Rule 412: The Rape Shield Rule

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Rule 412The Rape Shield Rule
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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.

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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.

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(A) Other source of physical evidence

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

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(B) Consent

• Specific acts
• With the accused
• To show consent

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(B) Offered by the Prosecution

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

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(C) Constitutionally Required

• Any evidence that it would be unconstitutional to
  exclude

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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

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403 Balancing
Admit
1
Admit
4
Admit
3
5
Admit
2
10
Special 412 Balancing
Exclude
Admit
1
4
Exclude
3
5
2
Exclude
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Regular 403 Balancing
Special 412 Balancing
Exclude
Admit
1
4
Exclude
3
5
Exclude
Admit
2
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Factors in the 403 Balance
Risk of Confusion
Waste of Time
Probative Value
Prejudicial Effect
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New Factor in the 412 Balance
Other Harm to the Victim
Risk of Confusion
Waste of Time
Probative Value
Prejudicial Effect
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Rule 403 reflects a
preference
strong
for
admission
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Rule 412 reflects a
preference
strong
for
exclusion
with weight given to
harm to V