Can Utah courts exclude evidence of a victim's sexual conduct under Rule 412? State v. Marks Explained

In State v. Marks, the Utah Court of Appeals addressed the important balance between a defendant’s Sixth Amendment confrontation rights and the protections afforded sexual assault victims under Utah Rule of Evidence 412.

Background and Facts

Billy J. Marks was convicted of sodomy upon a child based on allegations by his mentally challenged grandson. The victim had a developmental disability and functioned at approximately a third or fourth-grade level despite being in tenth grade. Before trial, Marks sought to introduce evidence that the victim had possessed pornography and engaged in sexual simulation with his seven-year-old sister. Marks argued this evidence showed the victim had sexual knowledge and a motive to fabricate allegations, and that excluding it violated his constitutional rights.

Key Legal Issues

The court examined whether Rule 412’s exclusion of evidence regarding the victim’s sexual behavior violated Marks’s confrontation rights under the Sixth Amendment. The analysis required balancing the defendant’s right to present a complete defense against Rule 412’s goals of protecting victims from harassment and encouraging reporting of sexual crimes. The court also addressed whether the victim’s testimony was sufficient to support conviction despite inconsistencies.

Court’s Analysis and Holding

The Court of Appeals applied Rule 412’s constitutional exception, which permits otherwise admissible evidence if exclusion would violate the defendant’s constitutional rights. However, the court found the excluded evidence had minimal probative value. The sexual simulation incident was not similar to the alleged oral sodomy and therefore irrelevant to the victim’s ability to fabricate such specific allegations. While the pornography evidence had some relevance to general sexual knowledge, Marks failed to provide sufficient foundational evidence about the extent of the victim’s exposure. The court emphasized that exclusion under Rule 412 is not arbitrary or disproportionate when the evidence’s probative value is minimal.

Practice Implications

This decision demonstrates that Utah courts will rigorously scrutinize attempts to admit evidence under Rule 412’s constitutional exception. Practitioners seeking to introduce such evidence must establish clear relevance and similarity between the prior conduct and the charged offense. The court’s analysis shows that vague inferences about sexual knowledge are insufficient—specific foundational evidence is required. Additionally, the decision reinforces that inconsistencies in a child victim’s testimony do not automatically render it insufficient, particularly when the victim has developmental disabilities.