Lawyers for actor Scott Bairstow are trying to bar a tape recording being
used against him in a rape case, claiming it was wrongly obtained.
Defence lawyer MARK MESTEL insists there is a problem with the
documentation used to get permission to record a conversation between the PARTY
OF FIVE star and the girl he is accused of raping, saying it contains
"misstatements or omissions of
material facts". He has filed a request for a hearing on the issue.
Bairstow, 33, was charged in May (03) with second-degree child rape.
According to court papers, the girl claims he had sex with her in 1998, when
she was 12, and three other times, the last in 2001.
The court order in question allows taping of a phone conversation with
only the girl's consent, whereas normally both parties' agreement would be
required. Mestel argues the affidavit did not establish probable cause, police
failed to show the
taping was necessary for the investigation, and the girl misled police by
saying she had told a friend about the sex.
According to the court documents, the tape includes the girl saying she
was considering telling somebody about their relationship.
Bairstow's response, quoted earlier by deputy prosecutor JANICE ALBERT,
was, "Well... I'm a dad and I've got a job, and if you were to tell anyone, I
would be thrown in jail for 10 years."
The recording is important to the case and was properly obtained, insists
deputy prosecutor LISA PAUL, adding, "Obviously, we wouldn't charge something
that we wouldn't think would hold up in court."