Sometimes, but the purpose and the charged offense matter. In covered prosecutions, Evidence Code section 1103(c) generally bars a complainant’s sexual-conduct evidence when offered to prove consent, subject to specific statutory limits and exceptions. A different route may exist for relevant credibility evidence: in the settings covered by section 782, the defense must make a written motion with a sealed affidavit, and the judge decides whether a hearing outside the jury is warranted and what, if anything, may be asked or admitted. Neither route makes the evidence automatically available to the jury. (Evidence Code § 1103; Evidence Code § 782)
Identify the purpose before evaluating the evidence
Evidence offered to suggest that someone consented because of earlier sexual conduct raises a different question from evidence offered to challenge credibility. Section 1103(c) restricts the first use in the prosecutions it lists. It excludes conduct with the defendant from that particular bar, and it permits narrowly responsive evidence when the prosecution or witness first introduces sexual-conduct evidence. The statute also treats detention settings separately. Those limits do not create a general license to introduce sexual history. (Evidence Code § 1103)
Section 782 provides a procedure for certain credibility offers in specified prosecutions and testimony settings, including some matters involving Evidence Code sections 1101(b) or 1108. Coverage depends on the exact charge and setting. The court considers whether the proposed evidence is relevant and whether its value is substantially outweighed by undue time, prejudice, confusion, or risk of misleading the jury under Evidence Code section 352. (Evidence Code § 782)
What the section 782 process requires
The defense motion must identify the proposed evidence and explain its relevance. It must be supported by an affidavit setting out the offer of proof, and the affidavit is filed under seal. The judge first screens whether the offer is sufficient. If it is, the court must order a hearing outside the jury’s presence and allow questioning of the complaining witness about the offer. If evidence or questions are permitted after that hearing, the court’s order defines their scope; filing a motion does not guarantee that the evidence will be admitted. (Evidence Code § 782)
The statute’s definition includes certain sexual content in social-media communications, but excludes content related to the charged offense from that definition. The court still applies the statutory coverage and admissibility tests. A message or image should not be treated as admissible simply because it is online or because someone labels it “sexual history.” (Evidence Code § 782)
Prepare a focused, lawful offer
Counsel will need to know the exact charge and procedural setting; what specific item or testimony is proposed; whether it concerns conduct with the defendant, the charged event, or a separate credibility theory; when it occurred; how it was lawfully obtained; and what relevant issue it tends to prove. The defense should also consider whether the point can be established through less prejudicial evidence. Preserve records you lawfully possess in their original form and let counsel handle any sealed filing and witness-related steps. Do not contact a complainant or witness to obtain material or test a theory.
The Law Offices of David S. Chesley represents people facing California sex-offense charges. Call (800) 755-5174 to discuss the charge, proposed evidence, and pretrial procedure.