Balancing Act: Admissibility of Propensity Evidence Under Article I, Section 18(c) of the Missouri Constitution.

AuthorHoltzman, Emily

    The American legal system has a long-standing ban against using character evidence to show a party's propensity to act in conformity with that character. This rule has been especially stringent in the criminal system, where the notion is that when a criminal defendant is tried for a crime, that defendant should face trial only for the crimes charged. However, certain crimes, like sex crimes, can be incredibly difficult to prosecute and, accordingly, victim advocates have pushed for changes to these rules. The Federal Rules of Evidence ("FRE") and several states have enacted rules that allow evidence of prior bad acts to be used as propensity evidence in prosecutions of sex crimes. (1) In 2014, Missouri voters enacted a similar rule for prosecutions of child sex abuse cases by amending the Missouri Constitution. (2)

    These changes to the total bar on propensity evidence have received immense push back. Critics argue that these rules violate the rights normally given to criminal defendants and stress the general unreliability of propensity evidence. Supporters of these rules, on the other hand, argue that because sex crimes are so difficult to prosecute--often due to a lack of eyewitnesses and physical evidence--this evidence is crucial in making sure guilty offenders are properly punished. Supporters and critics disagree about whether sex offenders differ from other criminal offenders in their likelihood to commit the same crime in the future. Now that the amendment has had a few years to affect cases and be heard by Missouri appellate courts and the Missouri Supreme Court, a critical look at the application of this rule in is ripe.

    In Part I, this Note discusses the Missouri rule which allows the admission of propensity evidence in prosecutions of child sex abuse, as codified in Article I, Section 18(c) of the Missouri Constitution. Part II of this Note discusses the state of the law leading to the adoption of FRE 413, 414, and 415. Part II then analyzes how these rules laid the framework for the change reflected in the Missouri Constitution. Part III of this Note highlights case law decided after the Missouri amendment and details how the Missouri Supreme Court's analysis in child sex abuse prosecutions has changed in light of the admissibility of propensity evidence in these cases. Part III also discusses the discretion given to courts in admitting evidence of prior similar crimes. Part IV outlines the arguments for and against this type of evidence. This note concludes by suggesting Missouri courts employ a stronger balancing test to admit propensity evidence in child sex abuse cases as a way to navigate these difficult cases.


    The bar against the admission of character, or "propensity," evidence has a long tradition in common law. (3) In criminal trials, the main concern with allowing a jury to hear evidence of a defendant's prior crimes or other acts is that the introduction of such crimes or acts will be unfairly prejudicial to the defendant, in that a jury might convict a defendant based on those prior acts and not the charged crime. (4) The United States Supreme Court has explained the reasoning behind this rule is not "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 a fair opportunity to defend against a particular charge." (5)

    One of the earliest cases to articulate this justification was People v. Zackowitz, (6) where the Court of Appeals of New York vacated a conviction because character evidence was introduced at trial. (7) In that case, there was no question whether the defendant shot and killed the victim; the issue was instead what degree of murder fit the facts. (8) This hinged on whether the murder was premeditated. (9) At trial, the government presented evidence that Zackowitz kept at least three guns in his apartment, which, according to Chief Judge Benjamin Cardozo, the government used to show Zackowitz's "vicious and dangerous propensities." (10) On appeal, the court concluded that the government presented Zackowitz as a dangerous person--as seen by his gun collection--and because of this, he was more likely to have committed premeditated murder. (11) In fact, at trial the jury found Zackowitz guilty of first-degree murder. (12) The Court of Appeals of New York vacated Zackowitz's conviction because the evidence of Zackowitz's gun collection clearly violated the common law rule against propensity evidence. (13) Specifically, Cardozo explained that in allowing the evidence of Zackowitz's gun collection, he was put on trial for bad conduct that was "more general and sweeping" than the offense charged. (14)

    The FRE were adopted in 1975, and Rule 404 codified the common law rule announced in Zackowitz barring propensity evidence. (15) Rule 404 states that "[e]vidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait." (16) At least forty states have since followed suit by codifying rules against propensity evidence. (17) While rules against propensity evidence had a strong common law foundation and were generally well-accepted, critics soon pointed to the roadblocks these rules presented in prosecutions of rape and sexual assault.

    1. Adoption and Controversy of Federal Rules of Evidence 413, 414, and 415

      In 1994, Congress created FRE 413, 414, and 415 with the passage of the Violent Crime Control and Law Enforcement Act. (18) These rules codified an explicit exception to the prohibition of character evidence in cases of sexual abuse by allowing courts to admit evidence of prior similar crimes or conduct against a defendant accused of rape, sexual assault, or child molestation. Specifically, Rule 413 states "[i]n a criminal case in which a defendant is accused of sexual assault, the court may admit evidence that the defendant committed any other sexual assault." (19) Rule 413 further provides "[t]he evidence may be considered on any matter to which it is relevant." (20) Rule 413 sets out a notice condition as well, stating that a prosecutor must disclose the intent to offer this evidence to a criminal defendant at least 15 days before trial. (21) Rule 414 creates an exception to propensity evidence for criminal cases of child molestation, stating that in those cases "the court may admit evidence that the defendant committed any other child molestation." (22) Rule 414 similarly states that the "evidence may be considered on any matter which it is relevant" and contains the same notice requirement as Rule 413. (23) Rule 415 makes Rules 413 and 414 applicable in any "civil case involving a claim for relief based on a party's alleged sexual assault or child molestation." (24) After the adoption of Rules 413, 414, and 415 into the FRE, states across the country followed suit. (25)

    2. Legislative History of Sex Crimes Exception to Character Evidence in Missouri

      The Missouri Legislature responded to the addition of FRE 413, 414, and 415 with legislation that closely mirrored the federal statute. (26) The legislature decided, however, to limit the exception to the bar on propensity evidence to cases of child molestation. (27) In 1994, the Missouri Legislature enacted Section 566.025 of the Missouri Revised Statutes ("1994 Statute") which provided that, in prosecutions for sex crimes committed against victims under the age of fourteen, "evidence of charged or uncharged crimes involving victims under fourteen years of age shall be admissible for the purpose of showing the propensity of the defendant to commit the crime or crimes with which he is charged." (28) Under the 1994 Statute, such evidence was admissible as long as the prior acts occurred within ten years of the current claims. (29)

      In State v. Burns, (30) the Missouri Supreme Court held that the 1994 Statute violated the Missouri Constitution because it violated criminal defendants' right to be tried "only on the offense charged." (31) Specifically, the court held the statute violated Article I, Section 17, which states "no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information," and Article I, Section 18(a), which states that in "criminal prosecutions the accused shall have the right... to demand the nature and cause of the accusation." (32) A jury convicted defendant Burns of first-degree statutory sodomy and sentenced him to fifteen years in prison. (33) On appeal to the Missouri Supreme Court, Burns challenged the constitutionality of the 1994 Statute because, under the statute, the trial court allowed the government to admit testimony from two witnesses about uncharged prior sexual abuse committed by Burns. (34)

      The Missouri Supreme Court reversed Burns' conviction and remanded for a new trial, holding that the evidence permitted at trial under the 1994 Statute violated Burns' rights under the Missouri Constitution. (35) Specifically, the court stated that admitting into evidence uncharged crimes of the defendant functioned as trying the defendant for crimes not indicted in the current action, which directly contradicted Article I, Section 17 of the Missouri Constitution. (36) The court discussed the longstanding rule against the admissibility of propensity evidence, citing its own precedent that "showing the defendant's propensity to commit a given crime is not a proper purpose for admitting evidence, because such evidence 'may encourage the jury to convict the defendant because of his propensity to commit such crimes without regard to whether he is actually guilty of the crime charged.'" (37)

      After the court invalidated the 1994 Statute as unconstitutional, the Missouri Legislature passed an updated version of the statute that added a balancing test requirement in 2000 ("2000 Statute"). (38) The 2000...

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