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  • Brian Foley

Conroe Criminal Defense Lawyer - Texas Rules of Evidence Series RULE 412

Texas Rule of Evidence 412 is one of the only rules that has a nickname. It is called the "rape shield" law. And in general limits the type of evidence that can be admitted into evidence in a sex offense trials. The rule was originally proposed in 1975 as part of the penal code and was modeled after the federal rule which was adopted across the country at the time.

The rule ends what was previously a common defense tactic of offering evidence of a victim's promiscuous conduct in order to prove that the victim consented to the sexual contact at issue in the trial.


While the rule specifically lists the offenses of sexual assault, aggravated sexual assault, or attempted sexual and aggravated sexual assault there are many offenses that will have this rule bootstrapped to them under rule 403. So for example, while Rule 412 does not apply by its explicit terms to an offense for indecency with a child by contact a court would likely find that evidence which would normally be prohibited under rule 412 would be substantially more prejudicial than probative when conducting the analysis under rule 403.


  1. Reputation or opinion evidence of a victim's past sexual behavior;

Reputation evidence is actually testimony that specifically is based on hearsay. What is the general understanding of the character of this person in the community. Reputation evidence must actually be based on the witnesses personal knowledge of the hearsay in the community. So Rule 412 says that you cannot call a witness to say that the victim is known to have a character of sexual promiscuity or deviant sexual behavior. As a lawyer who has had this rule in place since I have been alive it is difficult to imagine a legal world where this kind of evidence would have been admissible but time and again courts prior to the introduction of rule 412 ruled that evidence that a complainant was "a common prostitute" was admissible. Mitchell v. State, 544 S.W.2d 927, 928 (Tex. Crim. App. 1977).

2. Specific Instances of a victim's past sexual behavior.

Generally specific instances of conduct are not admissible but this part of the rule is really defined by its exceptions.

The exceptions are:

  • The evidence is necessary to rebut or explain scientific or medical evidence offered by the prosecutor; (Example: A defendant says that the source of DNA or injury was caused by another person and therefore was part of sexual conduct of the victim at or around the time of the alleged sexual assault.) Miles v. State, 61 S.W.3d, 682, 686-87 (Tex. App. -- Houston [1st Dist.] 2001 pet. ref'd).

  • The complainant consented to the conduct alleged. Example: The complainant consented to the same conduct as alleged in the offense at or near the time of the offense on numerous occasions. “[S]pecific instances of the victim's past sexual behavior is admissible if it is evidence of past sexual behavior with the accused and is offered by the accused upon the issue of consent. ” Boyle v. State, 820 S.W.2d 122, 149 (Tex. Crim. App. 1992)(emphasis in original). On this point it is important to note that there is a requirement for each exception that the probative value outweighs the danger of unfair prejudice so a single consensual act 15 years prior and less intrusive than the one alleged at trial will probably not be admitted into evidence.

  • Goes to Motive to Lie or Bias. Example: A criminal defendant may cross examine an alleged victim about sexual assault allegations that the victim is accused of near the time of the offense as a reason that the victim may have fabricated the allegation against the defendant. "We hold, therefore, that the trial court judge erred by not permitting Johnson to cross examine [the victim about] past sexual abuse of his sister. Such evidence supported [the defendant's] theory that [the victim] had, at that time, a motive to falsely accuse Johnson of sexual molestation, and the jury should have been allowed to weigh such evidence along with the rest of the evidence presented. The appellate court erred in holding that the trial court judge did not abuse his discretion by excluding this evidence." Johnson v. State, 490 S.W.3d 895, 915 (Tex. Crim. App. 2016).

  • The evidence is admissible under Rule 609; This category allows actual criminal convictions of a sexual nature if used to show that the witness is not a trustworthy witness. Prostitution has been held to be an offense involving moral turpitude and therefore subject to cross examination questions under rule 609. Holgin v. State, 480 S.W.2d 405 (Tex. Crim. App. 1972); Johnson v. State,453 S.W.2d 828 (Tex.Crim.App. 1970); Robertson v. State,685 S.W.2d 488, 492 (Tex.App. — Fort Worth 1985, no pet.); Husting v. State, 790 S.W.2d 121, 126 (Tex. App. 1990).

  • The evidence is constitutionally required to be admitted. This really refers to the confrontation clause of the 6th amendment and has been interpreted to allow question about similar allegations made by a sexual assault complainant as well as other sexual encounters that would demonstrate how someone became aware of sexual matters. Kesterson v. State, 997 S.W.2d 290, 295-96 (Tex. App. --Dallas 1999, no pet.). Matz v. State, 989 S.W.2d 419, 422-23 (Tex. App. -- Forth Worth 1999), rev'd on other grounds 14 S.W.3d 746 (Tex. Crim. App. 2000).


Before a court allows specific instances of conduct to be offered against a victim or alleged victim in a sexual assault trial Rule 412 has a provision that operates like a motion in limine where defense must approach outside the presence of the jury and offer the testimony first and then the court must determine even if it meets an exception that the evidence's probative value outweighs the danger of unfair prejudice. This is a reverse of the 403 standard which is that the court may exclude relevant evidence when its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.

Rule 412. Evidence of Previous Sexual Conduct in Criminal Cases

(a) In General. The following evidence is not admissible in a prosecution for sexual assault, aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault:

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

(2) specific instances of a victim’s past sexual behavior.

(b) Exceptions for Specific Instances. Evidence of specific instances of a victim’s past sexual behavior is admissible if:

(1) the court admits the evidence in accordance with subdivisions (c) and (d);

(2) the evidence:

(A) is necessary to rebut or explain scientific or medical evidence offered by the prosecutor;

(B) concerns past sexual behavior with the defendant and is offered by the defendant to prove consent;

(C) relates to the victim’s motive or bias;

(D) is admissible under Rule 609; or

(E) is constitutionally required to be admitted; and

(3) the probative value of the evidence outweighs the danger of unfair prejudice.

(c) Procedure for Offering Evidence. Before offering any evidence of the victim’s past sexual behavior, the defendant must inform the court outside the jury’s presence. The court must then conduct an in camera hearing, recorded by a court reporter, and determine whether the proposed evidence is admissible. The defendant may not refer to any evidence ruled inadmissible without first requesting and gaining the court’s approval outside the jury’s presence.

(d) Record Sealed. The court must preserve the record of the in camera hearing, under seal, as part of the record.

(e) Definition of “Victim.” In this rule, “victim” includes an alleged victim.

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