Doe v. United States (1981)

United States Court of Appeals for the Fourth Circuit · 1981 · Evidence

666 F.2d 43 (4th Cir. 1981)

Updated August 22, 2026

EvidenceRule 412rape shieldfinalityappeal28 U.S.C. § 1291practical finalityreputation evidence

Facts

Black, charged with rape, moved under Federal Rule of Evidence 412 to admit evidence and cross-examine the alleged victim about her past sexual behavior. After a hearing, the district court allowed several categories of evidence, including testimony about her general reputation, habits of calling soldiers and visiting barracks, a former landlord's experience with her alleged promiscuity, what a social worker had learned, Black's telephone conversations with her, and Black's state of mind based on what he knew of her reputation and statements. The victim later brought a civil action seeking permanent sealing of the Rule 412 proceedings and related relief; the court reopened the Rule 412 hearing because she had not received the notice required by Rule 412(c)(1), reaffirmed its ruling, and entered summary judgment against her. She then appealed both the criminal and civil orders.

Issue

Whether the alleged rape victim could immediately appeal an adverse pretrial Rule 412 evidentiary ruling under 28 U.S.C. § 1291, and whether the district court properly admitted the various categories of evidence concerning her past sexual behavior. The court also considered whether the district court erred in refusing to seal the Rule 412 record and limit subpoenas in the related civil action.

Rule

A rape victim may immediately appeal an adverse pretrial Rule 412 ruling because, as to the victim, the order is practically final under 28 U.S.C. § 1291 and an appeal right is implicit in Rule 412's protection of the victim's privacy interests. Under Rule 412(a), reputation or opinion evidence of an alleged victim's past sexual behavior is inadmissible, and labeling such evidence as habit does not remove it from the rule's prohibition. Evidence of the victim's conversations with the defendant, and evidence of the defendant's pre-incident knowledge of the victim's past sexual behavior when offered solely to show the defendant's state of mind, is not excluded by Rule 412 and is governed by ordinary relevance principles; knowledge acquired after the incident is irrelevant to that issue.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a federal rape prosecution in Richmond, the district court rules before trial that the defendant may question the complainant about several alleged prior sexual encounters. The complainant, who received notice and participated in the in-chambers hearing, files an immediate appeal seeking review before trial begins.

Should the court of appeals most likely dismiss the appeal for lack of a final decision?

Explanation. The majority held that an alleged rape victim may immediately appeal an adverse pretrial Rule 412 ruling under 28 U.S.C. § 1291 because, with respect to the victim, the order is practically final. The key reasoning is that post-trial review would come too late to prevent the privacy invasion Rule 412 seeks to avoid, and no other participant adequately champions those interests.