10-6-09 More readable Handout_--_Material_on_Rape_Shield_Laws

10-6-09 More readable Handout_--_Material_on_Rape_Shield_Laws

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Ev2009-Tillers for student use only p. 1 at 8 Handout - Comments on Rape Shield Laws Federal Rule of Evidence 412 Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition (a) Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. (2) Evidence offered to prove any alleged victim's sexual predisposition. (b) Exceptions. (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and (C) evidence the exclusion of which would violate the constitutional rights of the defendant. (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim. (c) Procedure to determine admissibility. (1) A party intending to offer evidence under subdivision (b) must -- (A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and (B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative. (2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.
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Ev2009-Tillers for student use only p. 2 at 8 Common Law Background to Rape Shield Laws The common law background for the rape shield laws, which came into being in the late 1960s and the 1970s: 1. The general common law prohibition against "circumstantial" character evidence applied in rape cases. 2. Contrary to the claims of a few observers today, the common law character evidence rule was generally understood to prohibit the use of character to show the conduct of any person, not just the conduct of an accused in a criminal case. Cf. R 404(a), which prohibits the use of character to show the conduct of a "person." 3. At common law, there was an exception to the character evidence rule that allowed a criminal
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This note was uploaded on 01/31/2010 for the course LAW 7330 taught by Professor Lushing during the Fall '05 term at Yeshiva.

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10-6-09 More readable Handout_--_Material_on_Rape_Shield_Laws

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