Balancing Interests Under Washington's Statute Governing the Admissibility of Extraneous Sex-offense Evidence

• Publication year: 2021

BALANCING INTERESTS UNDER WASHINGTON'S STATUTE GOVERNING THE ADMISSIBILITY OF EXTRANEOUS SEX-OFFENSE EVIDENCE

Blythe Chandler

Abstract: American courts traditionally exclude evidence that a defendant has committed crimes other than the crime with which the defendant is charged. This rule, with exceptions, is codified as Federal Rule of Evidence 404(b) and Washington Evidence Rule 404(b). However, courts and legislatures have increasingly adopted the view that evidence of other sex offenses should be admissible in sex-offense prosecutions. The Washington State Legislature recently adopted a statute, RCW 10.58.090, which governs the admissibility of evidence of other sex offenses. This Comment argues that Washington courts should use precedent applying Rule 404(b) as a guide in applying robust Rule 403 balancing under the new statute. This interpretation of the statute is consistent with its legislative history, preserves the traditional gate-keeping role of trial courts in evidence-admissibility determinations, and avoids a potential separation-of-powers question about which branch of government has ultimate authority over evidentiary rules in Washington.

INTRODUCTION

Seventy-nine-year-old Roger Scherner was tried and convicted in King County Superior Court for molesting a relative when she was seven years old. (fn1) Trial testimony revealed that Scherner had also molested other young girls, all of them either family members or daughters of family friends, over a period of several decades.(fn2) In addition to the victim's testimony, jurors heard four previous victims recount the abuse they had suffered as young girls.(fn3) Their testimony was admitted under a new Washington evidence statute, section 10.58.090 of the Revised Code of Washington (RCW), which makes it easier for prosecutors to submit evidence of other sex offenses in sex-offense cases.(fn4)

When a defendant is charged with a sex offense, the new law allows evidence of other sex offenses to be admitted, notwithstanding the traditional bar on extraneous offense evidence. Defense attorneys who observed Schemer's trial said they expect the law will soon face challenges in Washington appellate courts.(fn5) These challenges will likely question not only the applicability of the statute in cases where the evidence of other sex offenses is not as factually similar as it was in State v. Scherner, but also the Washington State Legislature's authority to enact rules of evidence that conflict with judicial rules.(fn6)

This Comment argues that Washington courts should interpret the new statute in a way that preserves the trial court's traditional gate-keeping role in evidence admissibility determinations. The statute requires trial courts to determine whether the probative value of evidence of other sex offenses is outweighed by the danger of unfair prejudice under Rule 403.(fn7) Washington courts should use the Washington State Supreme Court's well-developed body of case law governing the admission of evidence of other sex offenses under Rule 404(b) to guide Rule 403 balancing under the new statute. This interpretation respects the legislature's judgment that evidence of other sex offenses is different than other types of propensity evidence. It is also consistent with the text and legislative history of the statute, and avoids difficult separation-of-powers questions about the authority of the legislature and judiciary to promulgate evidentiary rules.

Part I of this Comment reviews the general bar on evidence of other offenses in American law and exceptions specific to sex-offense cases. Part II describes Federal Rules of Evidence 413 and 414, which deal with sex-offense evidence in the federal courts, and analyzes the cases construing these rules. Part II also discusses similar evidentiary provisions enacted by states. Part III summarizes Washington law that addresses the respective powers of the Legislature and Judiciary to promulgate evidence rules. Part IV describes RCW 10.58.090 and summarizes its legislative history, while Part V describes the approach Washington courts have taken with regards to evidence of other sex offenses under Rule 404(b). Finally, Part VI argues that Washington courts should use principles from their Rule 404(b) cases to guide their analysis under the new law, which ensures meaningful Rule 403 balancing and avoids direct conflict with a court-promulgated rule.

I. COURTS HAVE MADE EXCEPTIONS TO THE TRADITIONAL PROHIBITION ON EVIDENCE OF OTHER BAD ACTS IN SEX-OFFENSE CASES

The prohibition on evidence of other offenses committed by a criminal defendant is deeply rooted in Anglo-American jurisprudence. (fn8) This rule has created a presumption that such evidence is inadmissible despite the logical relevance of such evidence.(fn9) The United States Supreme Court applied this rule in its 1892 decision in Boyd v. United States.(fn10) The Court reversed the defendants' convictions because the trial court admitted evidence that the defendants committed three robberies before the murder for which they were charged.(fn11) The Court said, "However depraved in character, and however full of crime their past lives may have been, the defendants were entitled to be tried upon competent evidence, and only for the offence charged."(fn12)

Courts have excluded evidence of a defendant's other offenses because they have long recognized that such evidence threatens the accuracy of trials. Jurors may give too much weight to such evidence and convict a defendant because they are convinced the defendant has a criminal character. Alternatively, jurors may convict a defendant as punishment for prior conduct, even if they are not convinced beyond a reasonable doubt that the defendant committed the crime charged.(fn13) As Justice Jackson wrote for the U.S. Supreme Court in Michelson v. United States:The inquiry [into the defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors] is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. (fn14)

Federal Rule of Evidence 404(b) codifies the ban on evidence of other wrongdoing, providing in part: "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."(fn15) Rule 404(b) includes several exceptions to that general rule, providing that such evidence "may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."(fn16)

Accusations of sexual misconduct are particularly likely to inspire strong negative reactions in jurors. (fn17) Despite the prejudicial nature of evidence of other sex offenses, courts have not erected absolute bars to such evidence in sex-offense prosecutions. For example, state courts developed common-law "lustful disposition" exceptions for evidence of sexual misconduct with the same victim.(fn18) The Washington State Supreme Court adopted such an exception in 1903 in State v. Wood(fn19) Wood was an incest case; the trial judge had admitted testimony by the victim, the defendant's daughter, about other acts of incest that occurred before the act for which he was charged.(fn20) The state supreme court said, "[the] general rule undoubtedly is that evidence of a distinct and different offense from that for which the defendant is on trial is inadmissible."(fn21) However, the court held that this rule did not apply in "prosecutions for adultery, fornication, rape upon one under the age of consent, and incest,"(fn22) where "acts of sexual intercourse occurring between the parties prior to the act charged in the information may be proved. "(fn23)

Washington courts have also broadly construed the common-scheme or plan exception to Washington Evidence Rule 404(b) to allow evidence of other sex offenses in sex-offense prosecutions. The common-scheme or plan exception traditionally allowed evidence of offenses that were constituent parts of a larger criminal plan.(fn24) For example, the theft of a getaway car would be admissible in a prosecution for a subsequent bank robbery. In State v. Lough, (fn25) the Washington State Supreme Court stated that this exception also applies when the defendant "devises a plan and uses it to perpetrate separate but very similar crimes."(fn26) The Lough court, approving the trial court's admission of evidence that Lough had committed similar assaults before, affirmed his rape conviction.(fn27) In recent years, Congress and a minority of state legislatures have codified rules permitting extraneous offense evidence in sex-offense cases.

II. IN 1994, CONGRESS CREATED NEW FEDERAL EVIDENCE RULES SPECIFIC TO SEX-OFFENSE EVIDENCE AND SOME STATES HAVE ADOPTED SIMILAR RULES

In 1994, the U. S. Congress enacted new Federal Rules of Evidence that deal exclusively with sex-offense evidence-over the objection of the federal judiciary.(fn28) Rule 413 applies to evidence of other acts of sexual assault in prosecutions for sexual assault,(fn29) and Rule 414 governs evidence of other acts of child molestation in prosecutions for child molestation. (fn30) Rules 413 and 414 provide that "evidence of the...