In State v. Brackett, the defendant was charged with kidnapping, gross sexual assault, burglary, and criminal threatening with the use of a dangerous weapon. The State of Maine filed an in limine motion to exclude any evidence relating to the victim's past sexual behavior, including evidence that the victim may have been a prostitute sometime prior to the incident in dispute. Although evidence of a victim's past sexual behavior is generally inadmissible. The State appealed. A divided Maine Supreme Judicial Court, sitting as the Law Court, declined to rule on the merits of the appeal, holding that the appeal was “premature” because the in limine ruling was not a final decision of the trial court. Two justices dissented, arguing that the in limine ruling did pose a reasonable likelihood of causing serious impairment to the prosecution's case, bringing it within the parameters of the Appeals Statute, and making the appeal an appropriate one to be considered. This Note examines the tension between section 2115-A(1), which provides the State with a right under circumstances such as those presented in Brackett to appeal pre-trial orders in criminal cases, and the Law Court's decision that said, in effect, that no such right exists except in very limited situations. This Note traces the Law Court's treatment of the Appeals Statute in general, and interlocutory appeals brought pursuant to the statute. The Note further examines whether or not the Brackett decision is consistent with the court's early interpretations of the Appeals Statute, and whether narrowing those early interpretations is consistent with the court's initial reading of the State's rights as afforded by the statute. Finally, this Note will suggest changes to the doctrine allowing appeals of only those interlocutory orders that are final in order to provide for greater predictability, while also simultaneously protecting the State's right to appeal and the court's desire to limit the number of interlocutory appeals brought by the State.

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