As a defense counsel, I’m always looking for ways in which the prosecutor has opened the door to relevant evidence, but which for some reasons has been excluded or can’t be offered. MRE 412 comes to mind, as happened to me at trial in United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011).
But, BUT, as a defense counsel, I’m equally conscious of how I can do something to open the door. I might have successfully litigated a motion in limine to exclude evidence. But now I have the key and have to be careful I don’t give it to the prosecution to use.
There are other ways the defense can open the door to otherwise inadmissible evidence. United States v. Martin just decided by NMCCA is a case in point. Although the appellate court ultimately found the proescutions questions plainly wrong, the damage was done and they court found no prejudice.