conceded on cross-examination that the

hymenal tear could also have been caused by consensual sexual

intercourse with an adolescent male.

3

The trial court held a hearing on Brown’s Rule 412 motion

and determined that the motion failed to specify the proffered

evidence in sufficient detail as required by Tenn. R. Evid.

412(d)(1)(iii). Thus, the trial court ruled that the evidence of

the complainant’s prior sexual behavior was inadmissible.

Based on the evidence presented, the jury convicted Brown

of one count of aggravated rape.5 Brown appealed the conviction.

The Court of Criminal Appeals held that the trial court erred in

finding the Rule 412 notice insufficient because the State’s

response to the notice (that both the complainant and her alleged

partner denied a sexual relationship in 1991) shows that the State

had sufficient notice of the specific evidence sought to be

admitted. However, the court affirmed the exclusion of the

evidence on the ground that it constituted inadmissible hearsay

evidence.

II

Tennessee’s rape shield rule is embodied in Tenn. R.

Evid. 412.6 The law was enacted to reflect the general view that

evidence of prior sexual behavior is irrelevant or, if relevant,

has little probative value compared to its prejudicial effect,

unless the evidence is within one of the enumerated exceptions.

5

For this conviction, Brown was sentenced to twenty years in

prison as a Range I, Standard Offender.

6

This rule replaced the rape shield statute, Tenn. Code Ann.

§ 40-17-119 (1991), and now governs the relevance of evidence

regarding a rape complainant’s sexual history.

4

When evidence does fall within one of the enumerated exceptions, it

is generally viewed as probative of a material issue without being

overly prejudicial. The comment to Rule 412 notes that “. . . this

rule strikes a balance between the paramount interests of the

accused in a fair trial and the important interests of the sexual

assault victim in avoiding an unnecessary, degrading, and

embarrassing invasion of sexual privacy.” Tenn. R. Evid. 412

advisory comm’n cmts (1991).

Thus, as we stated in State v. Sheline, 955 S.W.2d 42,

44-45 (Tenn. 1997), Rule 412 is designed to recognize that

intrusions into the irrelevant sexual history of a complaining

witness are not only prejudicial and embarrassing but also

discourage many complainants from reporting sexual crimes. We also

noted in Sheline that such evidence can “result in two rape trials

at the same time--the trial of the defendant and the trial of the

rape victim based on her past sexual conduct.” Id. at 44.

Rule 412, by its provisions, also “recognizes that[,]

despite the embarrassing nature of the proof, sometimes the accused

can only have a fair trial if permitted to introduce evidence of

the alleged victim’s sexual history.” Tenn. R. Evid. 412 advisory

comm’n cmts (1991). Thus, Rule 412 is a rule of relevance and is

written as a rule of exclusion. Its purpose is to exclude all

evidence regarding the complainant’s prior sexual behavior unless

the procedural protocol is followed and the evidence conforms to

the specifications of the Rule.

The provisions of Rule 412 applicable to the evidence

proffered in this case state in pertinent part:

5

(c) Evidence of specific instances

of a victim’s sexual behavior is

inadmissible unless . . . the

evidence is:

(1) Required by the Tennessee or

United States Constitution, or

. . .

(4) If the sexual behavior was with

persons other than the defendant,

[and is offered]

(i) to rebut or explain

scientific or medical evidence, or

(ii) to prove or explain the

source of semen, injury, disease, or

knowledge of sexual matters . . . .

Tenn. R. Evid. 412(c).

In pertinent part, Brown’s Rule 412 motion sought

admission of the following evidence:

(1) “[T]he testimony of A. L. and

E. G. and others that the

complainant had a sexual

relationship with a minor named W.

S.7 in 1991 at the time the

allegations arose”; and

(2) “[I]mpeachment of the

complainant with evidence that she

engaged in sexual behavior in South

Carolina in 1991.”8

It is evident from the above offer of proof, and from our

thorough review of the record, that Brown sought only to admit the

hearsay statements of A. L. and E. G. regarding the complainant’s

7

Due to the age of these three witnesses, we identify by

initials only.

8

In the offer of proof, no testimony whatsoever was adduced

from either of the two witnesses in support of the allegation that

the complainant “engaged in sexual behavior in South Carolina in

1991.”

6

sexual history. It has long been held that the Confrontation

Clause of the Sixth Amendment9 and art. I, § 9 of the Tennessee

Constitution10 provide two protections for criminal defendants: the

right to physically face witnesses and the right to cross-examine

witnesses. Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S. Ct.

989, 998, 94 L. Ed. 2d 40, 53 (1987); State v. Middlebrooks, 840

S.W.2d 317, 332 (Tenn. 1992). However, Brown never requested that

the trial court, by oral or written motion, allow cross-examination

of the complainant regarding her alleged prior sexual behavior with

W. S. Accordingly, we find that the confrontation clause issues

involving cross-examination of the complainant are deemed waived,

and they are beyond the reach of this opinion. Tenn. R. App. P.

36(a).

Another right essential to due process is the right “to

call witnesses in one’s own behalf.” Chambers v. Mississippi, 410

U.S. 284, 294, 93 S. Ct. 1038, 1048, 35 L. Ed. 2d 297, 308 (1973);

State v. Sheline, 955 S.W.2d at 47. Although we find the

confrontation clause issue to be waived, Brown has nevertheless

properly preserved the issue of whether he was inappropriately

denied the right to present the testimony of certain witnesses.

This issue addresses the interaction between the rape shield rule,

the rule against hearsay, and the constitutional right to present

a defense. As previously stated, the only physical evidence

indicating that the complaining witness had had intercourse was

supplied by Dickson, an expert witness who testified on behalf of

9

“In all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him.” U.S.

Const. amend. VI.

10

“That in all criminal prosecutions, the accused hath the

right . . . to meet the witnesses face to face.” Tenn. Const. art.

I, § 9.

7

the State. He described a large, healed tear of her hymen which

without exception was the result of penetrating trauma to the

vagina.

Brown sought to introduce the testimony of A. L. and

E. G. The trial court heard the testimony of both witnesses out of

the jury’s presence. A. L., age eighteen at trial, testified that

she observed W. S., an adolescent male, and the complainant

engaging in kissing and fondling. E. G., age fifteen at trial,

testified that she also observed W. S. and the complainant kissing

and fondling. Additionally, E. G. stated that the complainant had

mentioned to her “a couple of times” that she had been having sex

with W. S.

Brown, in testimony given later, denied that he had any

sexual contact with the complainant; he sought to show through

these two witnesses that a person other than he was responsible for

the complainant’s physical condition. This intended purpose for

the admission of the evidence comports precisely with Tenn. R.

Evid. 412(c)(4)(i). Its probative value clearly outweighs any

unfair prejudice to the complainant. See Tenn. R. Evid. 412(d)(4).

Therefore, the proffered evidence satisfies the threshold

admissibility requirements of Tenn. R. Evid. 412.

Evidence which meets the requirements of Rule 412 may yet

be inadmissible if it runs afoul of other well-established rules of

evidence, the most prominent among these being the rule against

hearsay. Generally speaking, the rule against hearsay is

considered to be a rule of reliability, while Rule 412 is a rule of

relevance. This difference ensures that only evidence deemed most

8

relevant and most reliable is appropriate for consideration by the

trier of fact.

Although we have deemed the proffered evidence

appropriate (at least at the threshold) under Rule 412, the

evidence is hearsay because it consists of out-of-court statements

offered to prove the truth of the matter asserted. Tenn. R. Evid.

801(c). The evidence does not fall within any of the exceptions to

the rule against hearsay, exceptions which are designed to ensure

a sufficient indicia of reliability. The evidence is, therefore,

inadmissible hearsay under the Tennessee Rules of Evidence. Tenn.

R. Evid. 801(c). The defendant contends, however, that exclusion

of the proffered hearsay evidence violated his constitutional right

to present a defense.

The Sixth Amendment and the Due Process Clause of the

Fourteenth Amendment clearly guarantee a criminal defendant the

right to present a defense which includes the right to present

witnesses favorable to the defense. Taylor v. Illinois, 484 U.S.

400, 408, 108 S. Ct. 646, 652, 98 L. Ed. 2d 798 (1988); Washington

v. Texas, 388 U.S. 14, 23, 87 S. Ct. 1920, 1925, 18 L. Ed. 2d 1019

(1976); Chambers, 410 U.S. at 302, 93 S. Ct. at 1049; Sheline, 955

S.W.2d at 47. In Washington v. Texas, the Court stated:

The right to offer the testimony of

witnesses, and to compel their

attendance, if necessary, is in

plain terms the right to present a

defense, the right to present the

defendant’s version of the facts as

well as the prosecution’s to the

jury so it may decide where the

truth lies. Just as an accused has

the right to confront the

prosecution’s witnesses for the

purpose of challenging their

testimony, he has the right to

9

present his own witnesses to

establish a defense. This right is

a fundamental element of due process

of law.

388 U.S. at 19, 87 S. Ct. at 1923 (emphasis added). Similarly, in

Chambers, the Court stated that “the rights to confront and cross-

examine witnesses and to call witnesses in one’s own behalf have

long been recognized as essential to due process.” Chambers, 410

U.S. at 295-96, 93 S. Ct. at 1046. The Chambers Court emphasized

that the denial or “significant diminution” of these rights “calls

into question the ultimate integrity of the fact finding process

and requires that the competing interest be closely examined.”

Id.; see also Sheline, 955 S.W.2d at 47.11

Although “[t]he right to present witnesses is of critical

importance . . . it is not absolute. In appropriate cases, the

11

Part of the flaw in the dissent’s analysis of the issue in

this case results from the dissent’s failure to recognize that a

defendant has both the right to cross-examine witnesses presented

by the State and the right to present witnesses in his or her own

behalf. While the dissent correctly notes that the defendant in

this case waived his right to cross-examine the complainant

regarding her alleged prior statement about sexual activity with

W. S., the dissent fails to recognize that waiver of the right to

cross-examine the complainant does not waive the defendant’s

separate right to present witnesses in his own behalf. The

dissent’s analysis is also flawed in that it draws no distinction

between impeachment evidence and substantive rebuttal evidence.

The two types of proof clearly are not equivalent. A jury

considers impeachment proof only when assessing the credibility of

witnesses. See State v. Martin, 964 S.W.2d 564, 567 (Tenn.

1998)(Holder, J.) (citing State v. Reece, 637 S.W.2d 858, 861

(Tenn. 1982) for the proposition that prior inconsistent statements

may be considered only on the issue of credibility and not as

substantive evidence). Therefore, even assuming defense counsel

had examined the complainant about the alleged prior statement and

offered extrinsic evidence of the statement following a denial by

the complainant, the jury would have considered the evidence only

when assessing the credibility of the complainant. Therefore,

unless the dissent is proposing a change in current Tennessee law,

simply following Tennessee Rule of Evidence 613 would not have

afforded to the defendant his right to offer substantive rebuttal

proof which was crucial to explain the State’s medical proof and

necessary to establish a defense.

10

right must yield to other legitimate interests in the criminal

trial process.” Chambers, 410 U.S at 295, 93 S. Ct. at 1046.

Specifically, “[i]n the exercise of this right, the accused, as is

required of the State, must comply with established rules of

procedure and evidence designed to assure both fairness and

reliability in the ascertainment of guilt and innocence.” Id. at

302, 93 S. Ct. at 1049. However, these procedural and evidentiary

rules of exclusion “may not be applied mechanistically to defeat

the ends of justice.” Id. “Such rules do not abridge an accused’s

right to present a defense so long as they are not ‘arbitrary’ or

‘disproportionate to the purposes they are designed to serve.’”

United States v. Scheffer, 523 U.S. 303, 118 S. Ct. 1261, 1264, 140

L. Ed. 2d 413 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 56,

107 S. Ct. 2704, 2711, 97 L. Ed. 2d 37 (1987)).

The constitutional right to present a defense has been

held to “trump” the rule against hearsay in at least two United

States Supreme Court decisions. See Chambers, 410 U.S. at 302, 93

S. Ct. at 1049. (“[W]here constitutional rights directly affecting

the ascertainment of guilt are implicated, the hearsay rule may not

be applied mechanistically to defeat the ends of justice.”); Green

v. Georgia, 442 U.S. 95, 97, 99 S. Ct. 2150, 2151, 60 L. Ed. 2d 738

(1979) (“Regardless of whether the proffered testimony comes within

Georgia’s hearsay rule, under the facts of this case its exclusion

constituted a violation of the Due Process Clause of the Fourteenth

Amendment.”); see also Rock, 483 U.S. at 44; 107 S. Ct. at 2704

(holding that a defendant’s right to present a defense was violated

by Arkansas’s ban on hypnotically refreshed testimony); Crane v.

Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d

636 (1986) (holding that the defendant’s right to present a defense

11

was denied by the exclusion of evidence); Washington, 388 U.S. at

14; 87 S. Ct. at 1920 (holding that the defendant’s right to

present a defense was violated by a statute which prevented co-

defendants from testifying for one another and thus precluded the

defendant from introducing his accomplice’s testimony that the

accomplice had in fact committed the crime). Moreover, the

constitutional right to present a defense has been held to “trump”

a number of other state and federal rules of procedure and

evidence, including rape shield statutes.12

12

See Teemer v. State, 615 So. 2d 234, 236 (Fla. Dist. Ct. App.

1993) (holding that the defendant’s right to present a defense was

violated when the trial court excluded DNA evidence to rebut the

state’s case and establish the defense of misidentification);

People v. Mason, 578 N.E.2d 1351, 1353-54 (Ill. App. Ct.

1991)(holding that the defendant’s due process right to present a

defense was violated when he was not allowed to introduce evidence

that would have provided another explanation for the injury to the

seven-year-old complainant’s hymenal ring); Douglas v. State, 797

S.W.2d 532, 534 (Mo. Ct. App. 1990)(finding constitutional error

when the prosecution presented expert medical proof of the

complainant’s hymenal condition and the trial court precluded the

defendant from presenting proof to establish that the complainant

had engaged in sexual intercourse with another person before the

defendant allegedly assaulted her); State v. Jalo, 557 P.2d 1359,

1362 (Or. Ct. App. 1976) (concluding that the defendant’s

confrontation rights were violated when the rape shield law

prevented him from proving the complainant’s motive to lie about

her sexual activity with the defendant); Commonwealth v. Black, 487

A.2d 396, 400 (Pa. Super. Ct. 1985) (holding that the defendant’s

confrontation rights were violated when he was prevented from

showing that the complainant accused him of rape to get out of the

house so that she could resume sexual activity with another

person); State v. Pulizzano, 456 N.W.2d 325, 335 (Wis.

1990)(holding that the defendant’s constitutional right to present

a defense was violated by the trial court’s exclusion of defense

evidence that the child complainant’s sexual knowledge resulted

from a previous sexual assault); Tague v. Richardson, 3 F.2d 1133,

1139 (7th Cir. 1993) (finding constitutional error when the

prosecution presented evidence of hymenal injury and the trial

court precluded the defendant from showing that the complainant’s

father had molested her several times prior to the alleged assault

involving the defendant); United States v. Begay, 937 F.2d 515, 523

(10th Cir. 1991) (holding that the defendant’s confrontation rights

required admission of the complainant’s testimony on cross-

examination about past sexual activity with a third person and of

the physician’s testimony about the complainant’s condition being

consistent with proof that a third person had sexual intercourse

with the complainant); see generally Annotation, Constitutionality

of “Rape Shield” Statute Restricting Use of Evidence of Victim’s

Sexual Experiences, 1 A.L.R. 4th 283 (1980 & Supp. 1998);

12

The facts of each case must be considered carefully to

determine whether the constitutional right to present a defense has

been violated by the exclusion of evidence. Generally, the

analysis should consider whether: (1) the excluded evidence is

critical to the defense; (2) the evidence bears sufficient indicia

of reliability; and (3) the interest supporting exclusion of the

evidence is substantially important. See Chambers, 410 U.S. at

298-301, 93 S. Ct. at 1047-49.13

Applying this test to the facts of this case, we are of

the opinion that the hearsay testimony Brown sought to introduce--

that the complainant admitted to two friends that she had sexual

intercourse with an adolescent male during the same time period the

defendant allegedly committed aggravated rape--should have been

Annotation, Admissibility of Evidence that Juvenile Prosecuting

Witness in Sex Offense Case had Prior Sexual Experience for

Purposes of Showing Alternative Source of Child’s Ability to

Describe Sex Acts, 83 A.L.R. 4th 685 (1991 & Supp. 1998).

13

Relying upon Montana v. Egelhoff, 518 U. S. 37, 116 S. Ct.

2013, 135 L.Ed.2d 361 (1996), the dissent asserts that Chambers has

been limited to its facts and announced no principle of law that is

generally applicable. The dissent apparently fails to recognize

that Justice Scalia’s opinion in Egelhoff, which purported to limit

Chambers, did not garner a majority and was joined by only three

other justices, Chief Justice Rehnquist and Justices Kennedy and

Thomas. While Justice Ginsburg filed a separate opinion concurring

in the judgment reached by Justice Scalia’s plurality, she

expressed absolutely no opinion on Chambers and its progeny.

However, Justice O’Connor filed a dissenting opinion strongly

disagreeing with Justice Scalia’s characterization of Chambers.

Justices Stevens, Souter, and Breyer joined Justice O’Connor in

dissent. Two years later a clear majority of the Court rejected

Justice Scalia’s characterization of Chambers by recognizing that

a defendant has a constitutional right to present a defense and by

stating that the right is not violated so long as evidentiary rules

“are not ‘arbitrary’ or ‘disproportionate to the purposes they are

designed to serve.’” Scheffer, 523 U.S. at 303, 118 S. Ct. at 1264

(quoting Rock, 483 U.S. at 56, 107 S.Ct. at 2711). Accordingly,

the dissent’s suggestion that the United States Supreme Court has

limited Chambers to its facts and repudiated its holding that a

defendant has a constitutional right to present a defense is wholly

without merit. While the rule announced in Chambers requires fact-

specific, case-by-case application, the general principle remains

sound.

13

admitted. As previously stated herein, the testimony Brown sought

to introduce was clearly relevant to rebut the State’s medical

proof of the complainant’s physical condition and met the threshold

admissibility standard of Tennessee Rule of Evidence 412.

Moreover, courts considering similar issues have explained that

when proof of hymenal injury is offered in a sexual assault or

abuse case involving a child complainant, rebuttal proof of prior

sexual experience is particularly critical to the defense since it

offers the jury an alternative explanation for the hymenal injury.

In the absence of such rebuttal proof, most jurors will presume

that the child is sexually innocent and attribute the hymenal

damage to the alleged criminal act. Tague, 3 F.3d at 1138; State

v. Reinart, 440 N.W.2d 503, 505 (N.D. 1989); State v. Howard, 426

A.2d 457, 462 (N.H. 1981); People v. Haley, 395 N.W.2d 60, 62

(Mich. Ct. App. 1986). Therefore, the proof sought to be

introduced in this case was substantially critical to the defense.

Next, though the evidence sought to be introduced is

hearsay, it appears to be reliable. Both A. L. and E. G. were

friends with the complainant around the time of the alleged

incident. Nothing in the record indicates that these witnesses had

any animosity toward the complainant or any other motive to

fabricate the statement. One of the defense witnesses would have

testified that the complainant had twice admitted to her that she

[the complainant] had been having sex with an adolescent male.

This hearsay proof would have been corroborated by the non-hearsay

proof of A. L. and E. G. who were also prepared to testify that

they had observed the complainant kissing and fondling the same

adolescent male and that they had observed W. S. touching the

14

complainant’s breast and buttocks around the time of the alleged

criminal incident.14

The admissibility of the evidence Brown seeks to offer in

this case is buttressed by its similarity to evidence that is

presently admissible, under Tenn. R. Evid. 803(1.2)(A), as an

admission by a party opponent. This rule permits a hearsay

declaration which is “the party’s own statement in either an

individual or a representative capacity” to be entered into

evidence. While the State is technically the “party” in a criminal

case, the complainant in a criminal case is analogous to a party.

Since the hearsay evidence proffered by Brown in this case was the

out-of-court statement of the complainant, such testimony is quite

similar to hearsay evidence which is currently admissible under

Rule 803(1.2)(A). By so stating, we are not suggesting that the

proof in this case should have been admitted as an admission by a

party opponent, nor are we holding that the complaining witness in

a criminal case is a party for purposes of Rule 803 (1.2)(A). The

similarity of the evidence sought to be introduced by the defendant

to evidence currently admissible pursuant to a firmly rooted

hearsay exception is significant and mentioned because firmly

rooted hearsay exceptions have inherent reliability. Therefore,

the reliability of the proffered testimony is evidenced, in part,

by its similarity to an existing firmly rooted hearsay exception.15

14

We emphasize that the trial court may consider this evidence

of sexual behavior outside the presence of the jury for determining

the reliability of the victim’s statement that she had engaged in

sexual intercourse. The only evidence directly relevant to the

rebuttal of the state’s evidence of injury to the victim’s hymen,

however, and therefore admissible under the proper analysis, is the

victim’s statement regarding sexual intercourse.

15

The dissent’s suggestion that the excluded evidence more

closely resembles a declaration against interest is incorrect. The

statement was not at the time of its making, nor is it now, a

15

Furthermore, the dissent’s assertion that the evidence is

unreliable because “children and teenagers may be prone to

fabricate or exaggerate both the status of their consensual sexual

activity and their sexual prowess” is a broad generalization that

simply finds no support in the record in this case. Rather than

relying upon broad generalizations, we prefer to allow a jury to

make credibility determinations.

Because the proffered evidence fits within one of the

exceptions to the rape shield rule, the interest supporting

exclusion of the evidence is based solely on the hearsay rule.16

The hearsay rule has “long been recognized and respected by

virtually every State” and “is based on experience and grounded in

the notion that untrustworthy evidence should not be presented to

the triers of fact.” Chambers, 410 U.S. at 298, 93 S. Ct. at 1047.

However, given the fact that the evidence sought to be admitted in

this case has considerable assurances of reliability and is

actually very similar to evidence that is permitted as an exception

declaration against the pecuniary, proprietary, or penal interest

of the complainant. See Tenn. R. Evid. 804(b)(3)(“A statement

which was at the time of its making so far contrary to the

declarant’s pecuniary or proprietary interest, or so far tended to

subject the declarant to civil or criminal liability . . .

.”)(emphasis added). Moreover, the dissent’s assertion that the

evidence was admitted in Chambers only because the declarant was

unavailable to testify is inaccurate. As in this case, the

declarant in Chambers was present in the courtroom. See Chambers,

410 U.S. at 300-01, 93 S.Ct. at 1048.

16

It is interesting that some courts, in cases involving an

underage rape complainant, have held that the state has no

substantial interest in excluding evidence of prior sexual activity

under rape shield laws when such evidence is being offered to prove

an alternative source of injury. Rape shield laws were intended to

exclude evidence that has little probative value but great capacity

to embarrass and distract. In child complainant cases, evidence of

prior sexual activity offered to rebut the State’s medical proof

has great probative value and minimal capacity to embarrass or

distract since the inquiry is so limited. See Tague, 3 F.3d at

1138-39.

16

to the hearsay rule, the State’s interest in enforcing the hearsay

rule to exclude the evidence is substantially less than Brown’s

compelling interest in presenting the evidence.

Considering the foregoing analysis, we conclude that

Brown’s constitutional right to present a defense was violated by

exclusion of the proffered hearsay evidence. Excluding the

proffered evidence essentially deprived Brown of an opportunity to

present to the jury critical evidence of an alternative explanation

for the complainant’s hymenal injury. In the absence of this

evidence, the jury no doubt attributed the complainant’s physical

condition to Brown’s alleged criminal conduct. As previously

noted, when the prosecution relies upon evidence of a complainant’s

physical condition in a sexual assault/abuse case involving an

underage rape complainant, defense evidence that provides an

alternative explanation for the condition is particularly critical.

Indeed, the only evidence which made this case more than a pure

credibility contest was the State’s expert proof of physical injury

to the complainant. Significantly, the State’s own medical expert

conceded on cross-examination that the physical injury he observed

was consistent with the complainant engaging in a consensual sexual

encounter with an adolescent male. Under such circumstances,

depriving the defendant of the right to present critical, reliable

hearsay evidence of an alternative explanation for the injury is

constitutional error. We are unable to conclude that error was

harmless beyond a reasonable doubt in this case. Chapman v.

California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967);

State v. Howell, 868 S.W.2d 238 (Tenn. 1993).

17

Finally, we reiterate that, contrary to the dissent’s

exaggerated assertion, our holding does not effectively “abolish

our rule against hearsay and potentially abolish other evidentiary

rules, such as the rape shield law which as a matter of policy,

preclude admissibility of specific and relevant evidence.” Our

holding is neither novel nor far-reaching. Indeed, Tenn. R. Evid.

412 expressly recognizes that the Constitution may, in certain

circumstances, mandate admission of proof that is otherwise

inadmissible. We simply apply a long-established rule and hold

that when, in a particular case, the rule against hearsay operates

to deprive a defendant of his or her right to present relevant and

reliable evidence that is critical to establish a defense, the rule

against hearsay must yield to the defendant’s constitutional right

to present a defense.

III

To summarize, we conclude that Brown waived the right to

cross-examine the complainant about her prior sexual behavior;

therefore, no right under the confrontation clause is implicated.

We conclude, also, that the testimony of the complainant’s friends

about the complainant’s sexual history satisfies the relevancy test

of our rape shield rule. Although this testimony violates the rule

against hearsay, admission of the proof is nonetheless required to

satisfy Brown’s constitutional right to present a defense.

Accordingly, the judgment of the Court of Criminal Appeals is

reversed, Brown’s conviction is vacated, and the case is remanded

for a new trial. Costs shall be assessed against the State.

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______________________________

ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, C.J.

Drowota, J.

DISSENT:

Holder, Barker, JJ.

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