The Admissibility of Evidence of Prior Sex Offenses

This article was originally published in the Fall 2012 issue of the Columbia Undergraduate Law Review.

Connor Montferrat is a senior at Rutgers University. He can be reached at [email protected].

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The Problem

On September 13, 1994, President Clinton signed the Violent Crime Control and Law Enforcement Act of 1994. It was known to most, from Title IV of the act, as the Violence Against Women Act (VAWA). VAWA enacted three new Federal Rules of Evidence: 413, 414 and 415. Most notably, Rule 413(a) amended the Federal Rules of Evidence to allow the admission at trial of evidence of a defendant’s prior acts of sexual assault. In a criminal case in which the defendant is accused of sexual assault, evidence of any prior offense committed by the defendant, including sexual assault, is admissible and may be considered as relevant evidence.¹ Most commentators opposed the bill, arguing it undermined the integrity and rationality of the Federal Rules of Evidence or that Congress was under political pressures to pass laws to fight crime.

During October 17-18, 1994, the Advisory Committee on Evidence Rules met in Washington, D.C. The Committee considered public responses to the proposed new rules, which included eighty-four written comments representing 112 individuals and eight local and eight national legal organizations. The overwhelming majority of judges, lawyers, law professors, and legal organizations who responded opposed Rules 413, 414, and 415. One researcher in particular, Katherine K. Baker, author of “Once a Rapist? Motivational Evidence and Relevancy in Rape Law,” criticizes Rule 413 of the Federal Rules of Evidence by arguing that statistics do not demonstrate high recidivism probability for rapists.

The paper proceeds in four parts. Part II briefly examines the process of proof, the current Federal Rules of Evidence, and case law interpreting these rules. Part III reviews the first reports and recommendations made to Congress by the Advisory Committee and Judicial Conference on the new rules. Part IV considers in detail case law both prior to Rule 413 and after its enactment. Finally, Part V presents arguments in favor of Rule 413, and Part VI argues that Rule 413 should be modified or repealed on the basis of case law, court rulings, and work of researchers showing that the rule violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the Constitution, other additional amendments, and other existing Federal Rules of Evidence.

 

Process of Proof

In criminal cases, the state has the burden of proving the guilt of the defendant beyond a reasonable doubt; this burden rests with the government and never shifts. The defendant has no burden of proof and does not have to take the witness stand to prove his innocence. If and when the defendant chooses to put him- or herself on the stand, however, he or she assumes a burden to produce a sufficient amount of evidence to establish the elements of either of an alibi, self-defense, or insanity.

In order to understand Rule 413, one must first understand both the concept of relevancy and the purpose of the Federal Rules of Evidence. The Federal Rules of Evidence is a code of evidence law governing the admission of facts by which parties in the United States federal court system may prove their cases in both civil and criminal courts. Relevance is the tendency of a given item of evidence to prove or disprove one or more of the legal elements of a case. Evidence also must have probative value, meaning it must tend to establish the proposition for which it is offered, or the proposition must be more likely to be true in light of the evidence than it would be without the evidence. Evidence is considered relevant for admission only if it is both probative and material.² Evidence is material if it is significant to the issue at hand or has some logical connection to a fact relevant to the outcome of a case.

Evidence may be excluded if it does not tend to establish the proposition in question or if the proposition is not material to the outcome of the case. Evidence that is not probative is inadmissible, and the rules of evidence call for such evidence to be excluded from a proceeding or stricken from the record if it is objected to by the opposing counsel.³ Evidence is considered prejudicial if the jury is likely to overestimate the probative value of the evidence or if it will arouse undue hostility toward one of the parties. Evidence is only considered prejudicial, in other words, when it is likely to affect the result of a case in some improper way. The decision to exclude prejudicial evidence is based on whether the evidence has a prejudicial impact that substantially outweighs its probative value.⁴

Evidence can also be excluded if it attacks the defendant’s character. In particular, Rule 404(b) dictates that evidence of prior bad acts is typically inadmissible.⁵ Although evidence of other crimes is clearly inadmissible under this rule, if the accused chooses to testify in his or her own defense, the prosecution is generally permitted to ask about his or her other crimes in cross-examination or during rebuttals. If the defendant puts his or her character at issue on the stand, the prosecution can then impeach the defendant by introducing evidence contrary to the defendant’s testimony.⁶ Evidence of a defendant’s previous conviction of a crime may be considered by the jury only insofar as it affects the credibility of the defendant as a witness; it must never be considered as evidence of guilt of the crime for which the defendant is presently on trial. Prior act evidence is likely to be highly prejudicial.⁷ A criminal case should be based on the facts of what the suspect is being charged for, and not his or her tendency to commit a crime because of previous convictions. However, this is not the case in sexual assault cases due to Rule 413(a).

 

Judicial Proposition

After the Advisory Committee on Evidence Rules met in Washington, it concluded that the rules included in VAWA were unfairly prejudicial, biased against defendants’ behavior and character, not supported by empirical evidence, and that they diminished the protections that defendants have in criminal and civil cases against undue prejudice. In addition, the advisory committee concluded that, because prior bad acts would be admissible, “mini-trials within trials concerning those acts would result when a defendant seeks to rebut such evidence.”⁸ The Advisory Committee on Evidence Rules submitted its report to the Judicial Conference Committee on Rules of Practice and Procedure for review, which then sent its report to the U.S. Congress.

The Judicial Conference listed several factors to be considered while evaluating prior act evidence, such as the proximity in time to the charged or predicate misconduct, the similarity to the charged or predicate misconduct, the frequency of the other acts, and other relevant similarities and differences.⁹ Many circuit courts have a list of factors for district courts to consider in conducting what is known as a Rule 403 balancing test for prior sexual offenses. When dealing with the probative value aspect of this balancing test, courts include factors such as the similarity of the prior acts to the acts charged, temporal proximity, the strength of proof of the prior act, the need for the evidence, and the availability of less prejudicial evidence.¹⁰ Courts have other factors to balance against the probative value of the evidence. These rules contribute to a misinformed jury and distract the jury from the charge on trial. They also have a prejudicial impact on the jurors and allow for a trial within a trial to take place.

 

Prior Bad Acts

Rules banning evidence of prior criminal acts date to early English common law. Some of the oldest English cases to address the ban on character evidence are cited in Wigmore on Evidence, such as Hampden’s Trial and Harrison’s Trial. Courts refused to admit evidence of the defendants’ prior bad acts in these cases. In Hampden’s Trial, the defendant was charged with forging to disturb the peace and stir up sedition in the kingdom. Judge Withins stated,

You know the case lately adjudged in this Court; a person was indicted for forgery, we would not let them give evidence of any other forgeries but that for which he was indicted, because we would not suffer any raking into men’s course of life to pick up evidence that they cannot be prepared to answer to.¹²

In Harrison’s Trial, the defendant was charged with murder. The prosecution called a witness to testify to the defendant’s prior felonious conduct and the Lord Chief Justice Holt asked, “Are you going to arraign his whole life? Away, away! That ought not to be; that is nothing of the matter.”¹³ In the early American case Rex v Doaks,¹⁴ the defendant was indicted for running a brothel, and the Massachusetts Superior Court refused to allow allegations of previous lewd acts.¹⁵ This ruling placed limitations on what evidence can be brought into the courtroom by excluding evidence of prior criminal acts.

In the landmark case People v Molineux,¹⁶ Roland Molineux was charged with first degree murder by poisoning. The prosecution attempted to show that Molineux had a tendency to murder by submitting evidence suggesting that Molineux had been responsible for an earlier homicide. However, Molineux had never been convicted of the prior murder charge. Molineux was convicted, but he appealed to the Court of Appeals of New York, which granted him a new trial. The Court of Appeals ruled that using evidence of an unproven previous act of murder against the defendant in a subsequent unrelated trial violated the basic tenet of the presumption of innocence, and, therefore, that such evidence was inadmissible. Judge Werner wrote in the opinion of the court, “the state cannot prove against a defendant any crime not alleged in the indictment, either as a foundation for a separate punishment, or as aiding the proofs that he is guilty of the crime charged.”¹⁷ This case illustrates the basic principle of the presumption of innocence: defendants cannot be found guilty on the basis of alleged previous criminal behavior.

In Michelson v United States,¹⁸ the defendant was convicted of bribing a federal Internal Revenue Service (IRS) agent after the government proved he paid a large amount to the agent in order to influence his official action. The defendant admitted to the bribe but claimed entrapment because the agent allegedly threatened him. During the trial, after the defendant claimed he had no prior arrests, it was established that he had in fact been arrested for a misdemeanor offense of counterfeiting watch facings. The prosecution then asked a character witnesses whether he knew of the counterfeiting conviction and of another arrest for receiving stolen property twenty-seven years earlier. The Court of Appeals held this evidence admissible and affirmed Michelson’s conviction.

The Supreme Court affirmed this decision in accordance with the English common law rule banning evidence of prior acts. Chief Justice Jackson wrote,

The state may not show [the] defendant’s prior trouble with the law, [or] specific criminal acts…The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so over persuade them as to prejudge one with a bad general record and deny him opportunity to defend against a particular charge.¹⁹

English common law and early U.S. case law, then, tended to exclude prior act evidence.

However, in Williams v State,²⁰ the court admitted prior assault evidence to show plan, scheme, or design. This case led to what is known as “Williams’s Rule,” by which relevant evidence of collateral crimes is admissible at a jury trial when it does not illustrate the “bad character” or “criminal propensity” of the defendant. Florida’s Evidentiary Rule 90.404(2)(a) reads, “Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.”²¹ Some states have created an exception to similar rules, however, under which the prosecution may use a defendant’s prior bad acts to show he or she has a tendency towards certain sexual conduct.

Similarly, in State v Maylett,²² the Idaho district judge held that if evidence of uncharged crimes is relevant to a permissible purpose, such as establishing a common scheme or plan, then the trial judge may exercise his or her discretion in choosing to admit or exclude the evidence by balancing its probative value against the likelihood of prejudice. In this case, Maylett appealed his conviction based on testimony admitted at trial of prior, uncharged sexual contact between Maylett and the victim and victim’s twin sister. The two girls were Maylett’s stepdaughters; all three lived together. The appellate court denied Maylett’s motion to exclude the girls’ testimony but did restrict the testimony to a one-year period preceding the date of the alleged incident.²³ It held the trial court did not abuse its discretion in admitting the testimony of Maylett’s prior sexual conduct. The appellate court also held the court below properly limited the proof of prior acts to a period not too remote in time from the crimes with which Maylett was charged. Finally, the court articulated its balancing rationale and concluded the probative value of the evidence was not substantially outweighed by the prejudice it caused to the defendant.

In the recent Ohio case State v Gresham,²⁴ the court admitted evidence of prior sexual acts to show the defendant’s “lustful disposition” in a case of statutory rape. Roger Scherner and Michael Gresham were separately charged with child molestation. At trial, relying on the recently enacted evidentiary legislation, the state successfully introduced evidence that the defendants had previously committed sex offenses against other children. In Scherner’s case, the trial court ruled that evidence of his prior acts of molestation was also admissible for the purpose of demonstrating a common scheme or plan. For Gresham, the trial court held that evidence of the defendant’s prior conviction for second degree assault with sexual motivation was only admissible due to the statute.

It is evident the legislature believed that just as violent criminals may be inclined to recidivism, individuals committing sex offenses may have a “lustful disposition” toward victims and become repeat offenders. Under the lustful disposition exception, courts can admit evidence of a defendant’s prior sexual misconduct “‘for the purpose of showing the lustful inclination of the defendant toward the offended [person], which in turn makes it more probable that the defendant committed the offense charged.’”²⁵ Based upon a defendant’s past sexual abuse of a certain victim, he or she is considered more likely to have committed the charged sexual offense against the same victim. The Washington Supreme Court made split rulings in the Gresham and Scherner cases. It affirmed Scherner’s conviction and noted the court below did not abuse its discretion in admitting the evidence showing a scheme or plan. In Gresham’s case, the Court noted Rule 413 conflicts with Rule 404(b) and held that its enactment violates the separation of powers doctrine; the statute, accordingly, was held to be unconstitutional.  The court, in other words, effectively reversed Gresham’s conviction and held that admitting evidence of his prior conviction was not harmless error. In each case, however, evidence was admitted at trial to show the lustful disposition of the defendant against the victim, ostensibly making it more probable that the defendant committed the charged offense.

 

Rule 413

One reason Rule 413 was adopted was due to competing claims of consent in the courtroom: often, the victim is the only witness to his or her rape, and the defendant’s only defense is the alleged consent of the victim. Therefore, evidence that the defendant has committed other sexual assaults can be considered important when evaluating competing claims of consent. In State v Rusk,²⁶ the prosecution had to prove a sexual encounter occurred without consent and by forcible compulsion. In cases of alleged date rape like this one, the issue is generally whether the jury believes the complaining witness that he or she was forcibly coerced. The Maryland Court of Special Appeals determined there was sufficient evidence on which the jury could conclude the parties’ sexual encounter was non-consensual, and the conviction was affirmed. This court found that force is an essential element in the crime of rape, and the victim has to resist or try to prevent the encounter for his or her safety. The prosecutor appealed this decision and the Court of Appeals, Maryland’s highest court, reversed the Court of Special Appeals and upheld the conviction, stating the victim’s fear of the assailant can be enough, but the “victim’s fear must be reasonably grounded in order to obviate the need for either proofs of actual force on the part of the assailant or physical resistance on the part of the victim.”²⁷

In some states, a victim does not have to violently resist or be physically attacked for a sexual encounter to qualify as sexual assault; the victim merely has to say the word “no.” In cases of competing claims of consent, which often turn on whether the victim adequately conveyed his or her lack of consent, it can be helpful for a jury to be aware of a defendant’s prior acts. Rule 413 helps the jury to determine the credibility of the defendant’s story when the victim may not have any reliable corroborating witnesses or material evidence to support her claim.

In New Jersey in July, 1994, a seven-year old girl named Megan Kanka was lured into a neighbor’s home with the hope of seeing a puppy. She was subsequently sexually assaulted and murdered by her neighbor. Prior to living there, the murderer had already served six years in prison for aggravated assault and attempted sexual assault on another child; the Kanka’s were not aware that a previously convicted sex offender lived across the street. As a result of this case, “Megan’s Law” was enacted by the New Jersey state legislature and later became federal law. Under Megan’s Law, a convicted sex offender must notify the community when he or she moves into a neighborhood.²⁸ A case like Megan Kanka’s might have been avoided if her murderer’s prior convictions were taken into account during his previous trials. Instead of living next door to the victim, he could have been serving a longer sentence or been placed in mental health facility due to evidence of prior sexual assault. Political pressure mounted after Megan’s murder and led to the passage of stricter laws against sex offenders.

Another argument in favor of Rule 413 is that similar past conduct is especially prevalent in sexual offenders. Recidivism rates for convicted child molesters are higher than recidivism rates for those convicted of non-violent crimes and are comparable to those convicted of other violent crimes.²⁹ In United States v Meacham,³⁰ the defendant argued on appeal that the trial court improperly applied Rules 403, 404(b), and 414 by admitting evidence that he molested two of his stepdaughters more than thirty years prior to the charged offense, thereby depriving him of his right to a fair trial. Meacham was convicted of one count of transporting a twelve-year-old minor across state lines with the intent that she engage in sexual activity. The circuit court held that the court below did not abuse its discretion in admitting the prior acts evidence under Rule 404(b). Emphasizing the political nature of the rules, however, the circuit court noted that Rule 414 was not developed through the usual Judicial Conference rulemaking process, but instead by the legislative process.³¹ While it may be true that in some cases, sex offenders still feel a temptation to abuse children decades after their first offense, the enacted Rules of Evidence potentially carry serious constitutional implications.

 

Repeal Rule 413

Rule 413 violates the Due Process Clause of the Constitution, the Equal Protection Clause, and Federal Rules of Evidence 403 and 404. Courts have uniformly dismissed the argument that the new rules violate the principle of equal protection because they do not place individuals accused of sexual crimes into a “suspect class” and rationally relate to a legitimate government purpose, without considering the rules’ dire effects.²⁵ Similarly, courts have developed the concept of “lustful disposition” in order to admit prior bad act evidence. The use of “lustful disposition” in Gresham should be considered a breach of Rule 403 because it is highly prejudicial to the defendant, and because Rule 404(b) states that evidence of prior crimes, wrongs, or acts is not admissible to impeach a defendant’s character or demonstrate a pattern of illegal behavior.  Courts should evaluate what motivates perpetrators of rape when they consider the admissibility of prior act evidence rather than relying on uninformed, unconventional terminology and outmoded, traditional thinking about rapists. Reform of the new rules, if it is to come at all, must emerge from the courts.

The rules’ legislative history indicates that the sponsors of VAWA also recognized the conflict between Rules 403 and 413 and did intend to keep the protections of Rule 403 available to judges faced with prior sexual misconduct evidence. Senator Bob Dole (R-KS) and Representative Susan Molinari (R-NY) first proposed the new rules in 1991 by introducing amendments to the Women’s Equal Opportunity Act. Representative Molinari (NY-13) stated, “In other respects, the general standards of the rules of evidence will continue to apply, including the restrictions on hearsay evidence and the court’s authority under evidence Rule 403 to exclude evidence whose probative value is substantially outweighed by its prejudicial effect.” She announced her intention to block the passage of VAWA unless it included the new evidentiary rules, insisting that “the proposed reform is critical to the protection of the public from rapists and child molesters.”³² Representative Molinari, along with the rest of Congress and President Clinton, clearly ignored the dubious constitutionality of the rules. Regardless of political pressure, they should not have lost focus on the rule of law.  

The Judicial Conference urged Congress to abandon the rules completely; the Advisory Committee made other arguments. One of the Committee’s objections to the new rules, including Rule 413, was that they would result in mini-trials within trials. Disregarding the Fifth Amendment, this would place defendants in double jeopardy: the law forbids a defendant from being tried more than once on the same or similar charges following a legitimate acquittal. Rule 413 also violates the Sixth Amendment by leading to impartial juries.²⁸ In regards to the Fourteenth Amendment, in United States v Wright,³³ the United States Court of Appeals for the armed forces rejected the defendant’s equal protection claim.³⁴ In addition, in United States v Castillo,³⁵ the Tenth Circuit held that Rule 414 did not violate the defendant’s right to due process and that Rule 403 adequately protected the defendant’s rights.³⁶ In Spencer v Texas,³⁷ four dissenting Supreme Court justices argued that evidence of prior crimes introduced for no purpose other than to show criminal disposition violates the Due Process Clause.³⁸ Prior act evidence encourages juries to focus on the defendant’s character rather than whether the state has proved the defendant’s guilt beyond a reasonable doubt.

Excluding altogether or limiting prior act evidence to convictions would relieve defendants from having to contest uncharged offenses at trial and reduce the possibility of jurors punishing prior bad acts of the accused. Jurors may feel that at the defendant’s first trial he or she was wrongfully set free and become more likely to punish the defendant at his or her current trial.³⁹

If Rule 413 is not repealed, the courts should at least place limitations on admissible evidence of prior bad acts. Federal courts might look to state statutes for guidance in this regard. Alaska’s Rule 404(b-2)[i], for example, has exceptions to the admissibility of evidence of prior acts, including a ten-year limit.⁴⁰ Another example is found in Arizona, where it is required that prior sexual offenses be within a close timeframe to the offense charged, or else the prosecution must present expert medical testimony establishing the defendant’s propensity to commit the crime charged.⁴¹ This would prevent cases such as United States v Gabe,⁴² in which evidence was admitted of an offense twenty years prior to the crime charged, or in Meacham, in which offenses allegedly committed twenty-five to thirty years prior were admitted.⁴³ However, states ranging from Colorado, Massachusetts, Minnesota, Illinois, Indiana, North Carolina, New Jersey, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, and Washington have state evidentiary laws identical to the Federal Rules of Evidence or have additional sections regarding the admissibility of evidence of prior bad acts.⁴⁴ Congress and the federal courts should follow the example set by states like Arizona and Alaska.

Courts might also learn from scholars who have studied recidivism rates and the impact of propensity evidence on criminal trials. Rule 413 is based on exceptions in Rule 404(b) that allow evidence if it demonstrates certain factors, such as motive or opportunity. Katherine Baker shows through her study of recidivism rates that rapists are not more likely to repeat their acts than violent offenders who commit robbery or assault, contrary to what most advocates of Rule 413 argue.⁴⁵ Baker asserts that courts need to consider the motivational typologies she presents to understand why men rape. She presents reasons including a desire for sex or power over other men or women, or a desire to demonstrate their strength or masculinity to other men. Courts instead typically rely on terminology like “lustful disposition,” traditional assumptions of motive such as sexual desire, and other inadequate, over-simplified rapist stereotypes.⁴⁶ Judges and jurors must be informed and recognize the many different aspects of rape in order to develop a more nuanced understanding of the exceptions to the evidentiary rules. Susan M. Davies believes a person’s behavior can be predicted after one observes that person’s conduct in similar situations.⁴⁷ This theory is found in past decision-making of judges and jurors in the cases discussed above in which evidence of prior sexual offenses was admitted. Reliance on this type of evidence has become the norm within the courtroom, even though Baker’s research demonstrates that evidence of a prior rape is more likely to be prejudicial than it is to demonstrate motive.

Anne E. Kyl also argues that propensity evidence has a significant impact on jurors. She states that “character propensity evidence creates an inferential sequence within the minds of jurors that the accused has a unique, abnormal propensity to commit certain acts; that he acts on that propensity; and having done so repeatedly in the past, he will do so in the future.”⁴⁸ Put simply, there has never been a case in which evidence of prior bad acts has led directly to an acquittal; Jason McCandless argues that Rules 413 and 414 will “greatly increase the risk of convicting an innocent person.”⁴⁹ Prosecutors should not present evidence of a defendant’s prior uncharged sexual misconduct in order to demonstrate that the defendant committed the sex offense with which he or she is presently charged. Jurors should not reach verdicts based on character evidence and evidence of the defendant’s prior sexual offenses, whether he or she was convicted or acquitted. Scholars, researchers, lawyers, the Advisory Committee, and the Judicial Conference saw and predicted the deleterious effects of Rule 413, yet Congress has not recognized the faults of this rule.

 

Conclusions

This paper has considered the enactment of Federal Rule of Evidence 413. It first discussed the process of proof in criminal trials before considering the comments and suggestions regarding the new rules made by the Advisory Committee on Evidence Rules and the Judicial Conference. Cases demonstrating the effects of prior bad act evidence reveal the negative impact of Rule 413. Cases from the English common law held that prior act evidence violates the presumption of innocence, making it inadmissible. Other American courts have separated defendants accused of sexual crimes by using terms like “lustful disposition” or “depraved sexual desire,” which has furthered stereotyping of accused sex offenders and eroded the rights of defendants on trial.

Furthermore, courts have abused their discretion when they have unfairly used the balancing test to admit evidence even when it exerts a significant prejudicial impact on the jury. The Meacham court abused its discretion by allowing a thirty-years prior offense into evidence. In another case, a court allowed prior act evidence even though the defendant presented a credible alibi to the crime charged,⁵⁰ referencing Representative Molinari’s unreasonable statement, “a history of similar acts tends to be exceptionally probative because it shows an unusual disposition of the defendant—a sexual or sadosexual interest in children—that simply does not exist in ordinary people.”⁵¹ Congress blatantly ignored the report and recommendations regarding the new rules submitted by the Advisory Committee and the Judicial Conference and passed the politically motivated Violence Against Women Act to further its agenda in complete disregard of the Constitution.

Specifically, Rule 413 violates the Fifth and Sixth Amendments and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. In addition, it breaches Rules 403 and 404. Congress should pass a new law repealing or modifying Rule 413, but because Congress is not expected to amend or abolish any federal rule of evidence in the near future, the courts should provide reform. Statutes like those in Florida, Alaska, and Arizona set examples for potential amendments to Rules 404 and 413 and are a great foundation for reforming the current rules. Courts need to fight against injustices such as rape, sexual assault, and child molestation, but while doing so they must protect the rights of the accused while respecting precedent, Congressional intent, and the Constitution.

¹ FED. R. EVID. Rule 413. Evidence of Similar Crimes in Sexual Assault Cases.

(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

(d) For purposes of this rule and Rule 415, “offense of sexual assault” means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved—

(1) any conduct proscribed by chapter 109A of title 18, United States Code;

(2) contact, without consent, between any part of the defendant’s body or an object and the genitals or anus of another person;

(3) contact, without consent, between the genitals or anus of the defendant and any part of another person’s body;

(4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or

(5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).

² FED. R. EVID.  Rule 401. Definition of “Relevant evidence.” Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

³ FED. R. EVID.  Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible. “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.”

⁴ FED. R. EVID. Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

⁵ FED. R. EVID. Rule 404 (b). Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes. (b) Other crimes, wrongs, or acts. “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.”

⁶ Kadish, Schulhofer Paulsen. Criminal Law and Its Processes Cases and Materials, Eighth Edition, Aspen Publishers: 2007, p. 21. “Character is never an issue in a criminal prosecution unless the defendant chooses to make it one.” (Citing People v Zackowitz, 254 NY 192 (1930)).

⁷ Lempert, Richard O. & Stephen A. Saltzburg, A Modern Approach to Evidence. West Group, 1982. pp. 218-219.

⁸ Arizona State University, Sandra Day O’Connor College of Law. Federal Rules of Evidence, Notes to Rule 413.  <http://homepages.law.asu.edu/~kayed/class/evidence/rules/N415.htm>

“The advisory committee concluded that, because prior bad acts would be admissible… mini-trials within trials concerning those acts would result when a defendant seeks to rebut such evidence. The committee also noticed that many of the comments received had concluded that the Rules, as drafted, were mandatory—that is, such evidence had to be admitted regardless of other rules of evidence such as the hearsay rule or the Rule 403 balancing test. The committee believed that this position was arguable because Rules 413-415 declare without qualification that such evidence ‘is admissible.’

⁹ Ojala, Erik D. “Propensity Evidence Under Rule 413: The Need For Balance.” Washington University Law Quarterly, Volume 77:947, p. 965. “In its report to Congress, the Judicial Conference suggested an amendment to Rules 404 and 405 to explicitly direct the court to use Rule 403 in evaluating the probative value of evidence. The Judicial Conference enumerated the following factors as relevant to a Rule 403 determination: (i) proximity in time to the charged or predicate misconduct; (ii) similarity to the charged or predicate misconduct; (iii) frequency of the other acts; (iv) surrounding circumstances; (v) relevant intervening events; and (vi) other relevant similarities or differences.”

¹⁰ Orenstein, Aviva A. “Deviance, Due Process, and the False Promise of Federal Rule of Evidence 403” (2005), Cornell Law Review, Volume 90:1487, p. 1523, “On the probative value side of the balancing scale, courts include the following factors: (1) ‘the similarity of the prior acts to the acts charged,’ (2) ‘temporal proximity,’ (3) “the ‘presence or lack of intervening circumstances,’”(4) ‘the frequency of the prior acts,’ (5) the strength of proof of the prior act, (6) the ‘relationship between the parties,’ (7) the need for the evidence, and, relatedly, (8) the potential for less prejudicial evidence.”

¹¹ United States v Enjady, 134 F.3d 1427, 1431 (10th Cir. 1998).

“When analyzing the probative dangers, a court considers: 1) how likely is it such evidence will contribute to an improperly-based jury verdict; 2) the extent to which such evidence will distract the jury from the central issues of the trial; and 3) how time consuming it will be to prove the prior conduct.”

¹² Leonard, David P. “In Defense of the Character Evidence Prohibition: Foundations of the Rule against Trial by Character.” Indiana Law Journal, Volume 73, Number 1, Winter 1997, pp. 1167. One of the “oldest cases Wigmore cited [was] Hampden’s Trial….Judge Withins stated: You know the case lately adjudged in this Court; a person was indicted for forgery….”

¹³ id. “When the prosecution attempted to offer propensity evidence against the defendant, Justice Holt remarked: ‘Hold, what are you doing now? Are you going to arraign his whole life? Away, away, that ought not to be; that is nothing to the matter.’”

¹⁴ Quincy 90 (Mass. Super. Ct. 1763).

¹⁵ Massachusetts Digest: A Digest of the Reported Decisions of the Supreme Judicial Court of the Commonwealth of Massachusetts from 1804 to 1879, With References to Earlier Cases, Volume 2, Little, Brown, and Company, 1881. “In support of an indictment for keeping a bawdy-house, evidence of acts of lasciviousness by the prisoner while a lodger, and before she was the mistress of the house, is inadmissible. Rex v Doaks, Quincy, 90 (1763).”

¹⁶ 18 NY 264 (1901).

¹⁷ People v Molineux, 168 NY 264 (1901).

“First in order, if not in importance, is the question whether any evidence was admissible concerning the alleged killing of Barnet.…The general rule of evidence applicable to criminal trials is that the state cannot prove against a defendant any crime not alleged in the indictment, either as a foundation for a separate punishment, or as aiding the proofs that he is guilty of the crime charged. (1 Bishop’s New Crim. Pro. Sec. 1120.) This rule, so universally recognized and so firmly established in all English-speaking lands, is rooted in that jealous regard for the liberty of the individual which has distinguished our jurisprudence from all others.”

¹⁸ 335 U.S. 469 (1948).

¹⁹ Michaelson v United States, 335 U.S. 469 (1948).

“The State may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime…it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge…despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.”

²⁰ 110 So.2d 654 (Fla., 1959).

²¹ Florida Statues, Title VII, Chapter 90, Evidence Code.

“Character evidence; when admissible.”

(1) Character Evidence Generally—Evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion, except: (a) Character of accused.—Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the trait.

(2) Other Crimes, Wrongs, or Acts (a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

²² 108 Idaho 671, 701 P.2d 291 (Ct. App. 1985).

²³ State v Maylett, 701 P.2d 291, 108 Idaho 671 (1985) (Burnett concurring).

“These rules are not mere precatory guides to discretion; they are standards controlling the outcome of evidentiary questions. Discretion is properly exercised only when a rule of evidence calls for it…if but only if, evidence of uncharged crimes is relevant to a permissible purpose, such as establishing a common scheme or plan, then the trial judge may exercise discretion in balancing the probative value against the likelihood of unfair prejudice.”

²⁴ No. 84148-9, slip op. (Wash. Sup. Ct., Jan. 5, 2012),

²⁵ State v. Gresham, No. 84148-9, slip op. (Wash. Sup. Ct., Jan. 5, 2012).

²⁶ 289 Md. 230 (1981)

²⁷. State of Maryland v Edward Rusk, 289 Md. 230, 424 A.2d 720 (1981). <http://www.invispress.com/law/criminal/rusk.html

²⁸ Office of the Attorney General. Department of Law and Public Safety. “Megan’s Law” <http://www.nj.gov/njsp/spoff/megans_law.html>. 12 Nov. 2012.

²⁹ Matton, Danielle. New Hampshire Bar Association. “An Examination of FRE 413, 414, 415, and the Adoption of these Rules by the States.” <http://www.nhbar.org/publications/archives/display-journal-issue.asp?id=257>. September, 2000. 12 Nov. 2012

³⁰ 115 F.3d 1488 (10th Cir. 1997).

³¹ Bureau of Justice Statistics, U.S. Dept. of Justice, Pub.No. NCJ-163392, Sex Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault (Feb. 1997) <http://bjs.ojp.usdoj.gov/>. 12 Nov. 2012.

³² United States v Meacham 115 F.3d 1488, 1495 (10th Cir. 1997).

“The rule, however, was not developed through the usual Judicial Conference rulemaking process, but by Congress itself. The historical notes to the rules and congressional history indicate there is no time limit beyond which prior sex offenses by a defendant are inadmissible….Under Rule 414 the prior acts evidence must still be relevant and followed by a Rule 403 balancing…the prior acts evidence was not so prejudicial as to violate the defendant’s constitutional right to a fair trial.”

³³ 53 MJ 476 (Armed Forces App. 2000).

³⁴ United States v Wright, 48 MJ 896, 901 (A.F. Crim. App. 1998).

“The appellant has not identified, nor are we aware of any holding by the Supreme Court, or any other court for that matter, which identifies sex offenders as a ‘suspect class.’”

³⁵ 140 F.3d 874 (10thCir. 1998).

³⁶         1. Johnson v Elk Lake School Dist., 283 F. 3d 138 (3rd Cir. 2002).

“We also conclude, however, that even when the evidence of a past sexual offense is relevant, the trial court retains discretion to exclude it under Federal Rule of Evidence 403 …We conclude that the District Court did not abuse its discretion in excluding Radwanski’s testimony, and, finding that Johnson’s other allegations of trial error are without merit, will affirm the District Court’s order denying Johnson’s motion for a new trial.”

2. United States v Wright, 48 MJ 896, 901 (A.F. Crim. App. 1998).

“The appellant has not identified, nor are we aware of any holding by the Supreme Court, or any other court for that matter, which identifies sex offenders as a ‘suspect class.’”

3. United States v Enjady, 134 F.3d 1427, 1431 (10th Cir. 1998).

“The Supreme Court has defined narrowly those infractions that violate fundamental fairness, and declared that ‘[b]eyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation  Defendant asserts that the historic exclusion of prior bad acts evidence to prove propensity to commit the charged crime is so basic to our criminal justice system that it falls within the narrowly defined “fundamental fairness” arena.’”

³⁷ 385 U.S. 554 (1967).

³⁸         1. 140 CONG. REC. S12990 (daily ed. Sept. 20, 1994):

Statement of Senator Dole: “The presumption is that the evidence admissible pursuant to these rules is typically relevant and probative, and that its probative value is not outweighed by any risk of prejudice”;

2. 140 CONG. REC. H8968, H8991 (daily ed. Aug. 21, 1994):

Statement of Rep. Molinari:“In other respects, the general standards of the rules of evidence will continue to apply, including the restrictions on hearsay evidence and the court’s authority under evidence Rule 403 to exclude evidence whose probative value is substantially outweighed by its prejudicial effect”;

3. 140 CONG. REC. H5438 (daily ed. June 29, 1994):

Statement of Rep. Kyl: “The trial court retains total discretion to include or exclude this type of evidence.”

³⁹ U.S. Const. Amend VI. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury …confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

⁴⁰ In a decision subsequently affirmed by the United States Court of Appeals for the Armed Forces, the United States Air Force Court of Criminal Appeals held, “the reasoning in Mound, 149 F.3d at 801 and Castillo, 140 F.3d at 883 provides ample justification for rejecting the equal protection claim and we do so now” (United States v Wright, 48 MJ 896, 901 (A.F. Crim. App., 1998), aff’d 53 MJ 476 (Armed Forces App., 2000)). The court here references the following holding of the Mound court:

“We…reject Mound’s argument that Rule 413 is a violation of his equal protection rights. Because Rule 413 does not burden[] a fundamental right, and because sex-offense defendants are not a suspect class, we must uphold the legislative classification so long as it bears a rational relation to some legitimate end.” United States v Mound, 147 F.3d 799, 801 (8th Cir. S.D. 1998).

⁴¹ United States v Castillo, 140 F.3d 874 (10th Cir. 1998).

“Our review of the record demonstrates that the court clearly considered and applied the Enjady factors…[the evidence] nor confused or misled the jury… Specifically, we held that Federal Rule of Evidence 414 was constitutional.”

⁴² 237 F.3d 954, 960 (8th Cir. 2001).

⁴³ Spencer v Texas, 385 U.S. 554, 574 (1967).

“It seems to me that the use of prior-convictions evidence in these cases is fundamentally at odds with traditional notions of due process…because it needlessly prejudices the accused without advancing any legitimate interest of the State. If I am wrong in thinking that the introduction of prior-convictions evidence serves no valid purpose I am not alone….[T]his failure, in my view, undermines the logic of the Court’s opinion.”

⁴⁴ People v Frazier, 89 Cal. App.4th 30, 107 Cal. Retr. 2d 100 (2001).

“A risk does exist a jury might punish the defendant for his uncharged crimes regardless of whether it considered him guilty of the charged offense especially where, as here, the uncharged offenses…were much more serious than the charged offense.”

⁴⁵ Alaska Rules of Evidence. (b) Other Crimes, Wrongs, or Acts. (2) In a prosecution for a crime involving a physical or sexual assault or abuse of a minor, evidence of other acts by the defendant toward the same or another child is admissible if admission of the evidence is not precluded by another rule of evidence and if the prior offenses (i) occurred within the 10 years preceding the date of the offense charged; (ii) are similar to the offense charged; and (iii) were committed upon persons similar to the prosecuting witness.

⁴⁶ State v Treadaway, 568 P.2d 1061, 1065 n.2, 1067 (Ariz. 1977). A prior, separate sex offense with a different victim as remote as three years earlier is almost never admissible and especially not for the purpose of showing only defendant’s propensity to commit the crime charged.

⁴⁷         1. United States v Meacham, 115 F.3d 1488, 1495 (10th Cir. 1997). “There is no time limit beyond which prior sex offenses by a defendant are inadmissible.”

2. United States v Gabe, 237 F.3d 954, 960 (8th Cir. 2001). “Prior victim’s testimony is prejudicial to Gabe for the same reason it is probative—[twenty years later]—it tends to prove his propensity to molest young children in his family.”

⁴⁸         1. The Federal Rules of Evidence are duplicate to Rule 404(b) in the states of Colorodo, Massachusetts, New Jersey, Oregon, Oklahoma, South Carolina, and Washington. However, Illinois, Indiana, Pennsylvania, and Texas have additional sections stating, in sum and substance, “In a criminal case in which the prosecution intends to offer evidence under subdivision (b), it must disclose the evidence, including statements of witnesses or a summary of the substance of any testimony, at a reasonable time in advance of trial, or during trial if the court excuses pretrial notice on good cause shown.”

2. In Minnesota, Subsections of Rule 404(b) include “(1) the prosecutor gives notice of its intent to admit the evidence consistent with the rules of criminal procedure; (2) the prosecutor clearly indicates what the evidence will be offered to prove; (3) the other crime, wrong, or act and the participation in it by a relevant person are proven by clear and convincing evidence; (4) the evidence is relevant to the prosecutor’s case; and (5) the probative value of the evidence is not outweighed by its potential for unfair prejudice to the defendant.”

3. In North Carolina, an additional amendment of Rule 404(b) includes, “Admissible evidence may include evidence of an offense committed by a juvenile if it would have been a Class A, B1, B2, C, D, or E felony if committed by an adult.”

⁴⁹ Baker, Katherine. “Once a Rapist? Motivational Evidence and Relevancy in Rape Law,” 110 Harvard Law Review 563 (1997). “A 1989 Bureau of Justice Statistics recidivism study found that only 7.7% of released rapists were rearrested for rape. In contrast, 33.5% of released larcenists were rearrested for larceny, 31.9% of released burglars were rearrested for burglary, and 24.8% of drug offenders were rearrested for drug offenses. Only homicide had a lower recidivism rate than rape.”

⁵⁰ id at 612. “Judges should incorporate these typologies into Rule 404(b) determinations of admissibility because the traditional assumptions about rapist motivation that underlie Rule 413 are inadequate.”

⁵¹ Davies, Susan M. “Evidence of Character to Prove Conduct: A Reassessment of Relevant.” 27 Crim. L. Bull. 504, 518-19 (1991). “‘Interactionism,’ this new theory rejects the contention that a person’s character disposition has minimal predictive value. Rather, this approach stresses the necessity of considering both the defendant’s relevant traits and the specific situation in determining subsequent behavior.”

⁵² Kyl, Anne E. “The Propriety of Propensity: The Effects and Operation of New Federal Rules of Evidence 413 and 414,” 37 Ariz. L. Rev. 659 (1995).

⁵³ McCandless, Jason L. “Prior Bad Acts and Two Bad Rules: The Fundamental Unfairness of Federal Rules of Evidence 413 and 414,” 5 Wm. & Mary Bill of Rts. J. 689 (1997), p. 3.

⁵⁴ United States v Charley, 189 F.3d 1251, 1257–59 (10th Cir. 1999).

“The jury upheld the conviction on six of seven counts despite accused presentation of credible alibi and that “[n]one of the law enforcement officers were able to discover any direct evidence of the reported incidents. There were no eyewitnesses; there was no physical evidence; and Defendant denied the accusations. However, from the outset of the girls’ disclosures, everyone involved, including those providing treatment, was aware that Defendant had been convicted in 1994 for sexually abusing his five-year-old granddaughter.”

⁵⁵ Orenstein, Aviva A., “Deviance, Due Process, and the False Promise of Federal Rule of Evidence 403” (2005), 90 Cornell L. Rev 1487, 1524.

 

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