Federal Rules of Evidence 413-415 and the struggle for rulemaking preeminence.

• Author: Cavallaro, Rosanna

1. INTRODUCTION

   Imagine that, in response to a growing public perception that homicides were too frequently going unpunished, (1) and that rules of evidence unreasonably insulated juries from the graphic horror of the crime of murder, (2) Congress passed a statute that amended the Federal Rules of Evidence to provide as follows:

   Rule 416. Autopsy Photos

   Any photograph of the body of a victim of an alleged homicide, including any photograph taken during a medical examination, shall be admissible on any matter to which it is relevant. How would autopsy photos offered at a homicide trial after the effective date of this amendment be treated by the trial court? (3) What would be the nature and scope of the trial court's review of those photos under Federal Rule of Evidence 403? (4) Are the answers to these questions determinable exclusively by reference to the language of the amended rule, or the language of the entire body of rules of evidence? (5) Could the answers be found by reference to the legislative history of the amendment, and if so, what weight would the unanimous opposition of the judiciary and the bar have in that analysis? (6) How should the fact of congressional amendment--as opposed to judicial amendment--of the rules affect the longstanding practice of weighing the probative value of all relevant evidence against the danger of unfair prejudice posed by that evidence?

   Although no such amendment has, in fact, been enacted, it would be surprising if trial courts implementing such a rule did not resist, to some degree, congressional imposition of a categorical approach to admissibility in a context in which individualized determinations of probativeness and prejudice by a trial judge have been the norm. It would be still more surprising if trial courts began routinely admitting autopsy photos on the theory that the new rule expressed an "underlying legislative judgment ... that [such evidence] is normally not outweighed by any risk of prejudice or other adverse effects." (7) Most surprising would be the complete failure of reviewing courts to recognize the rule as a manifestation of the now long-simmering feud between Congress and the courts over the politics of evidence rulemaking. (8)

   I pose this hypothetical because federal trial and appellate courts' implementation of the rules relating to evidence of similar crimes in sexual assault and child molestation cases (9) has produced precisely these surprising outcomes. (10) Like autopsy photos, evidence of similar crimes to prove character or propensity has provided the paradigmatic context for the exercise of judicial discretion under Rule 403 to exclude evidence that, although relevant, is also highly prejudicial. (11) Accordingly, a congressional amendment that would, as Rules 413-415 have done, radically alter the' legal landscape and impose a rule of categorical admissibility for propensity evidence poses many of the questions that the hypothetical rule regarding autopsy photos might provoke.

   Almost a dozen years into the life of the special Federal Rules of Evidence governing the use of similar evidence in sexual assault cases, (12) rules whose enactment by Congress was heatedly contested both substantively (13) and procedurally, (14) and whose rationale remains elusive, (15) the battleground has shifted. The question now presented is not whether such rules should be enacted, but how, in trials alleging sexual violence, the general supervisory authority of the trial court under Rule 403 intersects with the broad congressional mandate to admit similar acts evidence of prior sexual assault "on any matter to which it is relevant." (16) The problem can be approached in a number of ways, from one of ordinary statutory construction (17) to one of constitutional due process. (18) This Article proposes to consider trial and appellate court struggles to integrate the similar acts rules with Rule 403 as an episode in the long history of conflicts rooted in norms of institutional competency and separation of powers. (19) Interestingly, the decisional law that has emerged since implementation of the special similar crimes rules demonstrates a very limited degree of judicial resistance to the reassertion of legislative power in this traditionally and structurally judicial space. (20) This level of resistance is somewhat surprising given the long history of judicial primacy in the area of procedural rulemaking, as well as particular perceptions of institutional competency that these special similar acts rules are perceived to undermine. (21) Whereas there are examples of legislative resistance to judicial encroachment on peculiarly legislative functions, (22) and of legislative and judicial resistance to the assertion of executive power in spheres of judicial (23) and legislative authority, (24) so here one might expect courts to resist the congressional effort to strip them of their delegated authority to determine and construct the rules of admissibility in adjudicatory proceedings. (25) This expectation is heightened by the subject matter of the rules enacted by Congress, since similar acts evidence has long been an area in which fact-specific weighing by an experienced trial judge has been deemed essential to a fair trial. (26)

   Moreover, beneath this debate over institutional competency is a foundational inquiry as to the nature of the rules themselves, and the corresponding political and prudential question of which branch of government is most competent to act with respect to those rules. (27) Much turns on this prior question. The rules at issue may be viewed as instantiations of a policy preference that places the public interest in punishment of sexual offenses above the interest in accurate and just adjudication (obtained, in part, by preventing the prejudicial use of prior bad acts). (28) That determination would seem to belong to the legislature--here, Congress--but only to the extent that it does not compromise fundamental constitutional norms of due process or separation of powers. If, however, the rules at issue do compromise constitutional norms, then they are plainly invalid and the proper subject of judicial attention.

   As it happens, the constitutional question is a fairly easy one as a matter of law. (29) The more difficult question arises when, as here, the rules are indeed reflective of a considered legislative preference, but one that is ordinarily governed by a judicially determinable inquiry about relevance, probativeness, and prejudice. Returning to the autopsy photo hypothetical, the question is: should all such questions be left to the judiciary, or is the legislature wise to control or influence outcomes that hinge on such a balance? What is the proper scope of judicial review under the guise of the court's general supervisory authority, contained in Rule 403, when the legislature has spoken so clearly? This Article explores that foundational question. (30)

   Second, this Article considers whether a rule of judicial discretion like Federal Rule of Evidence 403 is the proper vehicle for reasserting judicial preeminence in an interbranch power struggle such as the one I describe. (31) While the judiciary enjoys the power to alter the distribution of powers among the branches through its authority to adjudicate cases and controversies arising under the Constitution, (32) the use of an evidentiary rule of discretion to curtail congressional rulemaking power raises its own issues of legitimacy. This Article explores the justifications for invoking Rule 403 to limit the admissibility of similar acts in sex offense cases when Congress has indicated that a rule of broad admissibility should ordinarily apply.

   Finally, this Article reviews the decisional law of trial and appellate courts presented with the question of the scope of their authority under Rule 403 to exclude that evidence made admissible by the new similar act rules, concluding that although the approach that has emerged to date gives adequate, if limited, play to judicial discretion, it does so without rooting that exercise of discretion in the legitimacy analysis offered herein. Instead, decisions under the new rules regarding similar acts evidence rest on a superficial and textualist rationale and do not explore the deeper question of authority that this clash between Congress and the courts evokes. I suggest that future decisions grounded in this prudential and frankly political analysis would enjoy greater coherence and legitimacy than those that rest exclusively on interpretive tools such a plain meaning and other norms of statutory construction. It would also legitimize a more robust exercise of Rule 403 discretion to exclude prior bad acts in sexual assault cases than has, to date, been applied under the new rules.

2. WHICH BRANCH BEST CONTROLS RULES OF PROCEDURE AND EVIDENCE?

   The question of which branch is best suited to promulgate rules of evidence for application in civil and criminal trials has at least two possible answers. Preliminarily, such rules, like the Rules of Civil Procedure and the Rules of Criminal Procedure, were enacted by Congress, (33) and operate as code with the force of law; (34) as such, they are pieces of legislation and ought, one would suppose, to originate with the legislative branch. (35) Certainly, since their enactment, the Rules of Evidence have been accorded statutory authority and have been interpreted as would other legislatively enacted statutes. (36)

   On the other hand, as Professor Linda Mullenix observed with respect to rules of civil procedure:

   [F]or separation-of-powers purposes one may view the Rules Enabling Act as a codification of the constitutional limits. The constitutional limitation prevents Congress from compromising the constitutional independence of the judiciary by invading the inherent power of the judiciary to create rules of practice and procedure for the courts. The statutory limitation allocates the...