(2) In any criminal prosecution under sections 18-3-402 to 18-3-405.5, 18-6-301, 18-6-302, 18-6-403, and 18-6-404, or for attempt or conspiracy to commit any crime under sections 18-3-402 to 18-3-405.5, 18-6-301, 18-6-302, 18-6-403, and 18-6-404, if evidence, that is not excepted under subsection (1) of this section, of specific instances of the victim's or a witness' prior or subsequent sexual conduct, or opinion evidence of the victim's or a witness' sexual conduct, or reputation evidence of the victim's or a witness' sexual conduct, or evidence that the victim or a witness has a history of false reporting of sexual assaults is to be offered at trial, the following procedure shall be followed:
(a) A written motion shall be made at least thirty days prior to trial, unless later for good cause shown, to the court and to the opposing parties stating that the moving party has an offer of proof of the relevancy and materiality of evidence of specific instances of the victim's or witness' prior or subsequent sexual conduct, or opinion evidence of the victim's or witness' sexual conduct, or reputation evidence of the victim's or witness' sexual conduct, or evidence that the victim or witness has a history of false reporting of sexual assaults that is proposed to be presented.
(b) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.
© If the court finds that the offer of proof is sufficient, the court shall notify the other party of such and set a hearing to be held in camera prior to trial. In such hearing, the court shall allow the questioning of the victim or witness regarding the offer of proof made by the moving party and shall otherwise allow a full presentation of the offer of proof including, but not limited to, the presentation of witnesses.
(d) An in camera hearing may be held during trial if evidence first becomes available at the time of the trial or for good cause shown.
(e) At the conclusion of the hearing, if the court finds that the evidence proposed to be offered regarding the sexual conduct of the victim or witness is relevant to a material issue to the case, the court shall order that evidence may be introduced and prescribe the nature of the evidence or questions to be permitted. The moving party may then offer evidence pursuant to the order of the court.
[Source: Lexis.com]
Had the Colorado legislature intended the law to apply at preliminary hearings, it would have said so. As an example, Virginia's rape shield law [Va. Code Ann. § 18.2-67.7] includes this provision:
Evidence described in subsections A and B of this section shall not be admitted and may not be referred to at any preliminary hearing or trial until the court first determines the admissibility of that evidence at an evidentiary hearing to be held before the evidence is introduced at such preliminary hearing or trial.
Ohio also specifically mentions preliminary hearings in its rape shield law (ORC Ann. 2907.02 ):
(E) Prior to taking testimony or receiving evidence of any sexual activity of the victim or the defendant in a proceeding under this section, the court shall resolve the admissibility of the proposed evidence in a hearing in chambers, which shall be held at or before preliminary hearing and not less than three days before trial, or for good cause shown during the trial.
Again, the Colorado statute imposes no duty of advance notice to the Court of a defendant's intent to introduce evidence of the accuser's prior or subsequent sexual activity at a preliminary hearing.
There are 362 state cases discussing sex offenses and rape shield laws that also mention "preliminary hearing." We were surprised how many of these cases referred to the accuser's testimony at a preliminary hearing. Again, listening to the former prosecutors on televsion news networks, you'd think they never have to testify.
In a Connecticut case, State v. Molnar, 79 Conn. App. 91 (Conn. App. , 2003), the appeals court criticized the judge for referring to the accuser as a "victim" during the trial.
