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Rape Shield Evidence and the Hierarchy of Impeachment
American Criminal Law Review  (IF3.455),  Pub Date : 2019-03-01, DOI:
Rosanna Cavallaro

The federal rape shield law creates a bar against the use of evidence of “other sexual behavior” of a complainant in a rape case, permitting such evidence only within strictly defined circumstances. Unlike most other evidentiary rules of exclusion, which define an impermissible use of otherwise relevant evidence but do not purport to enumerate an exhaustive list of permissible uses, Rule 412 reverses the ordinary approach of such rules and prohibits the use of any and all rape shield evidence unless it is explicitly permitted by the Rule. This rigid approach to rulemaking itself poses nearly impossible problems of foresight. As it must, this legislatively created rule recites that it yields in criminal cases where the exclusion of such evidence “would violate the defendant’s constitutional rights.” To date, the United States Supreme Court has recognized that those rights are implicated only where the exclusion of material pursuant to the rape shield rule represents a “denial of a defendant’s opportunity to impeach a witness for bias.” Although Article IV of the Federal Rules of Evidence deals with the substantive use of evidence, the Court approved this exception to the exclusion of rape shield material pursuant to a longstanding theory of impeachment, or general attack on the “credibility” or “reliability” of the central witness against the defendant. In so doing, the Court established a difference in treatment of rape shield evidence that defies both logic and common sense, pursuant to which one theory of impeachment may be pursued while all others are forbidden. While this would be merely disappointing in other contexts, where, as here, the difference purports to have a constitutional foundation, a closer look at the rationale and results seems warranted.