Prior sexual misconduct evidence in state courts: constitutional and common law challenges.

• Author: Smith, Michael L.

ABSTRACT

Prosecuting sex crimes is a sensitive, challenging process, and many who commit these crimes end up going unpunished. While a defendant may have a history of prior sexual misconduct, the rules of evidence in most states and at the federal level generally prohibit the introduction of prior misconduct to show a defendant's propensity to commit a present crime. In response, the federal government and numerous state legislatures have adopted rules of evidence that permit the introduction of prior sexual misconduct in cases where a defendant is charged with a sexual crime.

While commentators have written in great detail about federal rules regarding sexual misconduct propensity evidence, comparatively little attention has been paid to analogous rules at the state level. And while much of the commentary on rules of evidence permitting the introduction of prior sexual misconduct focuses on whether these rules are good or bad policy, questions of whether the rules violate due process rights or separation-of-powers requirements often fall by the wayside.

This article fills these gaps in the literature. In this article, I offer the first systematic review of challenges to state rules of evidence that permit the introduction of evidence of a defendant's prior sexual misconduct. These challenges include claims that these rules violate due process, that they violate constitutionally-mandated separation of powers, and that they contradict the common law. This article examines both the successful and unsuccessful challenges to state rules, evaluates the merits of the arguments, and emphasizes procedures and considerations that states must address if they seek to change their rules to permit evidence of prior sexual misconduct.

INTRODUCTION I. THE LEGAL LANDSCAPE A. The General Rule Against Propensity Evidence B. Exceptions to the General Rule: Prior Sexual Misconduct Evidence in Sex-Crime Cases II. DUE PROCESS CHALLENGES TO RULES PERMITTING PRIOR SEXUAL MISCONDUCT EVIDENCE. A. Successful Due Process Challenges: Iowa and Missouri 1. Iowa's Section 701.11 and State v. Cox 2. Missouri's Section 566.025 and State v. Ellison B. An Unsuccessful Due Process Challenge: People v. Falsetta C. The Significance and Complexities of the Historical Perspective D. Due Process and the "Lustful Disposition " Exception.. E. The Significance of Rules Prohibiting Unduly Prejudicial Evidence. F. Reciprocity and Rape Shield Laws. III. SEPARATION-OF-POWERS CHALLENGES TO RULES PERMITTING PRIOR SEXUAL MISCONDUCT EVIDENCE A. Violating the Separation of Powers: Washington and State v. Gresham B. Separation of Powers and Shifts in the Common Law: Indiana and Brim v. State. C. Lessons From Gresham D. Are Prior Sexual Misconduct Rules Substantive or Procedural? An Alternate Take in Michigan's People v. Watkins. IV. COMMON LAW CHALLENGES TO RULES PERMITTING PRIOR SEXUAL MISCONDUCT EVIDENCE. A. Common Law Support for Propensity Exceptions: Connecticut and State v. DeJesus B. The Importance of Common Law: Lessons from Connecticut CONCLUSION. INTRODUCTION

Prosecuting sex crimes is a sensitive and challenging process, and most people who perpetrate these crimes go unpunished. (1) In the 1990s, concern over the difficulty of prosecuting sexual assault and rape cases led Congress to reform the Federal Rules of Evidence in order to allow the introduction of evidence that defendants charged with sexual assault and child molestation had been accused or convicted of similar crimes in the past. (2) While evidence of prior misconduct is generally prohibited, Federal Rules of Evidence 413 and 414 provide an exception to this general rule in cases where a defendant is charged with sexual assault or child molestation. When a defendant is charged with sexual assault or child molestation, Rules 413 and 414 permit evidence that the defendant committed a previous sexual assault or molestation offense. (3) The defendant need not have been convicted of the prior offense.

Federal Rules of Evidence 413 and 414 prompted a great deal of critical scholarship upon their adoption in 1994. While the volume of criticism has since tapered, the Rules continue to attract attention, and a steady stream of legal scholarship has both criticized and defended the rules. But while Rules 413 and 414 have attracted a great deal of scholarly attention, very little attention has been paid to similar rules of evidence at the state level. A focus on state rules of evidence is warranted, since most prpsecutions for sex crimes take place at the state level. (4)

Before the 1994 enactment of Federal Rules of Evidence 413 and 414, Indiana was the only state with a statute permitting the admission of evidence of prior sexual misconduct. (5) In the wake of the 1994 enactment of Rules 413 and 414, several states have passed legislation permitting the introduction of prior sexual assault or child molestation. States that have passed legislation permitting evidence of prior sexual assault or child molestation are Alaska, (6) Arizona, (7) California, (8) Connecticut, (9) Florida, (10) Georgia, (11) Iowa, (12) Kansas, (13) Louisiana, (14) Michigan, (15) Missouri, (16) Nebraska, (17) Oklahoma, (18) Tennessee, (19) Utah, (20) and Washington. (21) Several states that passed legislation permitting evidence of prior sex crimes already had common law rules that permitted the admission of prior sexual misconduct to show the defendant's propensity to commit sexual offenses. (22) Other states that have not passed legislation permitting evidence of prior sex crimes have common law rules permitting the admission of this evidence or at least have case law indicating that courts are willing to be flexible when considering whether to admit that evidence. (23) Colorado passed a law in 1996 relating to evidence of prior sexual misconduct in cases where a defendant is charged with a sexual offense. (24) While that law acknowledges that evidence of prior sexual misconduct cannot be introduced to prove a defendant's propensity to commit sexual crimes, the statute emphasizes that evidence of sexual misconduct will often be highly probative and can be introduced for "any purpose other than propensity." (25)

In this article, I present the first systematic review of challenges against state rules that permit the introduction of evidence of prior sexual misconduct in cases where the defendant is charged with a sex crime. This article pays particular attention to challenges that have succeeded and whether similar challenges to other states' rules would be meritorious. Several states with rules permitting the admission of evidence of prior sexual misconduct have yet to consider these challenges to their propensity exceptions. And states considering adopting similar rules should consider the potential for legal challenges or procedural obstacles when deciding whether and how to enact these rules.

I would like to emphasize that I am not seeking to approach propensity restrictions and exceptions from a policy perspective. Plenty has been written on whether character evidence restrictions are good restrictions to have and on whether propensity exceptions for prior sex crimes are desirable, and I do not want to retread ground that has already been covered. (26) This article's focus is on due process, common law, and other procedural challenges and obstacles to state rules of evidence, since this subject has been largely neglected by legal commentators.

Section I lays out the legal landscape. I describe the general rule against propensity evidence and some of its nuances. I then describe the federal exceptions to this rule: Rules 413 and 414. (27) In Section II, I discuss due process challenges to Rules 413 and 414, and, more importantly, due process challenges to state rules permitting the admission of evidence of prior sexual misconduct. The Iowa Supreme Court addressed whether a rule permitting evidence of prior sexual crimes violated due process in State v. Cox, (28) and the Missouri Supreme Court addressed this question in State v. Ellison. (29) I discuss these cases and how the courts reached their conclusions and then explore the merits of due process challenges to rules that permit the introduction of prior sexual misconduct. I pay particularly close to the historical background of these rules and the history of the prohibition on character evidence in general. Section III introduces another potential basis for challenges to state rules permitting the admission of evidence of prior sexual misconduct that arise from separation-of-powers concerns. I explore how separation-of-powers challenges have proceeded in Washington, Indiana, and Michigan, and discuss how similar challenges may arise in other states. In Section IV, I explore the potential for challenges to rules permitting evidence of prior sexual misconduct on the ground that the rules are contrary to well-established common law. This article concludes that there are many ways that propensity exceptions for prior sexual misconduct may be challenged. States must be prepared to overcome potential challenges and obstacles if they seek to enact this type of propensity exception, and this article shows what obstacles exist and how states may overcome them.

1. THE LEGAL LANDSCAPE

   Before addressing challenges to rules that permit evidence of prior sexual misconduct in cases where defendants are charged with sex crimes, a brief background on the basics of character evidence is helpful to set the stage for the issues discussed in the rest of this paper. In this Section, I describe the general rule against propensity evidence that bars the use of prior acts of a defendant to prove that the defendant acted in a similar manner in the present case. I then describe the development of the exception to this rule in cases where a defendant is charged with a sex crime.

   1. The General Rule Against Propensity Evidence

      Rules of evidence, at both the federal and state levels...