TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 4, 2012
RE: Rule 412, N.D.R.Ev., Sex Offense Cases: The Victim's Sexual Behavior or Predisposition
Form and style amendments to Rule 412 consistent with the 2011 federal amendments are proposed. The amendments are not intended to change any result in any ruling on evidence admissibility.
One language change is that repeated use of the term "alleged victim" is the rule is eliminated by defining the term "victim" to include "alleged victim."
The federal rule has always applied to both civil and criminal proceedings. This happened because Congress amended the Supreme Court's original proposal, which would have made the rule applicable only to criminal proceedings. The Committee made a deliberate choice to have North Dakota's existing rule apply only to criminal proceedings, but the federal language on civil proceedings has been included in the current proposal for the Committee to discuss.
For what it's worth, the Committee adopted its internal rule requiring a two thirds majority to approve a new or amended rule on first reading as a result of its original discussion of Rule 412. In the end the Committee approved the "criminal only" version of Rule 412 on second reading by an 8-5 vote Excerpts from the Committee's minutes, which discuss the pluses and minuses of the different approaches, are attached.
No discussion or explanatory material was included in the explanatory note, which may be understandable considering the differences of opinion on the rule when it was approved. The Committee may wish to discuss whether the explanatory note needs to be supplemented in any way.