EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, April 3, 2014

Two Weeks Notice: Court of Appeals of Mississippi Finds Defendant Failed to Comply With Rape Shield Rule

Mississippi Rule of Evidence 412 generally precludes the admission of an alleged victim's past sexual behavior in a sexual assault case, subject to a few exceptions, including evidence of prior sexual acts between the victim and the accused. If, however, the defendant wants to present such evidence, he must comply with Mississippi Rule of Evidence 412(c), which reads as follows:


(1) If the person accused of committing a sexual offense intends to offer under subdivision (b) evidence of specific instances of the alleged victim's past sexual behavior or evidence of past false allegations made by the alleged victim, the accused shall make a written motion to offer such evidence not later than fifteen days before the date on which the trial in which such evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case. Any motion made under this paragraph shall be served on all other parties and on the alleged victim.  

(2) The motion described in paragraph (1) shall be accompanied by a written offer of proof. If the court determines that the offer of proof contains evidence described in subdivision (b), the court shall order a hearing in chambers to determine if such evidence is admissible. At such hearing the parties may call witnesses including the alleged victim, and offer relevant evidence. Notwithstanding subdivision (b) of Rule 104, if the relevancy of the evidence which the accused seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the hearing in chambers or at a subsequent hearing in chambers scheduled for such purpose, shall accept evidence on the issue of whether such condition of fact is fulfilled and shall determine such issue.  

(3) If the court determines on the basis of the hearing described in paragraph (2) that the evidence which the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice, such evidence shall be admissible in the trial to the extent an order made by the court specifies evidence which may be offered and areas with respect to which the alleged victim may be examined or cross-examined. 

These requirements were the problem for the defendant in McNair v. State, 2014 WL 1189931 (Miss.App. 2014).

In McNair, Rumond McNair was charged with forcible rape. Before trial, but after discovery had been conducted, McNair claimed that prior to the evening of the incident, he and the alleged victim had engaged in sexual intercourse on numerous occasions and sometimes traded drugs for sex. At trial, however, the court precluded him from rendering testimony on this subject, and McNair was later convicted.

He thereafter appealed, claiming that his testimony was admissible under Mississippi's rape shield rule, but the Court of Appeals of Mississppi disagreed, finding that he failed to comply with Mississippi Rule of Evidence 412(c). According to the court,

Mississippi Rule of Evidence 412(c) requires that the accused submit a written motion not less than fifteen days before trial, and the motion must contain a written narrative of the offer of proof. McNair failed to follow the proper procedure by filing the motion one day before trial. Further, there is no written narrative that includes the proof that McNair sought to enter into evidence.



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