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Rapt Admissions: Comparing Proposed Federal Rule of Evidence 416 “Rap Shield” with the Rule 412 “Rape Shield”

Posted by on Friday, July 28, 2023 in Notes, Volume 25, Volume 25, Issue 4.

Patience Tyne | 25 Vand. J. Ent. & Tech. L. 813 (2023).

Creative expression depicting illicit activity can cause jurors to infer improper conclusions about a defendant, even when the jurors attempt to analyze such evidence objectively. When the government seeks to admit a defendant’s creative work into evidence in a criminal trial, courts use existing evidentiary rules to balance the work’s probative value against its risk of unfair prejudice. These rules are supposed to prevent unfair prejudice, but various scholars have shown that courts do not always appreciate how unfairly prejudicial art can be. Rap music presents unique challenges because jurors may fail to discern the work’s literal versus symbolic meaning. Similarly, several decades ago courts struggled to exclude improper evidence of victims’ sexual histories from the courtroom until social pressure encouraged legislators to pass “rape shield” laws. Now, legislators in several states as well as Congress have proposed “rap shield” laws to exclude improper artwork evidence.

This Note analyzes proposed Federal Rule of Evidence 416, “Limitation on admissibility of defendant’s creative or artistic expression,” in the context of Federal Rule of Evidence 412, which governs admission of a victim’s sexual history in sex offense cases. Although proposed Rule 416 would protect artistic defendants and Rule 412 protects sexual assault victims, the two rules share various similarities; in particular, they both entail categorical rules of exclusion. This Note summarizes the Rule’s social and legal background and concludes by offering recommendations for its improvement.

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