§ 10.05 Accused's Character in Sex Offense Cases: FRE 413-15
| Jurisdiction | United States |
As part of the 1994 Violent Crime Control and Law Enforcement Act, Congress enacted Rules 413, 414, and 415, which govern the admissibility of evidence of an accused's character in sexual assault and child molestation cases, both criminal and civil. Because these Rules brought about a fundamental change in evidence law,43 they "were extraordinarily controversial at the time of their passage."44 Some states have comparable provisions,45 and others have created similar rules by court decision. Some states limit this "lustful disposition" exception to cases involving the same victim, to cases in which the victim is a minor, or to incest cases.46
[A] Sexual-Assault Cases: FRE 413
If a defendant is accused of a sexual assault, Rule 413 permits the introduction of evidence of other sexual assaults.47 In effect, propensity evidence is admissible. Admissibility, however, is not limited to proof of propensity; the rule provides that "[t]he evidence may be considered on any matter to which it is relevant." Moreover, the "rule does not limit the admission or consideration of evidence under any other rule."48
Rule 403. A critical issue is whether Rule 403 applies, giving the trial judge the authority to exclude this type of evidence in certain cases. The cases uniformly apply Rule 403. A number of factors are considered relevant to this analysis:
[1] how clearly the prior act has been proved; [2] how probative the evidence is of the material fact it is admitted to prove; [3] how seriously disputed the material fact is; [4] whether the government can avail itself of any less prejudicial evidence[;] . . . [5] how likely it is such evidence will contribute to an improperly-based jury verdict; [6] the extent to which such evidence will distract the jury from the central issues of the trial; and [7] how time consuming it will be to prove the prior conduct.49
Although the remoteness of the evidence diminishes its probative value, some cases have admitted evidence of conduct that occurred 16-20 years earlier.50 Courts have differed on how the Rule 403 balance should be struck51 and whether a record of Rule 403 balancing is required.52
Due process. Since these provisions effect a radical change in a long-established principle of Anglo-American law,53 they have been challenged on due process grounds. Yet, the courts have rejected this argument.54 In effect, the cases read Rule 403 into these provisions and then use it to parry the due process argument; the authority to exclude evidence under Rule 403 means that evidence with no or little probative value will not be admitted. In contrast, some states have accepted the due process argument as a matter of state law.55
Equal Protection. One criticism of these rules is the disparate treatment between sex offenses and other crimes. Empirical support for such treatment is lacking.56 However, the courts, using "rational basis" scrutiny,57 have rejected equal protection attacks on this basis.58
Consent issue. Another issue is whether the amendment should have been limited to the issue of consent in rape cases—i.e., date rape. Arguably, there is a greater need for character evidence in these cases.59 The rule is not so limited.
Method of proof. Unlike Rule 405(a), the methods of proof are not limited to reputation and opinion evidence. Specific instances are admissible60 and need not have resulted in a conviction.61
Notice. Fifteen-day notice is required and must include statements of witnesses or a summary of the expected testimony.62 The court has discretion to change the notice requirement for good cause.
[B] Child-Molestation Cases: FRE 414
Although Rule 414 tracks Rule 413, there are differences.63 The molestation provision, Rule 414, has an age requirement—the alleged victim must have been under 14 years old at the time of the offense.64 In addition, "Rule 414 eliminates the Rule 413 requirement that the alleged sexual contact have occurred without consent."65
[C] Civil Suits: FRE 415
Rule 415 addresses the admissibility of evidence of an accused's other sex offenses in civil cases. For example, in Johnson v. Elk Lake School Dist.,66 the plaintiff claimed that her guidance counselor had sexually harassed and abused her when she was in high school. The Third Circuit ruled that admissibility in this case was governed by Rule 104(b)'s prima facie standard67 and Rule 403.68 The court went on to uphold the exclusion of the evidence:
[T]he uncertainty of the testimony regarding intentionality, the dissimilarities between the similar and alleged acts, and the isolated nature of the Radwanski incident reduced significantly the probative value of Radwanski's testimony. Given this reduced probative value, any presumption in favor of admissibility was unwarranted, and the District Court's exclusion of the evidence can be justified on grounds that its introduction might have prejudiced Stevens unfairly, misled the jury, confused the issues, and wasted valuable trial time.69
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Notes:
[43] See United States v. Julian, 427 F.3d 471, 486 (7th Cir. 2005) ("alters the legal landscape").
[44] United States v. LeMay, 260 F.3d 1018, 1032 (9th Cir. 2001) (concurring...
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