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Date: 01-04-2019
Case Style:
STATE OF MONTANA v. RANDALL BRYCE WALKER
Case Number: 2018MT 312
Judge: Laurie McKinnon
Court: SUPREME COURT OF THE STATE OF MONTANA
Plaintiff's Attorney: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein (argued), Assistant Attorney General, Helena, Montana
William E. Fulbright, Ravalli CountyAttorney
Defendant's Attorney: Quentin M. Rhoades
Description:
Walker married A.W.’s mother, Kim, when A.W. was an infant. A.W. later
disclosed that, when she lived with Walker, he subjected her to a series of sexual assaults,
beginning when she was seven or eight years old and ending when she was twelve or
thirteen years old. She testified at trial that Walker frequently and regularly sexually
assaulted her. Walker and Kim divorced in 2007. The next year, Walker married Laura.
Laura’s two daughters, B.W. and R.W., lived with Walker and Laura. Walker and R.W.
did not have a good relationship. R.W. testified that Walker constantly made her
uncomfortable by doing things like smacking and grabbing her bottom and trying to kiss
her on the lips.
3
¶4 R.W. and B.W. both participated in competitive archery. Atournament took place
near their home on February 14, 2015. At that time, R.W. was eleven years old. Early that
morning, around 6:00 a.m., Laura and B.W. left to help set up the tournament, leaving
Walker and R.W. aloneathome. R.W. and Walker planned to meet B.W.and Laura atthe
tournament. Walker and R.W. eachtestified at trial, recounting different versions of what
occurred that morning.
¶5 R.W. testified that, after she woke up, she went to Walker and Laura’s bedroom,
where Walker was lying in bed. R.W. crawled into the bed on the side where her mother
usually slept. She testified that she did sobecause she wanted to wake up a little bit before
she got ready for the tournament, but thought she would fall back asleep if she stayed in
her own bed. R.W. then explained, in detail, how Walker initiated sexual contactwith her.
Walker, on the other hand, testified that R.W. made sexual advances at him and that, as
soon as he realized what was happening,he jumped out of the bed. R.W. and Walker went
to the archery tournament later that morning.
¶6 The State charged Walker with two counts of felony incestand two counts offelony
sexual assault based on Walker’s ongoing conduct towards A.W. when she was his
step-daughter and Walker’s conduct towards R.W. on February 14, 2015, when she was
his step-daughter. Walker denied all charges and maintained his innocence.
¶7 In preparing his defense, Walker voluntarily underwent a psychosexual evaluation
with Dr. Robert Page (Dr. Page). Walker sought to have Dr. Page testify at trial as to the
results of his psychosexual evaluation. Walker made an offer of proof, representing to the
District Court that Dr. Page would testify that “Walker’s [psychosexual] profile is that he
4
is not sexually interested in school-age males or females, or preschool age males or
females” and that Walker showed “no signs of psychopathology or personality pathology.”
Dr. Page would further testify that he had no therapeutic recommendations for Walker.
¶8 Walker also voluntarily took a polygraph test with Dick Stotts (Stotts). Stotts
examined Walker pursuant to the American Polygraph Association’s standard polygraph
procedure. During the polygraph test, Stotts asked Walker whether he ever had sexual
contact with underagechildren generallyor withR.W. particularly. Walker denied having
any such contact. Stotts subsequently issued a report, in which he indicated that Walker’s
“polygrams did not contain specific reactions to the relevant questions, indicating no
attempt at deception.” Stotts further concluded, “After careful analysis of
[Walker’s]polygrams, it is the opinion of the examiner that [Walker] told the truth during
his examination.” Walker planned to have Stotts testify about the polygraph test’s results
at his trial.
¶9 The State filed pre-trial motions to exclude Dr. Page’sand Stotts’stestimony. The
District Court accepted briefing on the issues and ultimately granted the State’s motions.
Walker’s case proceeded to a jury trial in August 2016. At trial, Walker planned to have
Stacy Wood (Wood) testify about alleged past sexual contact between victim R.W. and a
three-year-old. Walker represented that Wood planned to testify about a time when she
found eight-year-old R.W. in bed with the three-year-old, allegedly engaging in sexual
conduct initiated by R.W. The State asked the District Court to exclude Wood’s testimony
pursuant to Montana’s Rape Shield Law, § 45-5-511(2), MCA. The District Court heard
5
the parties’ arguments and subsequently granted the State’s motion to exclude Wood’s
testimony.
¶10 After five days of trial, the jury found Walker guilty on all four counts. The District
Court sentenced Walker to four, 100-year concurrent prison sentences, with no time
suspended. Walker appeals, arguing that the District Court improperly excluded Dr.
Page’s, Stotts’s, and Wood’s testimony. STANDARD OF REVIEW ¶11 District courts have broad discretion in determining the relevance and admissibility
of evidence. State v. Daffin, 2017 MT 76, ¶12, 387 Mont. 154, 392 P.3d 150. Thus, we
review evidentiary rulings for an abuse of discretion. State v. Madplume, 2017 MT 40,
¶19, 386 Mont. 368, 390 P.3d 142. A court abuses its discretion if it acts arbitrarily without
the employment of conscientious judgment or exceeds the bounds of reason, resulting in
substantial injustice. State v. Spottedbear, 2016 MT 243, ¶9, 385 Mont. 68, 380 P.3d 810.
In exercising its discretion, however, a district court is bound by the Rules of Evidence and
applicable statutes. State v. Derbyshire, 2009 MT 27, ¶19, 349 Mont. 114, 201 P.3d 811.
Consequently, to the extent the court’s ruling is based on its interpretation of an evidentiary
ruleor statute, our review is de novo. Derbyshire, ¶19.
6
DISCUSSION ¶12 1. Did the District Court abuse its discretion in excluding the defendant’s polygraph evidence?
¶13 Walker included polygraph examiner Stotts on his list of potential trial witnesses
and provided the State with a copy of Stotts’s polygraph report. The State filed a pretrial
motion, seeking to exclude Stotts as a trial witness and prohibit any reference to the
polygraph examination by any attorney, party, or witness. The State based its motion on a
line of precedent from this Court excluding polygraph evidence from all court proceedings.
See, e.g., State v. Hameline, 2008 MT 241, ¶20, 344 Mont. 461, 188 P.3d 1052; State v.
Anderson, 1999 MT 58, ¶12, 293 Mont. 472, 977 P.2d 315; State v. Staat, 248 Mont. 291,
293, 811 P.2d 1261, 1262 (1991).
¶14 Walker opposed the State’s motion but did not mention Stotts’s testimony or the
precedent upon which the State relied. Instead, Walker asserted that his offer to take the
polygraph examination was admissible. Walker stated, “If Walkertestifies, he will seek to
offer the fact he volunteered to take the polygraph test as evidence relevant to his state of
mind –more specifically, evidence relevant to his consciousness of innocence.” (Emphasis
added.) Walker further argued that, because the jury would know that he offered to take
the polygraph examination, it would also need to know the examination’s results. He urged
the District Court to consider the interaction of M. R. Evid. 403, 404, 608, and 702 in
deciding whether the polygraph examination’s results should be admitted. Walker asserted
that each side should “present evidence concerning the general science of polygraph
evidence” to assist the court in determining whether the results were admissible under
7
M.R.Evid.702. Walker further stated that, if the State impeached his testimony, he would
use the polygraph examination results to corroborate his truthfulness.
¶15 The District Court granted the State’s pretrial motion to exclude Stotts’s testimony
and prohibit any attorney, party, or witness from referencing the polygraph examination.
In its order, the court recognized the disparity between what the State requested and what
Walker argued: “Walker fails to address, or even acknowledge, the Montana Supreme
Court’s bright line prohibition of polygraph evidence . .. . Instead, he contends the issue
of the admissibility of an offer to take a polygraph test has not yet been addressed by the
Montana Supreme Court.” (Emphasis in original.) The District Court found Walker’s
argument unpersuasive in view of this Court’s precedent clearly prohibiting polygraph
evidence. Walker appeals the District Court’s decision, arguing it should have admitted
the polygraph evidencepursuant to M.R.Evid. 702.
¶16 We begin our analysis by noting that there are two distinct types of polygraph
evidence at issue here. The firsttype involves the admissibility of Walker’s polygraph test
results through Stotts’s expert testimony pursuant to M.R. Evid. 702. The second type of
evidence concernsWalker’soffertotake the polygraph test, which does not involve expert
testimony or implicate considerations of M. R. Evid. 702. In his argument to the District
Court, Walker argued that his offer itself should be admissible, but we do not discern a
similar argument on appeal. Walker only mentions his offer in passing, urging us to
“consider” the fact that he “willingly submitted” to the polygraph test. Accordingly, our
decision only addresses the argument Walker raises on appeal—admissibility of polygraph
test resultspursuant to M. R. Evid. 702. We do not consider Walker’s ancillary argument
8
concerning the admissibility of his offer to take a polygraph test, which would involve
evidentiary considerations other than M. R. Evid. 702.
¶17 Walker urges us to depart from our precedent holding that polygraph test results are
inadmissible and apply, instead, general standards for admitting expert opinion evidence.
The analysis of whether to admit or exclude expert testimony begins with M.R.Evid.702,
which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
Our jurisprudence recognizes that expert evidence is admissible if the expert field is
reliable, the expert is qualified, and the testimony will assist the trier of fact to understand
the evidence or determine a fact in issue. McClue v. Safeco Ins. Co., 2015 MT 222,
¶¶21-23, 380 Mont. 204, 354 P.3d 604; M.R.Evid.702. Walker asks us to reconsider the
scientific reliability of polygraph testing.
¶18 This Court has long held that polygraph test results are inadmissible in all Montana
court proceedings. See,e.g., Hameline, ¶20 (“We repeat yet again our blanket prohibition
on the use of polygraph test results in any way in any Montana court proceeding.”); State
v. DuBray, 2003 MT 255, ¶ 105, 317 Mont. 377, 77 P.3d 247.1 The prohibition on
polygraph test results extends to a defendant’s sentencing. See, e.g., Anderson, ¶12; State
v. Hensley, 250 Mont. 478, 482-83, 821 P.2d 1029, 1032 (1991). Even the indirect
1 Montana is not alone in its complete prohibition of polygraph evidence. See State v. A.O., 965 A.2d 152, 161-62(N.J. 2009) (citing cases from twenty-eight states barring the admission of polygraph evidence outright).
9
admission of polygraph test results is prohibited. Anderson, ¶ 12 (stating that “any
evidence which would otherwise be admissible may be rendered inadmissible where a
polygraph is used in the production of or for the purpose of influencing the outcome of
such evidence”); In re N.V., 2004 MT 80, ¶20, 320 Mont. 442, 87 P.3d 510(emphasizing
that “polygraph results, even if indirectly presented to a district court, are inadmissible”);
State v. Craig, 262 Mont. 240, 242-43, 864 P.2d 1240, 1242-43 (1993). The only instances
in whichwe permit polygraph testing is when a court imposes therapeutic polygraph testing
as a probation condition. See, e.g., State v. Smart, 2009 MT 1, ¶ 12, 348 Mont. 274,
201 P.3d 123; State v. Heddings, 2008 MT 402, ¶ 20, 347 Mont. 169, 198 P.3d 242;
Hameline, ¶¶19-20.
¶19 While frequently premised upon a determination that polygraph examinations are
unreliable, this strict prohibition also stems from a concern that polygraph test results
invade the province of the fact-finder by improperly commenting on a witness’s or
defendant’s credibility. State v. Bashor, 188 Mont. 397, 414-16, 614 P.2d 470,
480-81 (1980) (citing United States v. Alexander, 526 F.2d 161, 168-69 (8th Cir. 1975)).
In Bashor, we held that when a polygraphist testifies about polygraph test results, that
person directly comments on “the determinative factor as to the guilt or innocence of a
defendant in a jury-tried case.” Bashor, 188 Mont. at 414, 614 P.2d at 480 (quoting
Alexander, 526 F.2d at 168). That testimony “deprive[s] the defendant of the common
sense and collective judgment of his peers, derived after weighing facts and considering
the credibility of witnesses, which has been the hallmark of the jury tradition.” Bashor,
10
188 Mont. at 414, 614P.2d at 480 (quoting Alexander, 526 F.2d at 168). In Alexander, the
Eighth Circuit Court of Appeals explained:
The most important function served by a jury is in bringing its accumulated experience to bear upon witnesses testifying before it, in order todistinguish truth from falsity. Such a process is of enormous complexity, and involves an almost infinite number of variable factors. It is the basic premise of the jury system that twelve men and women can harmonize those variables and decide, with the aid of examination and cross-examination, the truthfulness of a witness. But a [polygraph] machine cannot be examined or cross-examined; . . . [The court is] not prepared to rule that the jury system is as yet outmoded. [The court prefers] the collective judgment of twelve men and women who have sat through many weeks of a trial and heard all the evidence on the guilt or innocence of a defendant.
Alexander, 526 F.2d at 168-69 (quoting United States v. Stromberg, 179 F. Supp. 278,
280 (S.D.N.Y. 1959)); see also United States v. DeBetham, 348 F. Supp. 1377,
1390-91 (S.D. Cal.), aff’d, 470 F.2d 1367 (9th Cir. 1972). In many ways, an “aura of
infallibility” accompanies polygraph test results, which “can lead jurors to abandon their
duty to assess credibility and guilt” and, instead, rely on the examiner’s expert opinion.
United States v. Scheffer, 523 U.S. 303, 314, 118 S. Ct. 1261, 1267 (1998). Consistent
with this reasoning, “[t]he only acceptable lie detection methods in Montana court
proceedings reside with the court in bench trials, the jury in jury trials, and the skill of
counsel in cross-examination in all trials.” Staat, 248 Mont. at 293, 811 P.2d at 1262.
¶20 There is a distinction between polygraph test results and most other types of
admissible scientific evidence. Bashor, 188 Mont. at 414-16, 614 P.2d at 480-81. After
the jury receives other types of scientific expert testimony, such as fingerprint comparisons
or handwriting analyses, it “has the additional responsibility of reviewing other facts which
tend to prove or disprove [a] defendant’s connection with the crime and, if participation is
11
shown, the jury may further . . . ascertain the defendant’s mental state at the time of the
crime . . . .” Bashor, 188 Mont. at 415, 614 P.2d at 480 (quoting Alexander, 526 F.2d at
169). A polygraphist’s testimony, on the other hand, comments directly on the question
the jury must answer: “Is the defendant innocent or guilty?” Bashor, 188 Mont. at 415,
614 P.2d at 481(quoting Alexander, 526 F.2d at 169). “If the expert testimony is believed
by the jury, a guilty verdict is usually mandated.” Bashor, 188 Mont. at 415, 614 P.2d at
480 (quoting Alexander, 526 F.2d at 169). Presentation ofscientific expert testimony that
the defendant credibly denied committing the offense goes to the issue of the defendant’s
guilt or innocence.
¶21 It has been stated that a polygraphist opines only to the truth or falsity of an
accused’s responses and does not comment on the guilt or innocence of the defendant.
United States v. Zeiger, 350 F. Supp. 685, 691 (D.D.C.), rev’d, 475 F.2d 1280 (D.C. Cir.
1972). However, that distinction is illusory, as recognized in Alexander, 526 F.2d at 168,
n.14. If the polygraphist asks the defendant properly phrased questions aboutrelevant facts
and elements of the crime, and the polygraphist then testifies at trial that the defendant’s
responses were not fabricated, the testimony’s import is clear. The jury may easily draw
an implicit conclusion that the defendant did not committhe crimefor which he is charged.
¶22 Although perhaps subtle,there is thus afundamentaldifferencebetween polygraph
test results and other typesof scientific evidence. Here, Walker seeks to introduce, through
scientific expert testimony, polygraph test results to establish that he is telling the truth
about his innocence. We conclude the purpose for which the evidence is being offered, to
show that Walker is credible when he says he is innocent, invades matters that are clearly
12
committed to the province of the jury. First, it bolsters Walker’s credibility; second, it
speaks to Walker’s guilt or innocence. Thus,apart from considerations of M.R.Evid.702,
the evidence is inadmissible. Even if polygraph examinations were deemed reliable,
evidence of polygraph test results improperly comments on a witness’s credibility and
invadesthe province of the jury. A jury must decide the guilt or innocence of a defendant,
and it wasexclusively within the province of the jury to weigh the credibility and veracity
of each witness atWalker’s trial. See Bashor, 188Mont. at 416, 614 P.2d at 481. We find
no basis to depart from the sound reasoning expressed in our precedent that polygraph test
results invade the province of the jury and are inadmissible in all Montana court
proceedings.
¶23 Finally, we find it prudent to address Walker’s argumentthat the Legislature’s 1995
repeal of a 1983 statute demonstrates the Legislature’s intent for polygraph test results to
be admissible. In 1983, the Legislature enacted § 37-62-302, MCA (1983), entitled
“Inadmissibility of results as evidence,” which provided, “Results of a polygraph
examination or other test given by an examiner may not be introduced or admitted as
evidence in a court of law.” 1983 Mont. Laws 370. In 1995, the Legislature repealed the
professional and occupational licensing statutes that contained §37-62-302, MCA (1983).
Walker argues that the Legislature’s repeal demonstrates its intent to have polygraph
evidence treated the same way as other forms of expert witness testimony. Walker’s
argument is, however, unpersuasive, as our precedent excluding polygraph test results
predated § 37-62-302, MCA (1983), and we continue to apply the same principles
post-repeal. See, e.g., State v. Beachman, 189 Mont. 400, 404, 616 P.2d 337, 339 (1980)
13
(concluding polygraph test results were inadmissible because the witness’s credibility was
not “a fact in issue”); Bashor, 188 Mont. at 416, 614 P.2d at 481; State v. Campbell,
176 Mont. 525, 530, 579 P.2d 1231, 1234 (1978); State v. Cor, 144 Mont. 323, 349-50,
396 P.2d 86, 100 (1964). However, more importantly, it is this Court’s responsibility to
protect the integrity of the fact-finding process and to maintain the important function
served by the jury. The trial process—counsel’s presentation of evidence andexamination
and cross-examination of witnesses—allows the jury to assess the credibility of each
witness andarrive at a collective judgment of guilt or innocence. The judiciary is charged
with maintaining the integrity of the trial.
¶24 Accordingly, consistent with our well-established precedent, we reiterate the
“simple rule of law” previously stated in Staat: “Polygraph evidence shall not be allowed
in any proceeding in a court of law in Montana.” Staat, 248 Mont. at 293, 811 P.2d at
1262. We affirm the District Court’s order excluding Walker’s proffered polygraph
evidence.
¶25 2. Did the District Court abuse its discretion in excluding a defense expert’s testimony that the defendant’s psychosexual profile revealed no sexual interest in children?
¶26 Walker planned to have Dr. Page testify about the results of Walker’s psychosexual
evaluation at trial. Specifically, Walker sought to have Dr. Page testify that Walker’s
psychosexual profile demonstrated Walker had no sexualinterest in children; that Walker
didnot show any signs of psychopathology or personality pathology;and that Dr. Page did
not have any therapeutic recommendations for Walker. The State filed a pre-trial motion
14
to exclude Dr. Page’s testimonyregarding the results of Walker’s psychosexual evaluation,
arguing the testimonywould improperly bolster Walker’s credibility.
¶27 Walker responded, arguing Dr. Page’s testimony would not directly bear on
Walker’s credibility as a witness but would, instead, undermine the State’s factual theory
that Walker had sexual contact with the victims. Walker reasoned that evidence showing
he is not psychologically inclined to be sexually gratified by children would render it less
probable that he knowingly had sexual contact with the victims. After considering each
party’s briefing, the District Court agreed with the State and excluded the testimony.2
¶28 Walker now appeals the District Court’s decision, arguing it improperly excluded
Dr. Page’s testimony. Walker sought to examine Dr. Page as an expert witness. Walker
asserts Dr. Page would not have offered evidence concerningany witness’s credibility, but
2 Our review of the District Court’s decision to exclude the psychosexual evaluation is limited to a review of the information the District Court knew about the evaluation when it made its decision. Walker represented that he planned to use Dr. Page as an expert witness, stating, “[Dr. Page] has not yet supplied a written report, but states orally that upon his psycho-sexual evaluation of [Walker], [Walker] has no abnormal or other attraction for pubescent or prepubescent children.” Based on that information, the State filed its pretrial motion to exclude Dr. Page’s testimony. In response, Walker provided an offer of proof, stating:
Dr. Page has conducted an assessment of Walker and will testify that his findings are as follows: Walker’s profile is that he is not sexually interested in school-age males or females, or preschool age males or females. Dr. Page wi[ll] further testify that Walkershows not [sic] no signs of psychopathology or personality pathology. And so Dr. Page, as he will testify, makes no therapeutic recommendations for Walker’s case.
Based on the parties’ arguments and Walker’s proffer, the District Court excluded Dr. Page’s testimony. The parties’ arguments focused exclusively on the admissibility of Dr. Page’s testimonythat “Walker’s profile” does not fit the class of offenders identified as pedophiles. The parties did not dispute Dr. Page’s status as an expert witness and Walker shared no information with the District Court about the scientific methods by which Dr. Page performed the evaluation.
15
instead would have simply offered a “clinical finding that, in his professional opinion,
Walker’s psychosexual traits include no sexual interest in...children.” Walker contends
Dr. Page’s evaluations of Walker’s psychosexual characteristics would have assisted the
jury in determining a fact in issue—whether Walker knowingly had sexual contact with
either victim. The State argues that, instead of helpingthe jury, Dr. Page’s testimony would
haveinvadedits province by improperly bolstering Walker’s credibility.
¶29 In his oral argument before this Court, Walker distinguished between
“characteristics” and “character traits,” reasoning that Dr. Page would have commented
only on Walker’s “characteristics,” not on his “character traits.” Walker specifically stated
during argument that he was not advancing Dr. Page’s testimony as character evidence
pursuant to M. R. Evid.404(a)(1), which allows an accused to offer evidence of a pertinent
character trait. Instead, Walker argues his psychosexual profile evidence should be
admitted pursuantto M. R. Evid. 702.3
¶30 We view the evidence offered by Walker—that based on interviews and
psychological testing, he does not fit the profile of a person sexually interested in
children—ascomparable to Walker’s attemptto admit the results of a favorable polygraph
test, which is also administered and interpreted by an expert. Evidence of favorable
3 Although we do not rely upon it for our decision, we also observe that the literature discussing the many methods of psychological assessment used to evaluate sex offenders indicates that there is no psychological test or combination of tests that can determine whether a person has engaged or will engage in deviant sexual activity. State v. Parkinson, 909 P.2d 647, 651 n.1 (Idaho Ct. App. 1996) (citing Myers et al., Expert Testimony in Child Abuse Litigation, 68 Neb. L. Rev. 1, 139, 143-44 (1989); William D. Murphy and James M. Peters, Profiling Child Sexual Abusers, Psychological Considerations, 19 CRIMINAL JUSTICE AND BEHAVIOR24 (1992)).
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polygraph test results addresses the truthfulness of a witness, a determination exclusively
within the province of the fact finder at trial. Similarly, a clinical finding by Dr. Page that,
in his professional opinion, “Walker’s profile is that he is not sexually interested in
school-age males or females, or preschool age males or females” is scientific evidence
supporting the notion that because Walker does not fit a profile of a pedophile he must be
innocent of the sexual assaults. Both are attempts to bolster the credibility of a witness;
bothspeak directly to the guilt or innocence of the defendant; and bothinvadethe exclusive
province of the jury to judge credibility and the guilt or innocence of the accused.
¶31 Our precedent addressing the admissibility of profile evidence consists primarily
of three cases: State v. Bailey, 2004 MT 87, 320 Mont. 501, 87 P.3d 1032; State v. Spencer,
2007 MT 245, 339 Mont. 227, 169 P.3d 384; and State v. Passmore, 2010 MT 34,
355Mont. 187, 225 P.3d 1229. We address each, and examine them in the context of Dr.
Page’s proffered testimony.
¶32 In Bailey, the State charged Bailey with incest for sexually assaulting his
step-daughters. Bailey, ¶9. Before his trial, Bailey underwent a psychosexual evaluation
with Dr. Scolatti. Bailey, ¶35. Thereafter, Bailey sought to have Dr. Scolatti testify at his
trial regarding the evaluation’s results and Dr. Scolatti’s opinion of the results. Bailey,
¶ 35. The district court excluded Dr. Scolatti’s testimony and we affirmed on appeal,
noting that Bailey offered Dr. Scolatti’s testimony to bolster his own claim that he did not
commit the alleged offenses. Bailey, ¶38. We reasoned:
Expert testimony offered to bolster the credibility of a party and his or her claims is improper because it invades the province of the jury by “placing a
17
stamp of scientific legitimacyon a victim’s allegations, or by dismissing the validity of the allegations.”
Bailey, ¶ 38 (quoting Benjamin v. Torgerson, 1999 MT 216, ¶ 40, 295 Mont. 528,
985P.2d734) (emphasis added).
¶33 In this case, the State urged the District Court to find that Bailey controlled,
commenting that “[t]he only purpose to Dr. Page’s testimony is to present the outcome of
the testing and his opinion of [Walker’s] potential to be a sex offender—in other words, to
attempt to bolster [Walker’s] credibility.” The District Court agreed with the State,
determining that Dr. Page’s testimony in Walker’s case was akin to Dr. Scolatti’s testimony
in Bailey. For that reason, the court excluded the profileevidence, remarking on “Walker’s
artful attempt to argue that he does not seek to offer such evidence to bolster his credibility,
but rather to undermine the State’s theory that he committed the crimes with which he
[was] charged.”
¶34 We agree with the District Court that, as in Bailey where Dr. Scolatti’s testimony
would have improperly bolstered Bailey’s own claim that he did not commit the alleged
offenses, Dr. Page’s testimony would have improperly bolstered Walker’s own claim that
he did not commit the alleged offenses. SeeBailey, ¶38. Bolstering a witness’s testimony
with profile evidence is inappropriate because it invades the province of the jury, as the
jury alone is responsible for weighing the witnesses’ credibility. See M. R. Evid. 608
(providing that a witness’s credibility may be supported with evidence of his truthful
character “only after the character of the witness for truthfulness has been attacked....”).
Admitting the profile evidence would have invaded the province of the jury by“placing a
18
stamp of scientific legitimacy” on Walker’s denial of the victims’ accusations.
SeeBailey,¶38.
¶35 In Spencer, the State charged Spencer with two counts of sexual intercourse without
consent for sexually assaulting his daughter and stepdaughter. Spencer, ¶¶ 6, 9. Spencer
underwent a psychosexual evaluation with Dr. Scolatti and subsequently sought to
introduce Dr. Scolatti’s testimony at trial that “Spencer lacked the diagnostic criteria of a
pedophile.” Spencer, ¶¶ 10, 35. Spencer sought to admit Dr. Scolatti’s testimony to
“generally rebut the mental states of purposely and knowingly”; he argued “that because
he was diagnosed as not being a pedophile, he could not have the requisite intent” to
commit the crimes. Spencer, ¶38.
¶36 The district court excluded Dr. Scolatti’s testimony, stating that “the testimony was
distinctly not about [Spencer’s] mental condition but about his not being a member of a
diagnostic group -- pedophiles.” Spencer, ¶38 (internal quotations omitted). The district
court reasoned that Spencer lacking the diagnostic criteria of a pedophile “was less a
diagnosis of mental condition” and more a commentary regarding whether Spencer “was
or was not includable in that grouping called pedophiles and thus whether he could or could
not exhibit behaviors of members or non-members of that class.” Spencer, ¶ 38. The
district court concluded that Spencer’s mental state was “a matter for the province of the
jury.” Spencer, ¶ 38. We affirmed the district court’s rationale and its exclusion of Dr.
Scolatti’s testimony. Spencer, ¶ 39. We added that “we question the relevance of Dr.
Scolatti’s testimony and whether it could have assisted the trier of fact.” Spencer, ¶ 39.
We concluded that “whatever relevance Dr. Scolatti’s testimony may have possessed, the
19
dangers of confusing the issues or misleading the jury substantially outweighed its
probative value, and thus it ran afoul of M. R. Evid. 403.” Spencer, ¶ 41.
¶37 In this case, Walker sought to introduce profile evidence bearing remarkable
resemblance to the testimony by Dr. Scolatti that Spencer sought to introduce. Dr. Page
would have testified that Walker’s psychosexual profile demonstrated Walker had no
sexual interest in children; essentially, that Walker “lacked the diagnostic criteria of a
pedophile.” See Spencer, ¶ 35. Similar to Dr. Scolatti’s testimony in Spencer, Dr. Page
would have stated that Walker was not a member of a group of individuals who fit a
specific profile. That information would lead the jury to conclude Walker could not
possess the mental state to sexually abuse children. See Spencer, ¶38.
¶38 In Passmore, Passmore disclosed his intention to call sex-offender evaluator
Michael D. Sullivan, MSW, “to testify as an expert witness in the instant case, inasmuch
as Mr. Sullivan conducted an evaluation of Mr. Passmore, which revealed that he does not
have the characteristics of a sex offender as a result of an extensive assessment.”
Passmore, ¶67. Passmore sought to admit the testimony pursuant to M. R. Evid. 404(a)(1),
which allows an accused to offer evidence of a pertinent character trait, and M. R. Evid.
405(a), 702, and 704. Passmore, ¶ 68. Passmore explained he was not offering the
testimony for purposes of bolstering his own credibility. Passmore, ¶ 68. The State
responded that “sex-offender profile testimony” was generally inadmissible in other
jurisdictions and that the evidence was otherwise inadmissible pursuant to Spencer.
Passmore, ¶¶71-72.
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¶39 After discussing the extrajurisdictional cases and Spencer, this Court held “that
there is neither a per se rule requiring admission, nor a per se rule requiring exclusion, of
evidence that a defendant does not possess (or does possess) the character traits of a sex
offender.” Passmore, ¶ 73. We explained that “admissibility depends on a careful
application of M. R. Evid. 403, 404(a)(1), 405(a), and 702.” Passmore, ¶ 73. However,
we concluded that Passmore failed to provide a record which would allow admission of
expert testimony pursuant to M. R. Evid. 702, and we agreed that the district court “was
well within its discretion in concluding that on the facts here, any probative value
Sullivan’s testimony may have had was substantially outweighed by the danger of
confusing the issues or misleading the jury.” Passmore, ¶ 73 (citing M. R. Evid. 403;
Spencer, ¶41).
¶40 In Passmore, Sullivan would have testified that Passmore did not have the
“characteristics” of a sex offender. Passmore, ¶67. Here, Dr. Page would have similarly
testified that Walker did not have the characteristics of someone who is sexually attracted
to children. Sullivan’s and Dr. Page’s testimony constitutes the same type of evidence:
profile evidence. In Passmore, we held that admissibility of profile evidence depends on
a careful application of M. R. Evid. 403, 404(a)(1), 405(a), and 702. Passmore, ¶ 73.
Significantly, however, we did not address the effect of admitting profile evidence
like we did in Bailey and Spencer. We take this opportunity to explain the inherent
problem—recognized in Baileyand Spencer,but not addressed inPassmore—that arisesif
profile evidence is submitted to the jury: evidence that a defendant does or does not fit
within a class of offenders impermissibly bolsters the defendant’s claim of innocence and
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improperly invades the province of the jury in determining the defendant’s guilt or
innocence. See Bailey, ¶ 38; Spencer, ¶ 41. Apart from the careful application of
M. R.Evid. 403, 404(a)(1), 405(a), and 702 required in Passmore, it is still a requirement
that the evidence not impermissibly bolster the defendant’s claim of innocence or invade
the province of the jury to decide guiltor innocence. Here,Dr. Page’s clinical finding that,
in his professional opinion, Walker did not fit the statistical profile of a pedophile is
inadmissible because it related directly to the question of whether Walker was or was not
apedophilecapable of committing the crimes for which he was charged.
¶41 If profile evidence excluding the defendant from a class of persons known to have
certain characteristicsis presented to the jury, the jury is essentially asked toconcludethat
the defendant could not have committed the offense because he does not share certain
characteristics with people who are known to have committed that same offense. In this
case, Dr. Page would have testified that, based on Walker’s psychosexual test results,
Walker does not fit into a class of people sexually attracted to children. From this expert
testimony opining that Walker’s profile is not one of a pedophile flows the inevitable
conclusion that, therefore, Walker could not have sexually abused the underage victims.
Thus,profile evidence invades the province of the jury in determining the defendant’s guilt
or innocence and impermissibly bolsters a defendant’s claim of innocence. See Spencer,
¶41; Bailey, ¶ 38. Accordingly, while a “careful application of M. R. Evid. 403, 404(a)(1),
405(a), and 702” is required, Passmore, ¶73, the evidence is nonetheless inadmissible if it
impermissibly invades the province of the jury. Finally, as in Passmore, where there was
no record supporting admission of expert testimony pursuant to M. R. Evid. 702, Walker
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specifically states he is not seeking admission pursuant to M. R. Evid. 404(a)(1).
Accordingly, thecareful application of the relevant evidentiary rules required by Passmore
cannot be made, even had Dr. Page’s profile testimony not invaded the province of the
jury.
¶42 Importantly, profile evidence like Dr. Page’s testimony that Walker does not fit
within a class of pedophiles, is, for example, distinguishable from expert testimony on
battered woman syndrome. Expert testimony on battered woman syndrome is limited to
how women with the syndrome act and behave. State v. Hess, 252 Mont. 205, 210-14,
828P.2d 382, 386-88(1992). The expert testifies about consistencies between other abuse
victims who have battered woman syndrome and the behavior of the particular woman.
The purpose of the testimony is to explain the woman’s behavior that the jury may construe
as inconsistent with that of an actual abuse victim. The testimony therefore assists the jury
in understanding the woman’s actions. Dissimilarly, specific profile evidence, like that
Dr.Page would have testified to, relatesto psychological tests taken by a defendant as part
of the defendant’s preparation for trial in the criminal action. Dr. Page’s testimony would
paint Walker’s psychosexual profile as that of someone who is not sexually attracted to
children, rather than help the jury understand aspects of Walker’s behavior.
¶43 Primarily, the distinction rests on whether the testimony is offered to assist the jury
with understanding a fact at issue or whether it impermissibly bolsters a defendant’s claim
of innocence. Dr. Page’s testimony concerned test results—which established that,
scientifically, Walker does not fit into a class of offenders who are sexually interested in
children. The testimony would lead the jury to inevitably conclude that because Walkeris
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not sexually interested in children, he is credible and believable; and that,because Walker
is not sexually interested in children,he is not guilty. However, the jury, and not Dr. Page,
had the responsibility of determining whether Walker knowingly engaged in sexual contact
with the victims. Dr. Page’s testimonywas based onpsychosexual test results opining that
Walker is not disposedtowards beinga member of a class of pedophiles. Being statistically
excluded from a class of offenders based on test results is distinguishable from expert
testimony offered to help the jury understand a fact at issue. The former instructs the jury
that a defendant it not guiltybased on testing. The latter may be admissible after a careful
application of M. R. Evid. 403, 404(a)(1), 405(a), and 702. Passmore, ¶73.
¶44 To support his argument on appeal, Walker attempts to draw similarities between
the circumstances of his case and those of State v. Mason, 283 Mont. 149, 154-55,
941 P.2d 437, 441 (1997). In Mason, the district court permitted the State to admit
testimonyfrom the victim’s mental health counselors. At trial, the counselors testifiedthat
they observed the victim exhibit certain “behavioral characteristics, such as depression,
guilt, and anger, which are symptomatic of sexual abuse victims.” Mason, 283 Mont. at
155, 941 P.2d at 441. The district court specifically prohibited the counselors from
testifying about the victim’s credibility. Mason, 283 Mont. at 155, 941 P.2d at 441. We
concluded the district court did not abuse its discretion in admittingthe evidence because
the counselors’ testimony “set forth the counselors’ personal observations regarding [the
victim’s] behavior, which was relevant to the issue of whether the offenses charged actually
occurred. This in turn was relevant to the jury’s determination of whether
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[thedefendant]...committed the offenses charged.” Mason, 283 Mont. at 155, 941P.2dat
441.
¶45 Walker’s case is readily distinguishable from Mason. In Mason, the counselors
testified as to their personal observations of the victim’s behavior and observed that, in
their experience, those behaviors are symptomatic of sexual abuse. Mason,
283Mont.at155, 941 P.2d at 441. Much like the evidence in Hess, the observationswere
therefore relevant to assist the trier of fact in understanding why the victim would exhibit
particular symptoms and to determine whether the offense occurred—a fact in issue.
Mason, 283 Mont. at 155, 941 P.2d at 441. An expert may testify in a child sexual offense
case regarding typical and relevant symptoms of child sexual abuse for the sole purpose of
explaining a victim’s specific behavior that might be incorrectly construed by the jury as
inconsistent with sexual abuse or that may establish consistencies between the behavior of
the particular victim and other victims of child sexual abuse to rebut an attack on the
victim’s credibility.
¶46 Here, Dr. Page’s proposed testimony comes too close to constituting testimony that
Walker is not a sex offender, testimony vouching for Walker’s veracity, and testimony that
Walker is not guilty. In contrast to acceptable testimony pursuant to Masonand Hess, Dr.
Page’s testimony would not be explaining Walker’s behavior, nor would he be testifying
regarding consistencies or inconsistencies in behavior between known sex offenders and
Walker; rather, the focus of Dr. Page’s testimony would be on test results. Dr. Page would
have extrapolated data or information from psychological testing conducted on known
sexual offendersand compared his extrapolation to Walker’s test results. This is different
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from reliance on actual life events and activities—i.e., patterns of actual behavior. Our
decision today does not foreclose an expert from testifying about the behavior and patterns
of others in similar circumstances, as substantiated by scientifically collected data, to help
explain the defendant’s actionsto the juryin the case before the trial court. However, that
is not what Dr. Page would dohere. He would not explain Walker’s actions and the actions
and patterns of known sex offenders, but would instead compare Walker’s psychosexual
test results to the results of known sex offenders. We are not prohibiting a comparison of
behaviors to assist the jury in determining a fact at issue; we are, however, prohibiting a
comparison of test results. SeePeople v. Dobek, 732 N.W.2d 546, 573-74 (Mich. Ct. App.
2007).
¶47 As a final observation, we must note thatother jurisdictions almost universally reject
the introduction of expert testimony regarding whether a defendant fits a sexual offender
profile. See United States v.St. Pierre, 812 F.2d 417, 420(8th Cir. 1987); State v. Hulbert,
481 N.W.2d 329, 331-33 (Iowa 1992); Pendleton v. Commonwealth, 685 S.W.2d 549,
553-54 (Ky. 1985); State v. Campbell, 904 S.W.2d 608, 616 (Tenn. Crim. App. 1995);
Gilstrap v. State, 450 S.E.2d 436, 437 (Ga. Ct. App. 1994); People v. Edwards,
586 N.E.2d 1326, 1331 (Ill. App. Ct. 1992); State v. Elbert, 831 S.W.2d 646, 647-48
(Mo.Ct. App.1992); People v. Berrios, 568 N.Y.S.2d 512, 514(N.Y. Sup. Ct. 1991); State
v. Armstrong, 587 So. 2d 168, 170 (La. Ct. App. 1991); State v. Person, 564 A.2d 626,
631-32 (Conn. App. Ct. 1989); State v. Gallup, 779 P.2d 169, 171 (Or. Ct. App. 1989);
State v. Fitzgerald, 382 N.W.2d 892, 894-95 (Minn. Ct. App. 1986); Williams v. State,
649 S.W.2d 693, 695-96 (Tex. Ct. App. 1983). Courts give various reasons for rejecting
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of this type of evidence, includingthat it has not gained general acceptance in the scientific
community, it invades the province of the jury, it unfairly prejudices the prosecution, and
it does not assist the trier of fact in understanding the evidence or determining a fact in
issue.
¶48 The District Court did not abuse its discretion when it excluded Dr. Page’s
testimony. Dr. Page’s testimony would have improperly bolstered Walker’s claim of
innocence and invaded the province of the jury to determine Walker’s innocence. While,
as we held in Passmore, a court’s decision regarding the admissibility of scientific test
results offered by an accused pertaining to either his “character” or “characteristics”
requires a careful application of M. R. Evid. 403, 404(a)(1), 405(a), and 702, the evidence
may not invade the province of the jury, as we held in Spencer and Bailey. Based on
Walker’s proffer that he sought to admit evidence of testing which would indicate he was
not a member of a particular class of individuals sexually attracted to children, we conclude
the evidence was inadmissible because it impermissibly bolstered Walker’s claim that he
was innocent, thus invading the jury’s province to determine his guilt or innocence. We
accordingly affirm the District Court’s exclusion of Dr. Page’s testimony.
¶49 3. Did the District Court correctly apply Montana’s Rape Shield Law, §45-5-511(2), MCA, to exclude evidence of a victim’s alleged prior sexual conduct?
¶50 Walker planned to have Wood testify about an incident involving alleged sexual
contact between R.W.and athree-year-old. Wood would have testified about a time when
she found the two girls lying in bed together. When Wood noticed the girls, R.W. jumped
out of bed and ran away. Wood asked the three-year-old what was going on, and she
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responded that R.W. was touching her “hoo-hoo,” the family term for private parts. She
told Wood that R.W. said it would feel good. Wood told Laura and the two of them asked
R.W. about the incident. R.W. responded that her older sister, B.W., introduced her to
sexual activity. Walker wanted Wood’s testimony admitted because he believed R.W.’s
past sexual conduct demonstrated her sexual awareness. He reasoned the evidence
supported his theory that R.W. acted out in a sexual manner on the morning of February
14, 2015. Walker asserted the information would have aided the jury in evaluating the
conflicting testimony before it.
¶51 The State requested the District Court exclude Walker’s proffered testimony,
relying on § 45-5-511(2), MCA, Montana’s Rape Shield Law. After hearing argument
from each side, the District Court granted the State’s motion. On appeal, Walker argues
the District Court inappropriately mechanically applied the Rape Shield Law with no
regard for Walker’s constitutional rights. The State responds, contending the District Court
did not mechanically apply the Rape Shield Law because, before excluding the evidence,
the court heard argument from each side and considered precedent.
¶52 During criminal prosecutions of sexual crimes, Montana’s Rape Shield Law
generally precludes any “[e]vidence concerning the sexual conduct of the victim.”
Section45-5-511(2), MCA.4 The statute is designed to prevent the defendant’s trial “from
becoming a trial of the victim’s prior sexual conduct” and to protect victims from
4 There are two narrowly-drawn exceptions to the general rule: parties may present evidence of “the victim’s past sexual conduct with the offender” and “evidence of specific instances of the victim’s sexual activity to show the origin of semen, pregnancy, or disease that is at issue in the prosecution.” Section 45-5-511(2), MCA. Neither exception is at issue here.
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“harassing orirrelevant questions concerningtheir past sexual behavior.” State v. Colburn,
2016 MT 41, ¶22, 382Mont. 223, 366 P.3d 258 (citing State v. Anderson, 211 Mont. 272,
283, 686 P.2d 193, 199 (1984); State v. Higley, 190 Mont. 412, 422, 621 P.2d 1043,
1050-51 (1980); Michigan v. Lucas, 500 U.S. 145, 146, 111 S. Ct. 1743, 1745 (1991)).
¶53 The Rape Shield Law exists in tension with a defendant’s constitutional rights to
confront his accuser and to present evidence in his own defense. Colburn, ¶24 (citing U.S.
Const. amend. VI; Mont. Const. art. II, § 24; State v. MacKinnon, 1998 MT 78, ¶33, 288
Mont. 329, 957 P.2d 23; State v. Johnson, 1998 MT 107, ¶ 22, 288 Mont. 513,
958 P.2d 1182). However, neither the Rape Shield Law nor the defendant’s rights to
confront his accuser and present evidence are absolute. State v. Aguado, 2017 MT 54, ¶33,
387 Mont. 1, 390 P.3d 628; Colburn, ¶25; MacKinnon, ¶33; Johnson, ¶¶21-23.
¶54 Accordingly,a court may not arbitrarily or mechanically applythe Rape Shield Law
to exclude evidence; instead, itmust strike a balance between the victim’s rights under the
Rape Shield Law and the defendant’s constitutional rights. Colburn, ¶25. As it balances
those interests, the trial court should “require that the defendant’s proffered evidence is not
merely speculative or unsupported.” Aguado, ¶ 33 (quoting Colburn, ¶ 25, and citing
Johnson, ¶24; State v. Lindberg, 2008 MT 389, ¶56, 347 Mont. 76, 196 P.3d 1252); see
also State v. Awbery, 2016 MT 48, ¶20, 382 Mont. 334, 367 P.3d 346. The court should
apply M. R. Evid. 401, 402, and 403 in considering whether the evidence is relevant and
probative, whether the evidence is merely cumulative of other admissible evidence, and
whether the probative value of the evidence is outweighed by its prejudicial effect.
Colburn, ¶25; see also Aguado, ¶33. Trial courts balance the interests with the intent to
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“ensure a fair trial for the defendant while upholding the compelling interest of the Rape
Shield Law in preserving the integrity of the trial and keeping it from becoming a trial of
the victim.” Aguado, ¶33 (quoting Colburn, ¶25).
¶55 A district court may not mechanically or arbitrarily apply the Rape Shield Law to
unequivocally bar all evidence concerning a victim’s past sexual conduct. See Colburn,
¶25. For example, in Colburn, an eleven-year-old victim underwent a forensic interview
during which she made detailed statements indicating Colburn sexually abused her.
Colburn, ¶¶10-11. At trial, Colburn sought to introduce evidence that the victim’s father
was convicted of sexually abusing the victim. Colburn, ¶ 20. Colburn’s defense theory
was that the victim fabricated her allegations against himand he therefore sought to admit
the evidence to demonstrate that the victim’s detailed knowledge of sexual abuse stemmed
from abuse inflicted by her father, not from abuse inflicted by him. Colburn, ¶ 20. The
district court excluded the evidence. Colburn, ¶21. We concluded the district court did
so in error because it mechanically applied the Rape Shield Law when it failed to balance
Colburn’s constitutional rights with the victim’s rights under the Rape Shield Law.
Colburn, ¶¶ 29-30. Importantly, we noted the evidence—that the victim’s father was
convicted of sexually assaulting her—was “neither speculative nor unsupported.”
Colburn, ¶25. We remanded the case for a new trial. Colburn, ¶30.
¶56 We conclude that the District Court did not mechanically apply the Rape Shield
Law because it appropriately weighed the parties’ competing interests before excludingthe
evidence of R.W.’s past sexual conduct. When the State requested the District Court
exclude the evidence, it argued the alleged incident was neither relevant to nor probative
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of whether Walker sexually assaulted R.W. on February 14, 2015. TheState distinguished
Colburn, where the Rape Shield Law did not apply because the victim disclosed sexual
abuse by more than one person, and arguedthe Rape Shield Law should apply in Walker’s
case becauseR.W. never disclosed sexual abuse by anyone other than Walker.
¶57 The District Court inquired further, asking more about the evidence of R.W.’s
sexual conduct at issue. I t questioned, “Well, is there any evidence anything even
happened?” The State responded that the evidence consisted solely of Wood’s hearsay
statement of what the three-year-old said to her. The court further asked whether the
three-year-old was interviewed about the incident and whether there was any physical
evidence, both of which the State answered in the negative. The District Court then gave
Walker the opportunity to explain why he thought the evidence should be admitted. Walker
explained that he wanted to use the incident to demonstrate R.W.’s knowledge of and
exposure to sexual matters. The court followed up with multiple questions, to which
Walker responded.
¶58 After considering the parties’ arguments, the District Court excluded the evidence
pursuant to the Rape Shield Law. The District Court told the parties that it would, however,
reconsider the issue if presented with different information. Walker thanked the court for
its willingness to reconsider the issuebut never followedup with further argument. Review
of the record demonstrates that the District Court performed a thorough inquiry and
appropriately balanced R.W.’s rights under the Rape Shield Law with Walker’s
constitutional rights. SeeColburn, ¶25. Because the District Court diligently considered
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the evidence at issue and weighed the parties’ competing interests, we conclude it did not
mechanically apply the Rape Shield Law to exclude evidence of R.W.’s sexual conduct.
¶59 Further, we note that there was no clear evidence of the prior incident—Walker’s
proffered evidence of R.W.’s sexual conduct was speculative and unsupported.
SeeAguado, ¶34; Awbery, ¶22. He sought to present Wood’s hearsay testimony of what
the three-year-old told her happened and what the three-year-old said R.W. said. The
probative value of Walker’s proffered, unsupported evidence would not have been
substantially outweighed by its prejudicial effect. See Colburn, ¶ 25; M. R. Evid. 403
(“Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice . . . .”). District courts have the power and
responsibility to manage the defendant’s evidence to prevent “sordid probes into a victim’s
past sexual conduct.” Colburn, ¶ 28 (quoting Anderson, 211 Mont. at 284,
686 P.2d at 200). The type of evidence Walker sought to admit is precisely the type of
probe into R.W.’s past sexual conduct thatthe Rape Shield Law was designed to exclude,
and Walker failed to demonstrate that his constitutional rights outweigh R.W.’s rights
under the Rape Shield Law. The District Court correctly applied Montana’s Rape Shield
Law to exclude evidenceregarding R.W.’s sexual conduct.
Outcome: The District Court did not abuse its discretion when it excluded Walker’s polygraph evidence or when it excluded evidence pertaining to Walker’s psychosexual profile. We further conclude that the District Court correctly balanced Walker’s and the victim’s competing interests when itapplied Montana’s Rape Shield Law, §45-5-511(2), MCA, to exclude evidence of the victim’s alleged prior sexual conduct. Walker’s conviction is affirmed.
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