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Rule 412: The Rape Shield Rule

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.

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Rule 412: The Rape Shield Rule

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  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 Exclude Admit 1 Admit 4 Admit 3 5 Admit 2

  10. Special 412 Balancing Exclude Exclude Admit 1 4 Exclude 3 5 2 Exclude

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

  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 preference strong for admission

  15. Rule 412 reflects a preference strong for exclusion with weight given to harm to V

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