RULE 412. ADMISSIBILITY OF ALLEGED VICTIM'S SEXUAL BEHAVIOR OR ALLEGED SEXUAL PREDISPOSITION IN CRIMINAL PROCEEDING
(a) Evidence Generally Inadmissible. The following evidence is not admissible in any 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; and
(2) evidence offered to prove any alleged victim's sexual predisposition.
(b) Exceptions. In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(1) 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;
(2) 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
(3) evidence the exclusion of which would violate the constitutional rights of the defendant.
(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.
Rule 412 was adopted, effective March 1, 1998.
SOURCES: Minutes of Joint Procedure Committee: September 26-27, 1996, pages 2-5; April 25, 1996, pages 12-15. Rule 412, Federal Rules of Evidence.
SUPERSEDED: Sections 12.1-20-14, 12.1-20-15, 12.1-20-15.1, NDCC.