RULE 412. ADMISSIBILITY OF ALLEGED VICTIM'S SEXUAL BEHAVIOR OR ALLEGED SEXUAL PREDISPOSITION IN CRIMINAL PROCEEDING
Effective Date: 3/1/1998
Obsolete Date: 3/1/2014
(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. 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.
STATUTES AFFECTED:
SUPERSEDED: N.D.C.C. §§ 12.1-20-14, 12.1-20-15, 12.1-20-15.1.