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."

10/10/2003 16:32