Federal Rule of Evidence 413: a dangerous new frontier.

• Author: Sheft, Mark A.
• Position: Admissibility of prior acts as evidence in rape cases

INTRODUCTION

Late last summer, as part of the Violent Crime Control and Law Enforcement Act of 1994, Congress profoundly changed the law of evidence by enacting Federal Rule of Evidence 413 ("Rule 413").(1) In a federal sexual assault trial,(2) this rule declares admissible evidence of the defendant's prior instances of sexual violence, even if relevant only as evidence of his disposition or propensity to engage in such conduct.(3) Rule 413 thus carves out an exception to the general principle that the state cannot use a defendant's prior deeds to demonstrate his propensity to act in conformity with a criminal character defect.(4) Altering three hundred years of Anglo-American jurisprudence, this revision is one of the most significant evidentiary developments since the promulgation of the Federal Rules of Evidence ("Rules") in 1975.(5)

Although Rule 413's broad rule of admissibility applies only in federal rape cases--only a tiny fraction of all rape prosecutions nationwide--it may represent the opening salvo in a nationwide campaign on the state level to reform evidence law in rape cases.(6) Most states followed codification of the Federal Rules of Evidence by enacting Rule 404(b) or a similarly-worded rule proscribing the use of character evidence to establish the accused's guilt of the crime charged.(7) Some state legislatures will likely follow Congress' lead since they are institutionally most accountable and accessible to citizens frustrated by the high incidence of rape. Yet, by applying a special rule in such cases, Congress contravenes the basic premise that evidentiary rules "focus on issues common to all trials and do not develop differently for each substantive crime . . ."(8) Moreover, the legitimate desire to minimize sexual violence has produced a rule that imperils the presumption of innocence by inviting jurors to convict accused rapists for who they are, rather than for what they have done.(9)

This Article argues that Rule 413 is an ill-conceived and unconstitutional measure which the federal courts should invalidate and the states should ignore. This study first examines the evidentiary rules governing admission of uncharged misconduct in criminal cases generally and rape cases specifically. It then explores the changes wrought by Rule 413 and assesses their wisdom and impact. Finally, the author contends that Rule 413 unconstitutionally infringes upon the due process and equal protection rights of defendants prosecuted for rape in federal court.

1. THE ANCIEN REGIME: THE LAW GOVERNING UNCHARGED MISCONDUCT EVIDENCE BEFORE RULE 413(10)

   Before assessing the impact of Rule 413, we must study the evidentiary framework within which Congress has placed it.(11) The Rules embrace the "presupposition involved in the very conception of a rational system of evidence"(12) that relevancy is the touchstone of admissibility.(13) Relevance does not inhere in any particular item of evidence but is a relational concept requiring that proffered evidence tend to make more or less probable a disputed and material fact.(14) This relational aspect of relevancy, known as logical relevancy, is a necessary but alone insufficient precondition to an item's admission into evidence. Evidence must also be legally relevant, which means the value of admitting probative evidence is not substantially outweighed by the risk of a decision infected by emotion and bias or of confusion of the issues. Rule 403 of the Federal Rules of Evidence, a trial judge's most significant source of discretionary authority, articulates this legal relevancy requirement(15) and requires the judge to balance the government's need for such evidence against the countervailing probative dangers: whether the evidence will distract or confuse the jury or contribute to an improperly-based verdict.(16)

   For some three hundred years, Anglo-American jurists and commentators have purported to consider legally irrelevant the use of uncharged misconduct evidence to demonstrate the evil character or criminal propensities of the defendant.(17) Unlike Continental legal systems, which more closely approximate a truth-seeking judicial model by liberally admitting evidence regarding the defendant's character, disposition, and habits,(18) the American criminal justice system claims to adjudicate what a defendant has done, rather than who the defendant is.(19) The first sentence of Rule 404(b) codifies this proposition by stating that: "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."(20) Instead, prior acts evidence is admissible only under a non-character theory of logical relevance, "such as [to prove] motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . ."(21)

   The admission of uncharged misconduct evidence in federal court, and to a large extent in state courts, does not require that the government fit the proffered evidence into one of the categories enumerated in Rule 404(b).(22) Evidence fitting into one of the categories would be sufficient, assuming the item was also legally relevant under Rule 403. However, the rule is inclusionary 23 and requires only that the state propound some theory of logical relevance that does not ask the jury to infer from the evidence the defendant's criminal character or propensity. For example, prior acts evidence is permitted if offered not as character evidence predictive of the defendant's behavior but rather to demonstrate the statistical improbability that a convicted rapist would now stand wrongfully accused of rape. Because this theory of logical relevance, known as the doctrine of chances, "rests on an objective ... improbability rather than a subjective probability based on the defendant's character,"(24) it satisfies 404(b)'s strictures.

   Despite the apparent clarity of these strictures, judicial treatment of propensity evidence in rape cases before promulgation of Rule 413 was not as uniformly hostile as the text of Rule 404(b) suggests. Indeed, manipulation and expansion of the Rule 404(b) theories of logical relevance amply demonstrate this judicial ambivalence toward prohibition of character evidence.(25) In some jurisdictions, prior rapes perpetrated in a manner similar to the charged offense are admitted under the "common scheme or plan" exception to corroborate the victim's testimony regarding non-consent. While in non-rape cases this exception usually permits the jury to hear about prior acts that share a common criminal plan or goal,(26) in the sexual assault context courts have broadened the definition of "scheme" to include different crimes committed with the same intent or purpose. The prior rape establishes the defendant's plan to ignore the victim's non-consent,(27) and, "[s]ince conceptually compulsion and consent are antonymous in effect, . . . evidence of a common plan or scheme to engage in compelled sexual intercourse would tend to negate a defense of consent."(28) However, inferring from past sexual violence a present plan to disregard nonconsent requires an intermediate inference that the defendant has the disposition to rape women. The jury must reason that: 1) the defendant raped before; 2) he has the disposition to have nonconsensual sex with women; 3) the victim is more likely testifying truthfully that he forced her to have sex; and 4) the defendant is guilty of the charged offense. While the propensity inference is intermediate, it raises the probative dangers that trial evidence will be overwhelmed by the prior act evidence, and the jury will punish the defendant for his inferred disposition to have nonconsensual sex.(29) This analysis contravenes Rule 404(b) by spuriously allowing the introduction of propensity evidence.(30)

   Other courts reach the same problematic result and admit corroboratory uncharged sexual assaults via the "intent"(31) or "absence of mistake"(32) exceptions of Rule 404(b). These courts conclude that prior acts are logically relevant to the victim's non-consent once the accused places his mens rea in dispute by asserting that intercourse was consensual. Some courts have carved out safe-harbors for propensity/disposition evidence in sex-crimes cases, thereby fashioning constitutionally suspect,(33) but more honest, rules to handle uncharged misconduct evidence. These so-called "lustful disposition" or "deviant sexual instinct" exceptions tolerate liberal admission of evidence of prior rapes to establish the criminal character of the defendant. Nevertheless, codification of Rule 404(b) on the state level and resulting skepticism about the rape recidivism assumptions underlying such state rules have recently impelled these courts to reconsider rules explicitly tolerating propensity evidence.(34)

   An alternative approach, which exhibits more fidelity to the words and policy of Rule 404(b), excludes evidence of prior rapes where intercourse is admitted and consent is the only issue. Under this approach, "[t]he fact that one woman was raped ... has no tendency to prove that another woman did not consent."(35) Notwithstanding this approach, "there is a strong tendency in prosecutions for sex offenses to admit evidence of the accused's sexual proclivities.... [These] decisions show that the general rule against the use of propensity evidence against an accused is not honored in sex offense prosecutions[.]"(36) Even before Rule 413 altered the evidentiary landscape, courts thus had discovered ways to admit propensity evidence in rape trials.

2. THE NEW FRONTIER: FEDERAL RULE 413

   Rule 413(37) will delight prosecutors and chagrin defendants, as those accused of rape will find their prior sexual assaults admissible for any purpose. Rule 413(a) declares that "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...