The Twenty-Second Annual Kenneth J. Hodson Lecture: Uncharged Misconduct Evidence in Sex Crime Cases: Reassessing the Rule of Exclusion

• Author: Roger C. Park, David P. Bryden
• Pages: 03

1. Introduction

   The restrictions on use of uncharged misconduct against the

   accused raise vexing problems In sex offense cases, ones that Con-@e= is now in the process of addressing. Public awareness of the pmblems was heightened by the televised tnal of William Kennedy Smith. He was accused of raping a woman whom he met in a bar in Palm Beach. She had gone with him back to the vacation house at which he was staying. and the two went for 8 walk along the beach. She testified that he took off his clothes, tackled her when she tried to leave, and raped her. He admitted having intercourse but claimed that she consented, and that she started to behave irrationally when he called her by the wrong name. At a pretrial hearing, the prosecution offered testimony by three other women that they had beensexually assaulted by Smith The trial judge excluded the evidence

   *This &rtlcle is an edlred trmxfipr of a lecture dehvered by Roger C Park to rnemkm of the Staff and Faculty, mer dmtulguirhed guests. and offieem attending the 41sf Graduate COUM and the 130th Judge Advocate Officer Basic Courre, at The Judge Advocate Genernl's Sehml, CharloflerwUe, Yrprua, an March 25, 1883. The Kenneth J. Hodan Chair of Criminsl Law WM estabhahed st The Judge Advocate DeneWaEchoolonJune24, 1871 Thech~w~namedafterM~orDeneralHodaon. who erved as The Judge Advocate Dene&, Umfed States Amy, from 1861 to 1871 General Hodson relred in 1871, but mmediately WM reeded to active duty to serveas the Chlef Judge of the Army Court of llllfary Revlew He served yl that wasllion unto March 1974 General Hodson served over fhuty years on mLwe duty, and was B memkr of the original Staff and Faculty of The Judge Advoeate GenerBI.8 Sehml lrChadofteavdie, Vlr@nla Wen the Judge Advocate General'& Carps WM activated Ma rewent yl lBS6, General Hodson WM selected er the Honorary Colonel of the Rewe"l

   ** Fredrhon & Byron Pmfemr of Law,

   Unlveraby of Mmnesob***Gray. Plant. Moots, Moafy 61 Bennett Professar of Law, UmveRily of M1mealrl.

   under Florida law, and Smith ultimately was acquitted.2 Although there is a division of authority on the issue, exclusion of evidence about Smith's alleged prior crimes was consistent with Florida law and with the law of many, but not all, ~urisdictions.~

   The same issue often arises in "stranger rape" cases, where the defendant claims that he was misidentified by the victim and the prosecution seeks to introduce evidence that he committed other rapes Here too, the uncharged misconduct evidence is sometimes excluded as contrary to the character evidence rule,4 though some courts have been more ready to admit the evidence than they we in consent defense CBSBS.~

   ZSea Michael Hedges, 0th Wonen Point Smzlh a& Vlokl, Not ?bo h h l ' ,

   WaH RUES, Dec 7, 1891. st A4 (degcdbmgexeluslonof evldence). PaulRiehter Jury AcguillSmllh~JRoPealKennedyEslal.

   L A TlllEs,Dee. 12. 1981, at AI (describing

   aequllfnl)

   JSes Lovely v United Staler. 169 F2d 386, 380 (4th Cm 1948) (defendant accused of rape of BCqUBmtanCe after drwln% her fo remote pan of federal base. rape 15 days earher on same bsre excluded. court states that fact that m e woman was raped had no tendency to prove that mother woman did not consent). People Y

   h U ,

   678 P.Zd 1 (Cal. 1884) (see %?&a tea accampanying note 41) (error, though harmless, to admit evidence of two pnor rapes by defendant charged with acquain-tance rape), Reichard v Stale 510 N E 26 163. 166 (lnd 1887) (defendant aecuaed of kmfe-pomf rape af woman wnh whom he had a dating relationship, held revenible error fa receive evidence of 'pmr alleged 'apes perpetrated by him upon wnouslndlvidus.11' , court remarks that 'the trial court incorreerly cUeganied rape of anadult woman sr depraved sexual eanduef' 1, Brown Y State. 458 U E 26 376, 378-79 (Ind 1984) (defendant mer VIC~M m g ~ ! sIa0on. drove her to cornfield where he threatened, raped. and beat vktun. two other viefuns testified to rapes by defendant m secluded are= after geftmg 01 &wing hun nder m 7,ehlele. held receiving evidence was reversible error, CwK lndiearer that evidence might be admilsihle were Idennr) in ~ssue, but holds that ~t 1s not admissible m case at bar because defense 13 consent court dm diitlnguishei depraved %?mal instinet c-s mwlvmg chlidren), State v Sdtarelb 655 P2d 687 700-01 (Wash 1982) (defendant. charged with rape of acquamtance. ralied emsent defense. held, Ievenible emor ro reeeire evidence of defendant Q prmr attempted rape of B dlfferenl woman) Butsee State % Clocker 409 N U'2d 840 (MIM 1987) (not emoi to sdmf evidence of p n ~ r sex cruneb awnrr children m case sheie defendant raise8 consent defense m response to accu8atlon of rape of adult victim, evidence shows B ''pattern'' of oppoAunl~f1~as38ulfs on vuher-

   able "icnms)

   'See. 0 0 . Vaughn Y State 604 Sa 26 1272. 1273 (Fla Dlar Cf App 1982) (defendant accused of rape of amy-year-old >IC~M whom he had aaakened LO her bedroom, e%ldence of prior rape of prmtltufe m alley excluded), People Y Sanra. 508 21 Y S.2d 311, 314-15 (N Y App DIU 1988) (m PToreCutmn for rape murder m Yew York State. evidence that accused had raped three Y ~ M I m Flonda madmmlble)Whne Y Commonwealth 388 S E 26 645. 648 (Va Ct App 1980) (defendant accused of raplng woman ~n ramen's res room: evidence that three hours earher defendant had approached another woman, kmfe m hand. m another women's reat room Inadmissible)

   A third type of case involves child sex abuse. Again, there is no defense of consent. The defendant may or may not have been an acquaintance of the alleged victim The defense may claim that nosexual abuse occurred, or that it was committed by another person. The prosecution offen evidence that on other occasions the accused molested the Pame child or other children. Courts often admit this type of evidence, though there are still a number of courts that exclude it.6

   Courts excluding evidence in these three categories have rejected it under the traditional rule-now embodied in Rule 404 of the Federal Auks ojEvidence-that prohibits using conduct to show character in order to show action in conformity with character. We will start with an examination of this body of law, and then turn to an assessment of possible reforms.

   Land v State, 465 S 26 851. 854-65 (Ala. Cnm App. 18.44) (pnor rape and charged ram sufficiently umilar fa meet adrnisibihy standard for eitsbll8hiilPldenfitv where b i h incidents &curred in the *me neighborhood. attacks were iateit night. museu-1ar aftxker entered homes by breaking wmdaw. ware a mask. brandished 8. weapon, and rmeiied bad), cmI. denied. 465 So 2d 856 (Ala 10841. Humphrey v State. 304 S26 617, 618. 622 (Ala Cnm App 1874) (smdmty Llnlung two rapes and m e attempted rape ww that the attacker walked unarmed info the viefim's bedrooms to attack them, held. eridence admissible toprove identity): Colemsn~ State, 621 P2d 868,875 (Alaska 1OSO) (smilarities in race and age of Vlcflms, along wlth slmilar dtua of attack and manner of mbdurng mcrm from behind sufficiently Wle pnor rape to d o w evidence of that erne to prove identity), cmt denied, 454 US 1000 (LQSII, JeMm Y State. 356 S E Zd 526, 526 (Ga Ct App 1887) (evidence of defendant's pnar sexual a~~aulfadmissible to esfabllsh identity for artempred rape charge where there is no dlroule that defendant committed nor BISBUU and both ~ n m wsult and

   charged crime involved sexual w8aauif upan woman who had no prmr personal eon-neefmn with defendant and who fruirrated as~ulfby sereammg)). State \ Hanks. 684 P.Zd 407 fKan 18851 fdefendant accused of ramM metm while weannl a skl maak held, evidence of three other rapes m whch iefgndant had used threafi. violence and had wielded a knife, though not weamg B mark. auffLelenfly simllar to be admitted far the p u m s of eif8bllshmg the IspiL'i ldentlty) CY State v Magon, 827 Pzd 148 (Kan 18821 (defendant accused of attempted rape of S8-year-old vmm: held. evidence of prior murder of 76-year-old vxtm, where defendam arked to u8e the Phonefo~nenrryandstrangledvieWnwithsack, wasruffieienliyslmllsrtochargedcnme m which person galned entry to hame by agklng to use the phone and prepared stacking m hi3 hands before neeinn VIC~M 1 house TO be admisrlbie To eifabhih identiti1

   Waser admitting the evidence include State Y MUer, 632 P2d 652. 564-56(.4nr. 1881) (evidence of pnor moieSfatmn of another child v~ctmwag admissible to prove identity where victm m charged cnme was unable to identify defendant, where both mcidenis sere rvnilar m that the" occurred at the QBme tme af day man

   old, evidence of other aexual eontact between defendant and %lctlm when parents of

   %IC~M left the houseadmiasibletoshowplan orcourseofcnmlnaiactiuay)

   C m s excluding the evidence lnclude Government of Vlrmn Islands J Pinney

   old, evidence if other aexual eontact between d&dant and %lctlm Wien parents of

   %IC~M left the houseadmiasibletoshowplan orcourseofcnmlnaiactiuay)

   C m s excluding the evidence lnclude Government of Vlrmn Islands J Pinney

   I1 Exsting Law

   1. Uncharged Misconduct Offwed to Show Something O t k Than Charm&: Rule 4W@J Evidence

   This rule against character evidence does not prohibit all use of other crimes or wrongs (uncharged misconduct) to prove that the defendant committed the crime charged. The rule only prohibits a certain type of reasoning about uncharged misconduct-reasonmg that involves inferring bad character from bad acts, and then infer. ring guilt of the crime charged from the bad character. Evidence of uncharged misconduct is admissible to show guilt if an inference about guilt can be made without relying upon character reasoning.

   Rule 404(b) ~ v e s examples of purposes for which evidence may

   be received without running afoul of the rule against character rea. soning. It IS a familiar list, for which one acronym is KIPPOMLA,7 permitting reception of the evidence for purposes such ae showing knowledge, identity, plan, preparation, opportunity, motive, intent, or absence of mistake or...