Section 18-3-407 - [Effective 7/1/2024] Victim's and witness's prior history - evidentiary hearing - victim's identity - protective order(1) Subject to constitutional limitations, evidence of specific instances of the victim's or a witness's prior or subsequent sexual conduct, opinion evidence of the victim's or a witness's sexual conduct, and reputation evidence of the victim's or a witness's sexual conduct may be admissible only at trial and shall not be admitted in any other proceeding except at a proceeding pursuant to subsection (2)(c) of this section. At trial, such evidence is presumed to be irrelevant except evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing that the act or acts charged were or were not committed by the defendant. (2) In any criminal prosecution for class 4 felony internet luring of a child, as described in section 18-3-306 (3) or under sections 18-3-402 to 18-3-405.5, 18-3-504, 18-6-301, 18-6-302, 18-6-403, 18-6-404, and any offense described in part 4 of article 7 of this title 18, or for attempt or conspiracy to commit any of these crimes, if evidence, that is not excepted under subsection (1) of this section, of specific instances of the victim's or a witness's prior or subsequent sexual conduct; opinion evidence of the victim's or a witness's sexual conduct; reputation evidence of the victim's or a witness's sexual conduct; or evidence that the victim or a witness has at least one incident of false reporting of unlawful sexual behavior prior to or subsequent to the alleged offense is to be offered at trial, the following procedure shall be followed: (a)(I) A written motion must be made at least thirty-five days prior to trial, unless later for good cause shown, to the court and to the opposing parties stating that the moving party has an offer of proof articulating facts that would support a judicial finding that the evidence overcomes the presumption of irrelevance and that the probative value of evidence of specific instances of the victim's or witness's prior or subsequent sexual conduct, opinion evidence of the victim's or witness's sexual conduct, reputation evidence of the victim's or witness's sexual conduct, or evidence that the victim or witness has at least one incident of false reporting of unlawful sexual behavior prior to or subsequent to the alleged offense that is not substantially outweighed by the presumptive unfair prejudice, confusion of the issues, misleading of the jury, or unfair invasion of the privacy of the victim or witness.(II) If the moving party intends to offer evidence concerning at least one incident of false reporting of unlawful sexual behavior prior to or subsequent to the alleged offense pursuant to subsection (2)(a)(I) of this section, the party must also articulate facts that would, by a preponderance of the evidence, demonstrate that the victim or witness has made a report of unlawful sexual behavior that was demonstrably false or false in fact prior to or subsequent to the alleged offense. (b) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.(c) If the court finds that the offer of proof is sufficient, the court shall notify the other party of such. If the prosecution stipulates to the facts contained in the offer of proof, the court shall rule on the motion based upon the offer of proof without an evidentiary hearing. Otherwise, the court shall set a hearing to be held in camera prior to trial. In such hearing, to the extent the facts are in dispute, the court may allow the questioning of the victim or witness regarding the offer of proof made by the moving party or otherwise allow a presentation of the offer of proof, including but not limited to the presentation of witnesses.(d) An in camera hearing may be held during trial if evidence first becomes available at the time of the trial or for good cause shown.(e) At the conclusion of the hearing, or by written order if no hearing is held, if the court finds that the evidence proposed to be offered regarding the sexual conduct of the victim or witness overcomes the presumption of irrelevance, is relevant to a material issue to the case, and that the probative value of the evidence is not substantially outweighed by the probability that its admission will create unfair prejudice, confusion of the issues, misleading of the jury, or unfair invasion of the privacy of the victim or witness, the court shall order that evidence may be introduced and prescribe the nature of the evidence or questions to be permitted. The moving party may then offer evidence pursuant to the order of the court.(f) All motions and supporting documents filed pursuant to this section shall be filed under seal and may be unsealed only if the court rules the evidence is admissible and the case proceeds to trial. If the court determines that only part of the evidence contained in the motion is admissible, only that portion of the motion and supporting documents pertaining to the admissible portion may be unsealed.(g) The court shall seal all court transcripts, tape recordings, and records of proceedings, other than minute orders, of a hearing held pursuant to this section. The court may unseal the transcripts, tape recordings, and records only if the court rules the evidence is admissible and the case proceeds to trial. If the court determines that only part of the evidence is admissible, only the portion of the hearing pertaining to the admissible evidence may be unsealed.(3)(a) In a criminal prosecution including an offense described in subsection (2) of this section, the court may, at any time upon motion of the prosecution or on the court's own motion, issue a protective order pursuant to the Colorado rules of criminal procedure concerning disclosure of information relating to the victim or a witness. The court may punish a violation of a protective order by contempt of court.(b) The victim who would be the subject of the protective order may object to the motion for a protective order.(4)(a) Evidence of the victim's manner of dress or hairstyle at the time of, prior to, or subsequent to the alleged offense is not admissible as evidence of the victim's consent to sexual contact, sexual penetration, or sexual intrusion by the defendant in a case involving unlawful sexual behavior, as defined in section 16-22-102 (9); an offense described in part 4 of article 7 of this title 18; or an attempt or conspiracy to commit any of those offenses.(b) For purposes of this section, "manner of dress" does not mean:(I) Testimony or physical evidence of the victim's clothing or its physical condition at the time of, prior to, or subsequent to the alleged offense, offered as evidence for a purpose other than the victim's consent; or(II) Evidence of the voluntary or consensual removal of the victim's clothing.Amended by 2024 Ch. 123,§ 2, eff. 7/1/2024, app. to proceedings occurring on or after 7/1/2024.Amended by 2014 Ch. 282, § 4, eff. 7/1/2014.L. 75: Entire part R&RE, p. 630, § 1, effective July 1. L. 91: IP(2) amended, p. 405, § 10, effective June 6. L. 98: Entire section amended and IP(2) amended, pp. 399, 400, §§ 7, 8, effective April 21. L. 2004: (3) added, p. 375, § 1, effective April 8. L. 2005: IP(1), (2)(c), and (2)(e) amended and (2)(f) and (2)(g) added, p. 426, § 5, effective April 29. L. 2006: IP(2) amended, p. 2056, § 6, effective July 1. L. 2012: (2)(a) amended, (SB 12-175), ch. 208, p. 871, § 127, effective July 1. L. 2014: IP(2) amended, (HB 14-1273), ch. 282, p. 1150, § 4, effective July 1.Amendments to the introductory portion to subsection (2) by sections 7 and 8 of House Bill 98-1177 were harmonized.
This section is set out more than once due to postponed, multiple, or conflicting amendments.