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.

Admitted evidence during a criminal trial can have a significant impact on the trial's ultimate result.

One of the biggest concerns during a sexual violence criminal trial is weighing the victim's constitutional right to privacy against the perpetrator's right to confront the witness(es) 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?  Those questions would lead to severely traumatic experiences for the victim and would probably deter the victim from reporting violence in the future.
Luckily, the Federal Rules of Evidence act as guidelines 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 expose the victim's sexual history. The perpetrator cannot present the history of the victim's prior sexual relationships to embarrass the victim. 
There are three minimal exceptions to Rule 412. 

    1. 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.
    2. 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.
    3. The victim's sexual history must be admitted into evidence if not assuming it would violate one of the perpetrator's constitutional rights to a fair trial.
What is hearsay? Are there rules for hearsay evidence?

Federal Rules of Evidence 801 and 802 prohibit the admission of hearsay into a trial. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offeredinto 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 the admission of credible evidence during the 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.

What is Rule 401?

Rule 401 is a test for relevant evidence. Rule 401 means that evidence is only relevant if:

    1. It has any tendency to make a fact more or less probable than it would be without the evidence; and
    2. the fact is of consequence in determining the action.

Generally speaking, most personal information about the victim is entirely 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 physical or mental illness would be entirely off-limits. Some information about the victim may technically be relevant to the outcome of the trial but still inadmissible under Rule 403.

What is Rule 403?

Rule 403 excludes relevant evidence for prejudice, confusion, waste of time, or other reasons. 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 construed as relevant to the trial.

Just as the Federal Rules of Evidence are designed to protect victims of sexual violence, they are not generous to perpetrators of sexual abuse. Federal courts are not allowed to admit evidence of a criminal defendant's prior convictions to prove 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 past charges 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 them during the present trial for rape or child molestation.

There are many rules of evidence in addition to the rules 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 them feel more secure about the criminal trial process.

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*NICCSA is a project of the Southwest Center for Law and Policy ( This project is supported by Grant No. 2017-SA-AX-K001, 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.