Tribal Rules of Evidence

In criminal cases in federal court, the trial judge looks to the Federal Rules of Evidence to decide whether the jury should get to see or hear a piece of evidence. Evidence can come in many different forms including: the testimony of the victim; the testimony of the perpetrator; expert testimony; documents, like letters or lab reports; and physical evidence, like a knife or a gun. Thus, the evidence that is admitted before the jury during a criminal trial can have a large impact on the trial’s ultimate result.

One of the biggest concerns during a criminal trial for sexual violence is weighing the victim’s constitutional right to privacy against the perpetrator’s constitutional right to confront the witnesses against him. Can you imagine what would happen if the perpetrator was allowed to ask questions for the sole purpose of embarrassing or shaming the victim? This would lead to severely traumatic experiences for the victim and would probably contribute to much lower reporting of sexual violence.

Luckily, the Federal Rules of Evidence act as guidelines in order to prevent the perpetrator from needlessly embarrassing or shaming the victim. For example, Rule 412 of the Federal Rules of Evidence prevents perpetrators from introducing evidence that the victim engaged in other sexual behavior or evidence offered to prove that a victim is predisposed to have a certain sexual history. Essentially, the perpetrator cannot present history of the victim’s prior sexual relationships in order to embarrass the victim. There are three very limited exceptions to Rule 412. First, a perpetrator can introduce evidence of a victim’s sexual history if it proves that someone other than the perpetrator is the source of semen, injury, or other physical evidence. Next, if the victim has previously had a consensual sexual relationship with the perpetrator, the perpetrator can offer this into evidence to prove that the sexual contact in question was consensual. Finally, the victim’s sexual history must be admitted into evidence if not admitting it would violate one of the perpetrator’s constitutional rights to a fair trial.

Furthermore, rape victims are further protected from needless harassment from the perpetrator or perpetrator’s attorney by Federal Rules of Evidence 401 and 403. According to Rule 401, all admitted evidence must be relevant, meaning that it has a tendency to make the existence of any fact that is of consequence to the determination of the criminal trial more probable or less probable than it would be without the

evidence. Generally speaking, most personal information about the victim is completely irrelevant to the crime of rape and is therefore inadmissible at trial. For example, the victim’s financial history, the victim’s grades in middle school, the victim’s tattoos, and the victim’s prior diagnosis of a physical or mental illness would be completely off limits. Furthermore, some information about the victim may technically be relevant to the outcome of the trial but still inadmissible under Rule 403. Under Rule 403, relevant evidence should only be admitted into court if its probative value substantially outweighs the risk of prejudice. For example, a victim’s sexual history or the number of failed pregnancies she has had is highly prejudicial and therefore is almost always inadmissible, even if it could be construed as relevant to the trial.

Also, Federal Rules of Evidence 801 and 802 prohibit the admission of hearsay into trial. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted. The hearsay rules help protect victims’ rights because they prevent the perpetrator from introducing unreliable gossip about the victim into evidence. The hearsay rule helps to ensure that only credible evidence is admitted during trial.

Just as the Federal Rules of Evidence are designed to protect victims of sexual violence, they are not generous to perpetrators of sexual violence. Generally speaking, federal courts are not allowed to admit evidence of a criminal defendant’s prior convictions for the purpose of proving that he acted in conformity with that criminal behavior during the crime for which he is on trial. Federal Rules of Evidence 413 or 414, however, provide that if the criminal defendant has been previously convicted of sexual assault or child molestation, the court can admit that evidence during a sexual assault or child molestation trial. In other words, the defendant’s prior bad behavior can come back to haunt him during the present trial for rape or child molestation.

There are many rules of evidence, not just the ones that have been discussed above. The Rules discussed above, however, are the ones that will most likely have an impact during a federal criminal trial for sexually violent behavior. Understanding the Federal Rules of Evidence can be very beneficial for a victim, because an understanding of these Rules can show the victim what to expect at trial and make her feel more secure about the criminal trial process.

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*National Tribal Trial College is a project of the Southwest Center for Law and Policy ( This project was supported by Grant No. 2011-TA-AX-K045, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.