Intro to the Federal Rules of Evidence - 11

8. Sex Offenses Cases (FRE 412 – 415)

a.Inadmissibility of a victim’s character evidence in sexual offense (FRE 412)

i) Inadmissibility
The defendant, either in civil or criminal litigation, may not be introduce evidence of the victim’s
sexual character
Sexual behavior
Sexual predisposition: a mode of dress, speech, or life style.

ii) Rationale
To protect the victim’s privacy & to encourage victims to come forward to report the incidents.

iii) Criminal case exceptions (FRE 412(b)(1)(A) – (C))
1) Source of semen, injury, other physical evidence (e.g., pregnancy or disease)
2) Consent
3) Constitutional exceptions
Olden v. Kentucky, 488 U.S. 227 (1988): If the 6th/14th Amend. Confrontation Clause right are involved, evidence of V’s specific sexual acts may be admissible to cross examine V to show bias arising from her sexual history.

iv) Civil case exceptions (FRE 412(b)(2))
For example, in sexual harassment cases, evidence proving the victim’s sexual behavior or sexual predisposition is admissible if it is otherwise admissible and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.

v) Methods to prove exceptions
The implication of FRE 412 is evidence of specific acts is admissible while evidence of opinion or reputation, with an exception of civil cases, is not.

vi) Procedural Requirements (FRE 412(c))
Notice and in chamber procedures are mandatory.

b. Admissibility of a defendant’s/ Accused character evidence in sex offense (FRE 413-415)

i) Rationale
To protect the public from rapists and child molesters.

ii) Superseding 404(b)
“… may be considered for its bearing on any matter to which it is relevant (FRE 413(a), 414(a)): “if D did it before, D did it now”