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Effective Date: 3/1/2023

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:

(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim's sexual predisposition.

(b) Exceptions.

(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant's constitutional rights.
(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim's sexual behavior or sexual predisposition, if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim's reputation only if the victim has placed it in controversy.

(c) Procedure to Determine Admissibility.

(1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:
(A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered;
(B) do so at least 14 days before trial unless the court, for good cause, sets a different time;
(C) serve the motion on all parties; and
(D) notify the victim or, when appropriate, the victim's guardian or representative.
(2) Hearing. In a civil case, before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. In a criminal case, the court may conduct an in camera hearing for a compelling reason only after applying and announcing on the record the factors establishing the overriding interest for courtroom closure. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed.

(d) Definition of "Victim." In this rule, "victim" includes an alleged victim.

Rule 412 was adopted, effective March 1, 1998. Rule 412 was amended, effective March 1, 2014; March 1, 2023.

Rule 412 is derived from Fed.R.Ev. 412. As explained in the federal advisory committee notes, the rule is designed to safeguard a victim from invasion of privacy, potential embarrassment and sexual stereotyping associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact finding process. By affording victims protection in most instances, the rule also encourages victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders.

Paragraph (b)(2) was added, effective March 1, 2014, to establish a standard for the admission of sexual behavior evidence in civil cases.

Paragraph (c)(2) was amended, effective March 1, 2023, to require the court in a criminal case to find on the record an overriding interest for courtroom closure before conducting an in camera hearing in chambers or a closed courtroom. The court must apply the the four factor pre-closure analysis required by Waller v. Georgia, 467 U.S. 39, 48 (1984) before making such a finding. See State v. Martinez, 2021 ND 42.

Subdivision (d) was added, effective March 1, 2014, to clarify that the definition of "victim" includes "alleged victim."

Rule 412 was amended, effective March 1, 2014, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.

SOURCES: Joint Procedure Committee Minutes of April 29, 2022, pages 9-12; April 26-27, 2012, pages 20-21; September 26-27, 1996, pages 2-5; April 25, 1996, pages 12-15. Fed.R.Ev. 412.


SUPERSEDED: N.D.C.C. §§ 12.1-20-14, 12.1-20-15, 12.1-20-15.1.

Effective Date Obsolete Date
03/01/2023 View
03/01/2014 03/01/2023 View
03/01/1998 03/01/2014 View