FRE 412. Sex-Offense Cases: The Victim (Rape Shield Law)
- Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
- evidence offered to prove that a victim engaged in other sexual behavior; or
- evidence offered to prove a victim’s sexual predisposition.
- Exceptions.
- Criminal Cases. The court may admit the following evidence in a criminal case:
- evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
- evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
- evidence whose exclusion would violate the defendant’s constitutional rights.
- Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.
Recall: 404(a)(2)(B) is subject to Rule 412, D can offer “pertinent trait” of V’s character
- Prohibited Uses
- I.E. – if rape case and D tries to bring in evidence that V got around the town to show she probably consented → not getting in
- “Behavior” is evidence that implies sexual conduct
- I.E. – birth control, pregnancy, statements of fantasies, etc.
- Disposition extends to dress, lifestyle, etc.
- Exceptions (to the exception)
- Criminal Cases
- Specific instances of V’s sexual behavior to prove person other than D was the source of semen, injury, or other physical evidence
- Specific instances of V’s sexual history with D if offered by D to prove consent, OR if offered by prosecutor
- (I.E. – pros. Can offer to prove this was continuous assault)
- Evidence whose exclusion would violate D’s constitutional rights
- Olden v. Kentucky, witness bias based on who she was sleeping with
- Civil Cases
- Evidence may be admitted if probative value substantially outweighs unfair prejudice (reverse 403)
- Evidence of victim’s reputation only can be admitted if victim places it in controversy
Rule 413. Similar Crimes in Sexual-Assault Cases
- Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.
- Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.
Rule 414. Similar Crimes in Child Molestation Cases
- Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.
- Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.
- Sexual assault” is the broad category
- I.E. – if on trial for sexual assault, prosecutor can bring in past child molestation crime
- But- if on trial for child molestation → prosecutor can’t bring in past general sexual assault claims
- For this rule and 414, Rule 403 rarely excludes evidence
- Congress wants sick fucks off the street → evidence is coming in
- I.E. – even if charges were dismissed for DNA evidence of another person → good chance it’s getting in
- Probative? Lmaooooooooooooooo
- Not explicit but FRE book says 104(b) rational juror standard is probably applicable for 413 and 414
- These rules are about specific acts
- Thus, can’t bring in with reputation/opinion (unless D opens door)
Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
- Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414.
- Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it to the party against whom it will be offered, including witnesses’ statements or a summary of the expected testimony. The party must do so at least 15 days before trial or at a later time that the court allows for good cause.
- Applies criminal exceptions interchangeably
- I.E. – accused of child molestation in civil case → can bring in general sexual assault history
Remember: 404(a) only barred that evidence for establishing propensity → “other purposes” may make that type of evidence admissible
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