When Overturning Evidence
We overturn evidentiary rulings only when the moving party has
proved a substantial prejudicial effect.
Rule 412 Discussion
The rule provides that "evidence offered to prove that any
alleged victim engaged in other
"evidence offered to prove any alleged
victim's sexual predisposition,"
Both 412(a)(1) and 412(a)(2) are generally inadmissible in
Evidence of sexual behavior and predisposition which is
otherwise admissible if "its probative value substantially
outweighs the danger of harm to any victim and of unfair
prejudice to any party."
Note (involving rape and sexual harassment)
To date, Rule 412 has been applied only to civil cases involving
rape and sexual harassment.
Sexual Transmitted diseases
Thus, the applicability of Rule 412 to cases involving
transmission of a sexually transmitted disease has not been
determined yet by any court.
Circuit Courts Discussion
District Court Judge
Did not think 412 applied to STDs
The court ordered a motion in limine.
Need not decide if 412 applies to STDs.
412 Analysis (Breast augmentation, prior sexual history, and
The district court said Judd waived her right based on 412 to
the admissibility of (Breast augmentation, prior sexual
history, and nude dancing) evidence, because she did not
properly OBJECT at trial.
Prior Sexual History Discussion
Judd Contends Prior Sexual History
Judd contends that admission of evidence of her prior sexual
history warrants a reversal of the judgment against her.
To find reversal
To find error warranting reversal,
Judd NEEDED to make a timely objection
That a substantial right was affected.
Rule 412(a) Engaged in OTHER sexual behavior
Provides that "evidence offered to prove that any alleged victim
engaged in other sexual behavior" will generally be excluded.
Rule 412(b) Exception Probative Value
Provides an exception to exclusion when the "probative value
substantially outweighs the danger of harm to any victim and of
unfair prejudice to any party."
Judd contends - The balancing test of Rule 412(b)
Evidence of her prior sexual history should have been
because its probative value
failed to outweigh substantially the unfair prejudice toward her.
Expert Testimony Rodman Used an Expert to talk about Gential
Expert testimony revealed that the herpes virus can be dormant
for long periods of time and the infected person can be
Prior Sexual relationships was highly relevant to Rodman's
Consequently, evidence of prior sexual relationships and the
type of protection used during sexual intercourse was highly
relevant to Rodman's liability.
The court did not abuse its discretion in admitting evidence of
Judd's prior sexual history.
Employment as a Nude Dancer Discussion
Judd contends Exclude nude dancing
Judd contends that evidence of her prior employment as a nude
dancer should have been excluded under Rule 412(a)(2).
Because it was offered to prove
her sexual predisposition.
Objected to motion in limine
Judd objected to the admission of this evidence both in a motion
in limine and at trial and, thus, preserved the issue for
She fails, however, to show that a substantial right was
affected by the admission of the evidence.
Could have admitted nude dancing
Finding that the probative value substantially outweighed the
Judd felt dirty after she contracted herpes
Judd testified that she felt "dirty" after she contracted
Judd continued her nude dancing
Judd's employment as a nude dancer
before and after she contracted herpes
was probative as to damages for
emotional distress because it suggested an
absence of change in her body image
following the herpes infection.
Given the evidence of (breast augmentation, prior sexual
history, and nude dancing) was probative value that
substantially outweighed any prejudicial effect.
Accordingly, we resolve that Judd has not shown that the
court's admission of this evidence constituted reversible error.