Requirements for Admission of MRE 412 Evidence

courtmartialattorneynavyusaAs a foundational matter the proponent of the introduction of sexual evidence under rule 412 must establish the following:

  • The act is relevant for one of the purposes in Rule 412(b)
  • Where the act occurred,
  • When the act occurred,
  • Who was present,
  • Whether the probative value outweighs the potential prejudice.

Proving the act is relevant:

  1. The proponent, usually the accused, must show that the probative value of introducing the sexual history of the victim outweighs the potential prejudice. When conducting a rule 412(c)(3) balancing test, the judge must take into consideration factors such as the confusion of the issues, misleading the members, undue delay and waste of time, needless presentation of cumulative evidence, and possible prejudice to the victim’s legitimate privacy interests. See United States v. Banker, supra.
  2. During questioning about an alleged victim’s sexual history it is important to only stay to these foundations. A witness many not opine on the victim’s propensity towards extra-marital sexual relations or their likelihood of having consensual sexual activity with the accused because of this. For example, in a case where it is alleged that the accused and the victim are alleged to have consensual sexual intercourse before the date of the alleged sexual assault, it is improper to draw conclusions about the victim being more likely to have extra-marital sex but evidence could be used to show that the victim was more likely to have had consensual sex at the time of the alleged incident.

Requirements for Admission