Miss. R. Evid. 412

As amended through March 21, 2024

Rule 412 - Sex-offense Cases: the Victim's Sexual Behavior or Predisposition

(a)Prohibited Uses. The following is not admissible in a criminal case involving an alleged sexual offense:

(1) reputation or opinion evidence of a victim's past sexual behavior; and

(2) evidence of a victim's past sexual behavior other than reputation or opinion, except under subdivisions (b) and (c).

(b) Exceptions. The court may admit evidence of:

(1) specific instances of a victim's past sexual behavior:

(A) with a person other than the defendant, if offered by the defendant to prove that someone else was the source of semen, pregnancy, disease, or injury;

(B) with the defendant, if offered by the defendant to prove consent; and

(C) if constitutionally required to be admitted; and

(2) false allegations of sexual offenses made at any time before trial by the victim.

(c)Procedure to Determine Admissibility.

(1) Motion. A defendant who intends to offer evidence under subdivision (b) must:

(A) make a motion accompanied by an offer of proof describing the evidence;

(B) file the written motion and offer of proof at least 15 days before trial, unless the court sets a later time - including during trial - after determining:

(i) the evidence is newly discovered and with reasonable diligence could not have been discovered earlier; or

(ii) the issue is newly arisen; and

(C) serve all parties and the victim.

(2) Hearing and Order. When the offer of proof is sufficient, the evidence may be admitted only if the court:

(A) conducts a hearing in chambers to determine admissibility of the evidence;

(B) allows the parties to offer relevant evidence and call witnesses - including the victim - at the hearing;

(C) if the relevance of the evidence depends on whether a fact exists, determines - at this or a later hearing - whether the fact exists, notwithstanding Rule 104(b);

(D) finds that the probative value of relevant evidence outweighs the danger of unfair prejudice, except this subparagraph (D) does not apply when the evidence is offered under subparagraph (b)(1)(C); and

(E) makes an order that specifies:

(i) the admissible evidence; and

(ii) the areas about which the victim may be examined.

(d)Definitions. In this rule:

(1) "victim" includes an alleged victim; and

(2) "past sexual behavior" means sexual behavior other than the alleged offense.

Miss. R. Evid. 412

Amended effective 3/1/1989; restyled eff. 7/1/2016.

Advisory Committee Historical Note.

Effective March 20, 1995, the Advisory Committee Note to Rule 412 was amended to note the repeal of a statute. 648-651 So.2d XXVI (West Miss. Cas. 1995).

Effective March 1, 1989, Rule 412 was amended to add the terms "pregnancy" and "disease" to 412(b)(2)(A) and to add a new subsection 412(b)(2)(C). 536-538 So. 2d XXXII (West Miss. Cas. 1989).

Advisory Committee Note

The language of Rule 412 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. The Rule has been restructured, employing additional paragraphs, subparagraphs, and items. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

(a) Subsection (a) is designed to protect the privacy of the alleged victim by excluding opinion or reputation evidence of the victim's past sexual experience. This rule is applicable in all criminal cases in which a defendant is accused of a sexual offense against another person. This includes, but is not limited to, offenses prohibited by M.C.A. 97-3-95.

(a) Subdivision (a) also excludes other evidence of the victim's past sexual experience with some exceptions in subdivision (b). Specific instances of sexual conduct are admissible to determine whether the defendant is the source of semen, pregnancy, disease or injury. Furthermore, specific instances of sexual conduct between the alleged victim and the defendant are relevant on the issue of consent.

(c) Subsection (c) provides that notice be given if the defendant intends to offer evidence of specific instances of the alleged victim's sexual conduct. The defendant does this by making a written motion to offer the evidence, which includes an offer of proof. The court then holds a hearing in chambers to decide the evidence's admissibility.

If otherwise admissible, nothing in this rule precludes evidence of past false allegations by the alleged victim of past sexual offenses. "Past false allegations" shall include any such allegations made prior to trial. This provision is intended to protect the defendant's Sixth Amendment rights.

Rule 412(a) and (b) adapts the language of Uniform Rule of Evidence 412. In its procedural requirements Rule 412 bears similarity to M.C.A. 97-3-70 (repealed July 1, 1991), the Mississippi rape-shield law enacted in 1977. See also M.C.A. 97-3-68; Johnston v. State, 376 So.2d 1343 (Miss. 1979).

["Advisory Committee Note" substituted for "Comment," effective June 16, 2016; amended July 1, 2016, to note restyling.]

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