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

Admit Exclude 403 Balancing

Admit Exclude Special 412 Balancing

Admit Exclude Regular 403 Balancing Exclude Special 412 Balancing Exclude

Factors in the 403 Balance Prejudicial Effect Waste of Time Risk of Confusion 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