Rule 412: The Rape Shield Rule

1. Rule 412: The Rape Shield Rule

2. 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.

3. 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.

4. (A) Other source of physical evidence:

• Specific acts
• To show alternative source of:
–Physical evidence, such as
• Semen, or
• Injury

5. (B) Consent:

• Specific acts
•With the accused
• To show consent

6. (B) Offered by the Prosecution:

• Specific acts
• With the accused
•Offered by the
prosecutor

7. (C) Constitutionally Required

Any evidence that
it would be
unconstitutional to
exclude

8. 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

9. 403 Balancing

1 Admit
4 Admit
3 Admit
2 Admit
5 Exclude

10. Special 412 Balancing

1 Admit
4 Exclude
3 Exclude
2 Exclude
5 Exclude

11. Regular 403 Balancing

Special
Regular
403
412
Balancing
Balancing
1 Admit
Admit
4 Exclude
Admit
3 Exclude
Admit
2 Exclude
5 Exclude

12. Factors in the 403 Balance

Risk of Confusion
Waste of Time
Probative Value
Prejudicial Effect

13.

New Factor in
the 412 Balance
Other Harm to the
Victim
Risk of Confusion
Waste of Time
Probative Value
Prejudicial Effect

14. Rule 403 reflects a

strong preference
for
admission

15. Rule 412 reflects a

strong preference
for
exclusion
with weight given to
harm to V