deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined

by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability.

CODIFICATION

This rule is set out in this supplement to correct a typographical error.

Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

(As amended Apr. 30, 1979, eff. Dec. 1, 1980.) NOTES OF ADVISORY COMMITTEE ON 1979 AMENDMENT TO RULES

Present rule 410 conforms to rule 11(e)(6) of the Federal Rules of Criminal Procedure. A proposed amendment to rule 11(e)(6) would clarify the circumstances in which pleas, plea discussions and related statements are inadmissible in evidence; see Advisory Committee Note thereto. The amendment proposed above would make comparable changes in rule 410.

EFFECTIVE DATE OF 1979 AMENDMENT

Pub. L. 96-42, July 31, 1979, 93 Stat. 326, provided in part that the effective date of the amendment transmitted to Congress on Apr. 30, 1979, be extended from Aug. 1, 1979, to Dec. 1, 1980.

Rule 412. Rape Cases; Relevance of Victim's Past Behavior

(a) Notwithstanding any other provision of law, in a criminal case in which a person is accused of rape or of assault with intent to commit rape, reputation or opinion evidence of the past sexual behavior of an alleged victim of such rape or assault is not admissible.

(b) Notwithstanding any other provision of law, in a criminal case in which a person is accused of rape or of assault with intent to commit rape, evidence of a victim's past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is

(1) admitted in accordance with subdivisions (c)(1) and (c)(2) and is constitutionally required to be admitted; or

(2) admitted in accordance with subdivision (c) and is evidence of

(A) past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury;

or

(B) past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which rape or assault is alleged.

(c)(1) If the person accused of committing rape or assault with intent to commit rape intends to offer under subdivision (b) evidence of specific instances of the alleged victim's past sexual behavior, 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

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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.

(d) For purposes of this rule, the term "past sexual behavior" means sexual behavior other than the sexual behavior with respect to which rape or assault with intent to commit rape is alleged.

(Added Pub. L. 95-540, § 2(a), Oct. 28, 1978, 92 Stat. 2046.)

EFFECTIVE DATE

Section 3 of Pub. L. 95-540 provided that: "The amendments made by this Act [enacting this rule] shall apply to trials which begin more than thirty days after the date of the enactment of this Act [Oct. 28, 1978]."

ARTICLE XI-MISCELLANEOUS RULES Rule 1101. Applicability of Rules

(a) Courts and magistrates. These rules apply to the United States district courts, the District Court of Guam, the District Court of the Virgin Islands, the District Court for the District of the Canal Zone, the United States courts of appeals, the Court of Claims, and to United States magistrates, in the actions, cases, and proceedings and to the extent hereinafter set forth.

The terms "judge" and "court" in these rules include United States magistrates and commissioners of the Court of Claims.

(b) Proceedings generally. These rules apply generally to civil actions and proceedings, including admiralty and maritime cases, to criminal cases and proceedings, to contempt proceedings except those in which the court may act summarily, and to proceedings and cases under title 11, United States Code.

[See main edition for text of (c) to (e)] (As amended Pub. L. 95-598, title II, § 251, Nov. 6, 1978, 92 Stat. 2673.)

AMENDMENT EFFECTIVE APRIL 1, 1984

Pub. L. 95-598, title II, § 252, title IV, § 402(b), Nov. 6, 1978, 92 Stat. 2673, 2682, provided that, effective Apr. 1, 1984, subsec. (a) is amended by adding "the United States bankruptcy courts," after "the United States. district courts,”.

AMENDMENTS

1978-Subd. (a). Pub. L. 95-598, § 251(a), struck out ", referees in bankruptcy," following "United States magistrates".

Subd. (b). Pub. L. 95-598, § 251(b), substituted "title 11, United States Code" for "the Bankruptcy Act".

EFFECTIVE DATE OF 1978 AMENDMENT

Amendment of subds. (a) and (b) of this rule by section 251 of Pub. L. 95-598 effective Oct. 1, 1979, see section 402(c) of Pub. L. 95-598, set out as an Effective Dates note preceding section 101 of the Appendix to Title 11, Bankruptcy. For Bankruptcy Jurisdiction and procedure during transition period, see note preceding section 1471 of this title.

Rule 1103. Title

SHORT TITLE OF 1978 AMENDMENT

Pub. L. 95-540, § 1, Oct. 28, 1978, 92 Stat. 2046, provided: "That this Act [enacting rule 412 of these rules and a provision set out as a note under rule 412 of these rules] may be cited as the 'Privacy Protection for Rape Victims Act of 1978'."

(d) Disqualification: (1) Standards: The trial judges of this court are subject to the standards for disqualification set by 28 U.S.C. § 455.

(2) Voluntary Disqualification: A trial judge may at any time withdraw from a case if he deems himself disqualified.

(3) Affidavit of Bias or Prejudice: (i) Whenever a party to any proceeding makes and files an affidavit that the trial judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such trial judge, if he determines that the affidavit is sufficient and timely, shall proceed no further therein, but the chief of the trial division shall assign another trial judge to hear such proceeding. The ruling of the trial judge shall be by order.

(ii) The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed as soon as practicable after the facts upon which the affidavit is based become known to the party, but not less than 10 days before a scheduled trial date, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

III. PLEADINGS

Rule 41. Third-party practice

(a) When third parties may be brought in. (1) The court, on its own motion or on the motion of a party, may notify any person with legal capacity to sue and be sued and who is alleged to have an interest (if any) in the subject matter of any pending suit to appear as a party and assert his interest therein.

[See main edition for text of (2) and (3); (b) to (g)]

IV. MOTIONS

Rule 51. Motions and related papers

[See main edition for text of (a) and (b)]

(c) Briefs; memoranda; affidavits. (1) Any brief, memorandum of law, or affidavits submitted in support of any motion, or in support of any objections or response to a motion, shall be included in or attached to each copy of such motion, objections, or response. Every dispositive motion, as defined in Rule 52(a), shall be supported by the moving party's brief. As to

any rule or regulation relied upon, see Rule 124(c).

(2) Briefs relating to dispositive motions shall conform to the pertinent requirements of Rule 144, dealing with the content and length of briefs: Provided, That in the case of cross-motions for summary judgment, for purposes of length the objecting or responding brief of the party who filed first shall be treated as a reply brief governed by Rule 144(e)(2).

[See main edition for text of (d)]

Rule 52. Motions; dispositive and procedural; objections and responses

[See main edition for text of (a)] (b) Time for filing; papers combined.

[See main edition for text of (1)]

(2) Reply briefs. The moving party shall have 20 days from the date of the service of the objections or response to such motion within which to file a reply brief: Provided, That when cross-dispositive motions are pending, the party who filed first shall have 30 days from the service on him of the crossmotion within which to file both his objections or response thereto and his reply to the objections or responses to the motion filed by him, and all such material shall be contained in the same document.

[See main edition for text of (c) to (e)] Rule 53. Reference of procedural motions

[See main edition for text of (a) and (b)] (c) Review by the court.

[See main edition for text of (1)]

(2) Interlocutory review. A party dissatisfied with a procedural order of the trial judge may request interlocutory review of the order in either of the following situations:

(i) When trial judge is of the opinion that an order made by him pursuant to paragraph (b) of this rule involves an issue of controlling importance or an issue of deprivation of fundamental rights as to which there is substantial ground for difference of opinion and that the ultimate termination of the litigation may be materially advanced by permitting request for interlocutory review of his action, he shall so state in such order, and any party dissatisfied with the order may, in accordance with subparagraph (3) of this paragraph (c), request the court to review it. On motion, and for good cause shown, an order may be amended by the trial judge to include such a statement at any time while the reference of the case to him remains in effect. (See Rule 14(b).)

[See main edition for text of (ii)]

(3) Request for interlocutory review. (i) A request for review of a trial judge's procedural order under subparagraph (2) of this paragraph (c) shall be filed by the dissatisfied party with the clerk within 10 days from the date of (a) service of an order filed pursuant to subparagraph (1) of paragraph (b) of this rule, or (b)

the announcement of an order in open court pursuant to subparagraph (2) of paragraph (b) of this rule, or (c) the service of an amendment made pursuant to the final sentence of subdivision (i) of subparagraph (2) of this paragraph (c), as may be appropriate.

(ii) The request for review shall contain (a) a statement of the facts necessary to an understanding of the controlling question determined by the order of the trial judge, or to an understanding of the extraordinary circumstances warranting interlocutory review by the court despite the absence from the order of a statement by the trial judge as indicated in subdivision (i) of subparagraph (2) of this paragraph (c); (b) a statement of the question or issue involved in the order; (c) a statement of the reasons why, in the opinion of the party requesting review, the order was erroneous and should be reversed or modified; and (d) all papers filed by the parties which relate to the subject matter of the trial judge's order, together with the order. (See Rule 214(c)(2)(ii) as to number of copies.)

(4) Response to request for review. Within 10 days after service of a request for review pursuant to subparagraph (3) of this paragraph (c), an adverse party may file an objection or response thereto.

(5) Denial without prejudice. The court may in its discretion deny any request for review pursuant to subparagraphs (2) and (3) of this paragraph (c) without prejudice to the right of the dissatisfied party to raise the error complained of when the case comes before the court for final judgment. (See Rule 12(d)(1) as to action by court.)

Rule 54. Reference of dispositive motions

(a) Reference to trial judge. In any case the court may by order refer an appeal or dispositive motion to the trial division for an opinion and recommendation for the conclusion of law by a trial judge.

(b) Action by trial judge.

[See main edition for text of (1) and (2)]

(3) Review by the court. (i) If any party is dissatisfied with the recommendation of the trial judge, he shall file with the clerk, within 30 days after service of notice of the filing of the trial judge's recommendation, a request for review of such recommendation and a brief specifying with particularity the matters which he wishes the court to consider in the review and discussing the issues involved. Any adverse party may file an answering brief within 30 days; and within 20 days after the filing of the answering brief, a reply brief may be filed. Briefs shall conform to Rule 144. (See Rule 214(d) as to duplication and number of copies.)

[See main edition for text of (ii) and (iii)]
XI. TRIALS

Rule 134. Trial judge's decision

[See main edition for text of (a) to (h)]