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Rape CasesVictims Past Behavior Inadmissible

In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior
or sexual disposition of the alleged victim is generally inadmissible. [Fed. R. Evid. 412(a)]

Exceptions in Criminal Cases


In a criminal case, evidence of specific instances of sexual behavior by the victim offered to prove that a
person other than the accused was the source of semen, injury, or other physical evidence is
admissible. Also, specific instances of sexual behavior between the victim and the accused are admissible
by the prosecution, or by the defense to prove consent. Evidence of a victims sexual behavior is also
admissible when its exclusion would violate the defendants constitutional rights. [Fed. R. Evid. 412(b)(1)]

Exceptions in Civil Cases


In civil cases, evidence offered to prove the sexual disposition or behavior of the alleged victim is
admissible if it is otherwise admissible under the Federal Rules and its probative value substantially
outweighs the danger of harm to the victim and of unfair prejudice to any party. Evidence of an alleged
victims reputation is admissible only if it has been placed in controversy by the victim. [Fed. R. Evid.412(b)
(2)]

Procedure
To offer evidence under the above exceptions, the party must file a motion 14 days before trial describing
the evidence and its purpose, and must serve the motion on all parties and notify the victim. Before
admitting the evidence, the court must conduct an in camera hearing and afford the victim and the parties a
right to be heard. [Fed. R. Evid. 412(c)]

Rape Case Rule 412


1. Exclude
a. Past Sexual Behavior
i. Physical conduct of victim
ii. General Reputation
iii. Opinion Testimony of Victim past sexual conduct
iv. Victim Habits
b. Disposition of Victim
i. Other peoples experience with victim promiscuity
ii. Lifestyle or type of dress
2. Rationale
a. Protect victim sexual privacy by discouraging tendency in rape cases to try the
victim rather than 7
b. Encourage reporting of rape
c. Unreasonable for 7 to base belief of consent on victims past sexual experiences
w/3rd parties
3. Prejudice
a. Aid in truth finding process by excluding unduly inflammatory evidence
b. Evidence of past sexual behavior irrelevant
4. EXCEPTION - Reputation IF - Victim offers
5. EXCEPTION Criminal Admissible - Specific Instances
a. Victim Past Sexual Activity w/Others
i. 7 offers - source of semen, pregnancy, disease, other physical injuries is
by a 3rd party
1. Act must be very close to when 7 incident occurred
ii. Material
1. To show alternative explanation or 3rd party rather than 7 committed physical consequences or rape

b. Victim Past Sexual Activity w/<


i. 7 offer - sexual behavior between 7 and victim to show Consent
1. Can NOT ask about other partners
ii. offers For any reason
iii. Material
1. Establish essential element of current charge or defense
a. 7 - Consent is element of crime for mental state
b. - If 7 claims doesnt know victim or never had sex w/victim
i. To show victim doesnt always claim rape
c. Constitutionally Required
i. If excluding victim sexual behavior or disposition would violate 7 constitutional rights then
evidence admissible
1. 7 has 6th Amend. right, to be confronted w/W against him
a. Avoids CC violation by allowing this exception

ii. 7 offer and cross examine


1. Victim past sexual behavior w/7 and w/others, sexual disposition, false accusations
iii. Material
1. Proof of Bias/Motive of victim
2. To prove essential element of current charge or defense
a. 7 Mental state of Consent
3. Reasonableness of 7s belief of consent
4. Alternate Source of Knowledge
a. Victim child able to know about sexual acts due to prior rape not b/c of 7
6. EXCEPTION Civil Admissible Specific Instances
a. Prior Sexual Behavior and Disposition of Victim IF
i. Reverse Balance Test
1. Probative value must substantially outweigh
a. Danger of unfair prejudice to ANY PARTY or
b. HARM to ANY VICTIM
i. Embarrassment
ii. Note
1. Biased in favor of exclusion
2. High standard
Lannan v. State
Facts: Lannan was convicted of child molestation after testimony regarding
prior, uncharged acts of molestation was introduced at trial.
Rule: Court abandoned the depraved sexual exception and held that FRE
404(b) should beused in determining whether evidence of prior sexual
misconduct should be admitted.
Holding: the justification for having the rule are no longer valid. In order
for prior bad
acts to come into evidence, courts must insist that such evidence be used
only to prove anelement of the crime. Prior sexual misconduct can be
admitted if it proves motive,
opportuntity, intent, plan, knowledge or identity.
Notes: The depraved sexual instinct exception to the general rule against
admissibility o prior bad acts should no longer be recognized.
o *** though the court stated that they should not recognize the deparaved
sexual exception they still upheld the conviction holding that the iumpact of
the improper testimony was not sufficient to warrant reversal*****

State v. Kirsch
Facts: D was charged with molesting young girls. State moved to introduce
evidence of other uncharged sexual assaults as evidence of the defendants
motive, intent and common plan or scheme.
Issue: D the court err in admitting evidence of other bad acts committed
by the defendant
Holding: yes. The testimony concerning the uncharged assaults should not
have been admitted as it constitutes evidence offered to show defendants
propensity to commit sexual assaults and the defendant acted in conformity
therewith. The evidence was not offered for Ds motive intent and or
common plan.

Notes: Under FRE 414 in a criminal case in which D is accused of child


molestation,
evidence of ds commission of other offenses of child molestation is
admissible (child under
14)

United States v. Guardia

Facts: Prior to trial court excluded evidence of 4 women who alleged that
defendant
abused them in ways similar to the facts in the case against defendant.
Prosecution
appealed the judgment.
Issue: Did the court err in excluding the evidence?
Holding: Rule 403 (propensity) applies to all types of evidence including
those that would have been admitted under FRE 413. Court did not abuse its
discretion in dtetermining that the probative value of the evidence was
substantially outweighed by the danger of unfair prejudice.
Notes:
o Threshold requirements for Ruel 413
1. A district court must determine that the defendant is accused of an
offense
of sexual assault
2. The court must find that the evidence profeered is evidence of the ds
commission of another offernse of sexual assault
3. The evidence must be relevant.

United States v. Mound


Facts: D convicted of various sexual abuse crimes with minor. D
challenging cts decision to allow into evidence a past conviction of ds for
child abuse under FRE 413.
Issue: Did the trial court err in allowing evidence of Ds past conviction for
child sexual
abuse? Is it error to admit items into evidence under rule 413 when the same
evidence
would be inadmissible under rule 404(b)?
Holding: No. Congress has ultimate power to make exceptions to FREs, the
rule bears a rational relation to some legitimate end and congress judgment
in enacting the rule was rational. The court properly applied the Rule 403
test and determined to allow into evidence the prior conviction. Rule 413 was
intend to have the effect of allowing certain evidence that would be
inadmissible under rule 404(b) and the present case is one such situation.

Distringuishing Proof of Character Under Rules 413 and 415


Requires proof by SPECIFIC ACT
Prosecutor must offer evidence that the defendant committed any other
sexual assult or any other child molestation flow chart on page 161

Character for Untruthfulness


- In General
- similar to character evidence proving witness lied b/c has lying nature

FRE 608 Evidence of Witnesss Character/Conduct


(a) Opinion and Reputation Evidence witnesss credibility can be attacked or supported by
opinion/reputation evidence as long as:
1. evidence re: ONLY character for (un)truthfulness AND
2. evidence of truthfulness ONLY after character for truthfulness has been attacked
(b) Specific Instances of Conduct specific instances of conduct except conviction under FRE 609
CANT be proved by extrinsic evidence
1. Ct. has discretion to allow cross-x of witness re:
i. witnesss character for (un)truthfulness OR
ii. re: character for (un)truthfulness of another witness as to which character witness is being cross-x has
testified

**Testimony by or any other witness waiver of 5th Amendment privilege when examined ONLY re:
character for truthfulness)**