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UNITED STATES v. ROMAN

May 1, 1995

UNITED STATES OF AMERICA, against JESUS ROMAN, a/k/a "JESSIE", PREM PERSAUD a/k/a "BOBBY"


The opinion of the court was delivered by: CHARLES L. BRIEANT

 Brieant, J.

 The underlying facts of this case are referred to in the Court's Memorandum and Order dated April 12, 1995 and familiarity therewith is assumed.

 Co-Defendant, Jesus Roman, indicted with another for the crime of Aggravated Sexual Abuse (rape) within the special maritime and territorial jurisdiction of the United States, in violation of 18 U.S.C. § 2241, moves for an order compelling blood testing of himself and infant Michael Roman to determine if defendant is the biological father of Michael Roman. Defendant's stated purpose for determining the paternity of Michael Roman is to give "an indication of the pattern of manipulation and lying Monique Roman has followed when dealing with [defendant], culminating in the current charges against him," in other words, to impeach the complainant's credibility. (Brody Affirmation, p.4). Complainant is the wife of co-defendant Roman.

 Federal Rule of Evidence 412 reads in relevant part:

 
Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition
 
(a) Evidence generally inadmissable - The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
 
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
 
(2) Evidence offered to prove any alleged victim's sexual disposition.
 
(b) Exceptions. -
 
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
 
(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence; (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution ; and (C) evidence the exclusion of which would violate the constitutional rights of the defendant.

 The paternity testing sought by defendant is an attempt to illustrate indirectly to the trial jury the complainant's alleged sexual behavior in the distant past with individuals other than the defendant, thereby damaging her credibility. Federal Rule of Evidence 412 cannot be circumvented in this way. See ...


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