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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.

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Presentation on theme: "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."— Presentation transcript:

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 Admit Exclude 403 Balancing

10 Admit Exclude Special 412 Balancing

11 Admit Exclude Regular 403 Balancing Exclude Special 412 Balancing Exclude

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

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

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


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