Huskers Jump on Congress's Fumble: Nebraska Rules of Evidence 413-15 Correct the Facial Deficiencies of Federal Rules of Evidence 413-15

• Publication year: 2022

45 Creighton L. Rev. 277. HUSKERS JUMP ON CONGRESS'S FUMBLE: NEBRASKA RULES OF EVIDENCE 413-15 CORRECT THE FACIAL DEFICIENCIES OF FEDERAL RULES OF EVIDENCE 413-15

HUSKERS JUMP ON CONGRESS'S FUMBLE: NEBRASKA RULES OF EVIDENCE 413-15 CORRECT THE FACIAL DEFICIENCIES OF FEDERAL RULES OF EVIDENCE 413-15

John Matson - '13

I. INTRODUCTION

On May 20, 2009, Nebraska Governor Dave Heineman signed into law three new Nebraska Rules of Evidence ("Nebraska Rules 413-15" or "Nebraska Rules.(fn1) Nebraska Rules 413-15 became operative on January 1, 2010.(fn2) Nebraska Rules 413-15 are patterned after, but are not identical to, Federal Rules of Evidence 413-15 ("Federal Rules 41315" or "Federal Rules.(fn3) Both the Federal and Nebraska Rules provide for an exception to the general evidentiary rule that prohibits the admission of evidence of an individual's character for the purpose of showing that, on a particular occasion, he or she acted in conformity therewith ("prior/past bad acts evidence" or "prior/past bad sexual acts evidence.(fn4) Both the Federal and Nebraska Rules are applicable only in cases dealing with sexual assault and child molestation.(fn5) The Nebraska Unicameral passed the Nebraska Rules because of concern that without them, sexual predators often have an easy task of impeaching the alleged victom's testimony; in other words, these cases are often reduced to a "he-said, she-said" type argument.(fn6) Additionally, Nebraska legislators adopted the Nebraska Rules because they were concerned with jurors' tendencies to disbelieve that sexual assaults, especially assaults against children, really occur.(fn7)

Federal Rules 413-15 have been widely criticized since their enactment.(fn8) Much of this criticism has focused on three main problems: (1) they allow past acts evidence to be considered upon a mere threshold showing that the prior act occurred, (2) they fail to mandate Federal Rule of Evidence 403 balancing ("Rule 403 balancing" or "403 balancing, and (3) they give no guidance regarding how Rule 403 balancing should be conducted in the context of the Federal Rules.(fn9)

This Note will first provide a summary and legislative history of Nebraska Rules 413-15.(fn10) Then, this Note will summarize Federal Rules 413-15 and examine those rules in the context of two recent United States Courts of Appeals decisions.(fn11) This note will then examine the similarities and differences between Federal Rules 413-15 and Nebraska Rules 413-15.(fn12) Next, this Note will argue that the mere threshold showing required by the Federal Rules before prior bad acts evidence is admissible is inadequate, and that the Nebraska Unicameral appropriately heightened that evidentiary hurdle.(fn13) This Note will also argue that the absence on the face of the Federal Rules of mandatory Rule 403 balancing is constitutionally problematic, and that Nebraska properly made Nebraska Rule of Evidence 403 balancing ("Rule 403 balancing" or "403 balancing mandatory on the face of the Nebraska Rules.(fn14) In addition, this Note will argue that the absence on the face of the Federal Rules of any guidance on how Rule 403 balancing was to take place is an inadequacy of those Rules, and that Nebraska correctly provided such guidance on the face of Nebraska Rules 413-15.(fn15) Finally, this Note will conclude that the Nebraska Rules properly addressed the various criticisms levied against the Federal Rules.(fn16)

II. NEBRASKA RULES OF EVIDENCE 413-15

A. Overview

A summary of Nebraska Rules of Evidence 413-15 ("Nebraska Rules 413-15" or "Nebraska Rules follows: section 27-413(fn17) of the Revised Statutes of Nebraska ("Nebraska Rule 413 defines the offense of sexual assault as it applies to Nebraska Rules of Evidence 414 and 415.(fn18)

Section 27-414(fn19) of the Revised Statutes of Nebraska ("Nebraska Rule 414 applies to criminal cases only and has four parts.(fn20) The first part notes that when the State prosecutes an individual for an alleged act or acts of sexual assault, evidence that the accused has previously committed a similar act or acts of sexual assault ("prior/past bad acts evidence" or "prior/past bad sexual acts evidence is admissible at trial if there is clear and convincing evidence that the accused actually committed the prior act or acts of sexual assault and if the evidence is otherwise permitted under the Nebraska Rules of Evidence.(fn21) if the evidence is admissible, then the jury may consider it for any relevant matter.(fn22)

The second part of Nebraska Rule 414 provides that if the State intends to offer prior bad sexual acts evidence at trial, then it must provide the accused with that evidence at least fifteen days prior to trial, or at a reasonable time thereafter as determined by the judge.(fn23) The third part of Nebraska Rule 414 provides that before a court admits evidence of prior bad sexual acts at trial, the court must hold a hearing regarding the evidence outside the jury's presence.(fn24) At the hearing, the Nebraska Rules of Evidence apply, and the court must conduct a Nebraska Rule of Evidence 403 balancing test ("Rule 403 balancing" or "403 balancing to determine whether the potential for unfair prejudice substantially outweighs the probative worth of the evidence.(fn25) The judge may consider any relevant factor while conducting the 403 balancing including (a) the probability that the prior act really occurred, (b) the intervening circumstances of the prior bad acts evidence and the closeness in time between the past and currently alleged offenses, and (c) the similarity between the offenses.(fn26) Finally, the fourth part of Nebraska Rule 414 provides that courts should not interpret Rule 414 as a limitation on the consideration or admission of evidence under any other provision of the Nebraska Rules of Evidence.(fn27)

Section 27-415(fn28) of the Revised Statutes of Nebraska ("Nebraska Rule 415 applies to civil cases only and tracks the language, structure, and substance of section 27-414 of the Revised Statutes of Nebraska.(fn29)

B. Legislative History

On January 8, 2009, State Senator Michael Flood introduced Legislative Bill 39 ("LB39 to the Nebraska Unicameral for consideration.(fn30) The Nebraska Unicameral then referred LB39 to the Judiciary Committee for further consideration on January 12, 2009.(fn31) The Judiciary Committee held a public hearing on LB39 on March 19, 2009, at the State Capital in Lincoln, Nebraska.(fn32) Senator Flood's legal counsel, Matt Boever, began discussion of LB39 by asking why Nebraska should follow other jurisdictions by legalizing the admission of evidence of prior bad acts in sexual offense cases.(fn33) Boever stated that sexual offenses are frequently occurring, aggressive, and assaultive violations of the security, well-being, and privacy of the victims, and that such offenses result in long-lasting and serious harm to the affected individual.(fn34) He continued, stating that sexual offenses are often not reported or are reported long after the offense took place, and that typically there are no witnesses to these offenses except for the accused and the victim.(fn35) For these reasons, there is often no evidence of the assault, except for the conflicting testimony of the victim and the accused.(fn36) Additionally, Boever pointed out that non-victims are often hesitant to believe that a sexual assault took place.(fn37)

After Boever's comments, the Judiciary Committee heard testimony from proponents of LB39.(fn38) The first proponent to testify was the Chief Deputy of the Douglas County Attorney's Office, Brenda Beadle.(fn39) Beadle stated that LB39 essentially mirrored Federal Rules 413-15, which allow the use of prior bad acts evidence against a defendant in cases dealing with sexual assault and child molestation.(fn40) As a point of clarification, State Senator Brad Ashford asked Beadle to specify what type of evidence LB39 would allow at trial.(fn41) in response, Beadle stated that, for example, if a defendant was on trial for allegedly sexually assaulting a six-year-old child and the plaintiff discovered that this particular defendant had previously been charged with sexually assaulting another six-year-old child, then testimony regarding that previous charge would be admissible under LB39.(fn42)

Subsequently, State Senator Brenda Council noted that LB39 appeared to provide an exception to Nebraska Rule of Evidence Rule 404, which prohibits a plaintiff from using prior bad acts evidence against a defendant to show the defendant acted in conformity with his bad character.(fn43) Senator Council voiced concern that LB39 did not appear to provide defendants with the same safeguards typically afforded a defendant when a plaintiff seeks to admit bad acts evidence at trial.(fn44) Specifically, Senator Council was concerned that as written, LB39 did not ensure that the prior bad acts evidence was reliable and trustworthy.(fn45) Senator Council also noted that LB39 appeared to change the burden of proof that a plaintiff had to meet before introducing prior bad acts evidence from a clear and convincing standard to some lower standard.(fn46)

Following Senator Council's remarks, another proponent of LB39, professor R. Collin Mangrum, a tenured faculty member at Creighton University School of Law in Omaha, Nebraska, testified.(fn47) Professor Mangrum echoed Beadle's remark that LB39 tracked the language, structure, and substance of Federal...