Admission of Sexual Habits Evidence Leads to Reversal

The Supreme Court of Montana has reversed a conviction for sexual assault of a child after the prosecution elicited inadmissible testimony about the defendant’s sexual habits with his girlfriend.

In State v. Nichols, the defendant was charged with sexual assault of his girlfriend’s nine-year-old sister. At trial, the State elicited testimony about the defendant’s personal sexual habits during its questioning of the girlfriend. The prosecutor asked her if the defendant ever cheated on her and whether the pair talked about “unusual sexual things.” He also asked about a specific incident where the defendant asked the girlfriend to join him with another woman.

When the defense objected to this line of questioning, the State responded that the defense opened the door to the defendant’s sexual behavior by mentioning the defendant’s “healthy, active sex life” with the girlfriend during opening statements.

The trial judge overruled the objection but told the prosecutor to “keep it within a certain range.” The defendant was later convicted. He appealed, arguing that the trial judge erred by allowing testimony about his sexual habits.

Evidence is not admissible, even when relevant, if its unfair prejudicial effect substantially outweighs its probative value. Washington applies the same test when admitting evidence that could unfairly prejudice a defendant.

Here, the appellate court found that, while the defense lawyer’s statement about Nichols’s sex life may have opened the door to some questioning on the subject, the State’s “questioning about the details of the couple’s variant sexual practices was inflammatory and unfairly prejudicial.” The appellate court reasoned that the State crossed the line when it extracted specific details about their sexual practices.

The appellate court found this error was prejudicial because it was “inflammatory in nature” and likely contributed to the conviction as the State had a “pretty weak case.” The conviction was reversed.