Effect of New Rules of Evidence 413 and 414.  Evidence of Similar Acts of Sexual Assault and Child Molestation.

Criticism of 404(b).

TC articulate non-character purpose

Judge’s discretion under Rule 403 to exclude

Government rebuttal case

Limiting instruction.

Congressional Response

(a)  In a criminal case in which the defendant is accused of an offense of [sexual assault][child molestation], evidence of the defendant’s commission of another offense or offenses of [sexual assault][child molestation] is admissible and may be considered for its bearing on any matter to which it is relevant.
(b)  In a case in which the government intends to offer evidence under this rule, the attorney for the government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least five days before the scheduled date of trial or at such later time as the court may allow for good cause.
(c)  This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

Questions.

Does Rule 403 Apply?  YES.  Frank v. County of Hudson, 924 F.Supp. 620 (D.N.J. 1996) (evidence proffered under the new rules must still be legally relevant under FRE 403); see also United States v. Guardia, 955 F.Supp 115 (D.N.M. 1997)(413 evidence excluded as unduly prejudicial); United States v. Sumner, 119 F.3d 658 (8th Cir. 1997) (admission of similar crimes evidence [under 413 or 414] is subject to Rule 403).

United States v. Castillo, 140 F.3d 874 (10th Cir. 1998).  10th Circuit held that Federal Rule 414 did not violate the defendant's Due Process rights.  Federal Rule 403 still applies and adequately protected the defendant's rights. 

United States v. Green, 51 M.J. 835 (Army Ct. Crim. App. 1999)  Reversible error for the trial judge to admit evidence under MRE 413 without conducting a 403 balancing.

United States v. Charley, 176 F.3d 1265, (10th Cir. 1999)  Accused convicted of 7 counts of child abuse largely on the  testimony of the two child victims.  The government also introduced evidence under FRE 414 of a prior conviction that the accused had for child abuse.  The court held that the judge conducted an adequate case specific 403 balancing determination by simply referring to the legislative rationale for the rule.

United States v. Wright, 53 M.J. 476 (2000).  The accused pleaded guilty to indecent assault of P. in Oct. 96.  He pleaded not guilty but was convicted of indecent assault of D. in April of 96, and housebreaking of P’s room in Oct. 96.  The government admitted the offense that he pleaded guilty to under MRE 413 to prove propensity to commit indecent assault against D.  The defense claimed that 413 was unconstitutional.  CAAF rejected this argument, following the rationale of the Federal Circuit Courts on both the due process and equal protection grounds.

United States v. Henley, 53 M.J. 488 (2000).  Accused convicted of committing oral sodomy on his natural son and daughter.  At trial, the government introduced incidents outside the statute of limitations under both 414 and 404(b).  The trial court admitted it for both purposes.  The Air Force Court admitted it under 404(b) and said that they did not need to address the 414 issue.  The CAAF agreed with the Air Force Court’s approach and affirmed.  The CAAF did go on to say, in light of their opinion in Wright, that 414 is constitutional and this evidence would have been admissible under that rule as well.

Relaxed 403.  In United States v. Dewrell, 52 M.J. 601 (A.F. Ct. Crim. App. 1999), the Air force court hld that in order to give MRE 414 any efficacy, the Military Judge must apply a broad manner that favors admission.  See also, United States v. McDonald, 53 M.J. 593 (N.M. Ct. Crim. App. 2000).  

Spill-Over.  United States v. Myers, 51 M.J. 570 (N.M. Ct. Crim. App. 1999).  Accused charged with raping two victims within about 5 months of each other.  Military judge denied defense request for severance and ultimately denied defense request for spill-over instruction, citing MRE 413.  Navy/Marine Court held failure to give instruction was prejudicial error.  Court noted that 413 evidence is still subjected to 403 balancing and no such protection exists when separate incidents are combined in one trial.

Practical Effect - Right Without a Remedy?  Apparently.

United States v. Meacham, 115F.3d 1488 (10th Cir. 1997) (30 year old offenses ok.  no time limit on past offenses - rules anticipate liberal admission).

United States v. LeCompte, 131 F.3d 767 (8th Cir. 1997) (in light of strong legislative judgement that prior sexual offenses are relevant and not unduly prejudicial, evidence of accused’s commission of uncharged acts of sexual abuse against first wife’s niece admissible under Rule 414 in retrial for abuse of second wife’s niece, even though court had previously held same evidence inadmissible under Rule 404(b) as unduly prejudicial).

Can/Should the TC Argue Propensity?

United States v. Larson, 112 F.3d 600 (2d Cir. 1997) (analyzing prior acts evidence occurring 20 years before trial under both 404(b) and 414, court held that testimony, offered for purposes other than to show criminal propensity, was within scope of both Rules and probative of intent to engage in criminal sexual conduct with minor).  See also, United States v. Hughes 48 M.J. 700 (A.F. Ct. Crim. App. 1998), United States v. Wright, 48 M.J. 896 (A.F. Ct. Crim. App. 1998), United States v. Bailey, 52 M.J. 786 (A.F. Ct. Crim. App. 1999).