Rule 412

Question 1

Rule 412(a)

Answer 1

Evidence of sexual behavior or sexual predisposition is not admissible in a civil or criminal proceeding involving sexual misconduct

Exceptions are in part (b)

Sexual behavior is construed broadly; can include verbal evidence

“With respect to” is also construed broadly; includes statements of an expressed intention

If the evidence passes 412, must also pass 403 to be admitted.

Question 2

Rule 412(b)(1)

Answer 2

The court may admit the following evidence in a criminal case:

(A) 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;

(B) 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

(C) evidence whose exclusion would violate the defendant’s constitutional rights.

Question 3

Rule 412(b)(2)

Answer 3

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.

Victim must place victim’s reputation in controversy for this to apply

Not a two-way street because 412 protects the victim.