Rule 412:The Rape Shield

Rule

How does Rule 412(a) change Rule 404?

• Mercy Rule

–R 412 prevents D from offering Victim propensity evidence.

• 404(b)

–R 412 prevents use of prior victim conduct (“prior sexual behavior) even if it is not being used for propensity.

What are the “Criminal Case Exceptions” under Rule 412(b)(1)?

• (A) Other source of physical evidence;

• (B) Consent (Narrow);

• (B) Offered by the prosecution (Indecipherable); and

• (C) Constitutionally required.

(A) Other source of physical evidence:

• Specific acts

• To show alternative source of:

–Physical evidence, such as

• Semen, or

• Injury

(B) Consent:

• Specific acts

•With the accused• To show consent

(B) Offered by the Prosecution:

• Specific acts

• With the accused

•Offered by the prosecutor

(C) Constitutionally Required

Any evidence that it would be

unconstitutional to exclude

What is the “Civil Case Exception”?

• Sexual

–Behavior, or

–Predisposition

• If

–Otherwise admissible, and

–Passes Special Balancing Test

• But

–No reputation

–Unless victim opens the door

1

2

3

4

5

Admit

Admit

Admit

Admit

Exclude

403 Balancing

1

2

3

4

5

Admit

Exclude

Exclude

Exclude

Exclude

Special 412 Balancing

1

2

3

4

5

Admit

Admit

Admit

Admit

Exclude

Regular 403 Balancing

Exclude

Exclude

Special 412

Balancing

Exclude

Factors in the 403 Balance

Prejudicial Effect

Waste of Time

Risk of Confusion

Probative Value

Probative Value Prejudicial Effect

Waste of Time

Risk of Confusion

Other Harm to the Victim

New Factor in the 412 Balance

Rule 403 reflects a

strong preference

for admission

Rule 412 reflects a

strong preference

for exclusion

with weight given to

harm to V