CRIMINAL LAW: THEORY & PRACTICE

01:202:309

RUTGERS UNIVERSITY

SCHOOL OF ARTS AND SCIENCES

November 2011

FEDERAL RULE OF EVIDENCE 413:

Propensity, Preeminence, and Prejudice

Joseph Amditis

PROFESSOR LENNOX HINDS

CRIMINAL LAW: THEORY & PRACTICE

01:202:309

Propensity, Preeminence, and Prejudice

FEDERAL RULE OF EVIDENCE 413:

Joseph Amditis

TABLE OF CONTENTS
I. Introduction............................................................................................................1 II. Federal Rules of Evidence 403, 404(b), and 413....................................2 a. General Overview.....................................................................................2 b. Proposal and Passage.............................................................................3 III. Opposition................................................................................................................5 a. Prejudicial Impact....................................................................................5 b. Due Process.................................................................................................7 IV. Rape............................................................................................................................9 a. What is Rape?.............................................................................................9 b. Why is Rape Different?........................................................................10 c. Who Rapes?..............................................................................................11 V. The Powers That Be..........................................................................................16 a. The Rules Enabling Act.......................................................................16 b. A Violation of Procedure and Precedent.....................................18 VI. Conclusion.............................................................................................................20

PROFESSOR LENNOX HINDS

DECEMBER 2011

FEDERAL RULE OF EVIDENCE 413

I. Introduction
Few things shock the conscience as deeply as the images of a helpless victim who is forced to succumb to the desires of a relentless sexual aggressor. The immediate response of many individuals would be to lash out and punish the aforementioned assailant for such a vile and despicable act, and garner retribution for the victim. After all, what kind of horrible, immoral, and soulless degenerate could possibly bring himself to forsake all forms of compassion and empathy, allowing him to commit such an atrocity upon a fellow human being? While the sexual misconduct of a rapist is never to be condoned or accepted, it is important to remember, before condemning the alleged offender to suffer an eternal fate of fire and brimstone, that although many would be hasty to hand down such judgment, it is not until that judgment has been tried and affirmed in a court of law that one can begin to distribute the appropriate punishment. To skip this crucial and fundamental step in our judicial process is to run the risk of not only failing to punish those truly responsible for such abhorrent crimes as rape, but to further exacerbate the issue by condemning an otherwise innocent man to suffer in the villains place. Does this proverbial pillar of presumed innocence rooted in our justice system weigh in on matters concerning repeated accusations of such atrocities by the same individual? Are we to simply wipe the slate clean and allow those who have raped in the past to receive the same judicial treatment as those who appear before the court for the first time? The answer to these pragmatic questions is a resounding yes.1
1

See People v. Zachowitz, 254 N.Y. 192, 172 N.E. 466 (1930) (Cardozo answers these questions when he says In a very real sense a defendant starts his life afresh when he stands before a jury, a prisoner at the bar...).

PROPENSITY, PREEMINENCE, AND PREJUDICE

II. Federal Rules of Evidence 403, 404(b), and 413

a. General Overview It is natural for one to make the assumption that in a court of law no piece of relevant evidence should go without receiving careful consideration and attention from both the presiding magistrate and the collection of jurors in charge of deciding the outcome of the case at hand. Upon further analysis, one will find that there are indeed times when relevant pieces of evidence may be cast aside, for fear that its judgmentally charged impact might outweigh its overall probative value.2 This is not to say that the relevancy of the evidence in question is nullified, but within the delicate sphere of a jury trial the weight of its emotional influence may deny the defendant an unbiased opportunity to contest the alleged charges.3 Evidence of prior acts such as ones character, and therefore ones tendency to commit additional similar crimes based on those prior acts, is also inadmissible in most cases.4 When a man is brought before a court of law to answer for charges alleged against him, all else but the facts concerning the particular charges to which he answers are excluded, so as to avoid influencing the jury and preventing him from receiving a fair trial.5 Nonetheless, Congress has recently amended the Federal Rules of Evidence by adding
2

Rule 403 reads: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. FED. R. EVID. 403. McCormick asserts that this type of evidence is not irrelevant, but in the setting of a jury trial the danger of prejudice outweighs the probative value. C. McCormick, Evidence 190, at 447 (2d ed. 1972). Rule 404(b) reads: Other crimes, wrongs, or acts. Evidence of other crimes, wrong, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident... FED. R. EVID. 404(b). See Michelson v. United States, 335 U.S. 469, 475-476 (1948): (The inquiry 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.).

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additional Rules concerning the admission of prior act evidence in sexual assault cases that stand to supersede the admissibility restrictions and procedural limitations laid out by Rules 403 and 404(b).6 This recent addition raises many questions as to the timing, purpose, and legitimacy of its enactment. b. Proposal and Passage On September 13, 1994, during Bill Clintons first term as the President of the United States, he signed the Violent Crime Control and Law Enforcement Act of 1994. The Crime Bill, as it was known, included the enactment of Federal Rules of Evidence 413, 414, and 415 as well as a variety of other items.7 Although this was not the first version of the Crime Bill that was proposed (earlier versions did not include the New Rules), the revised and final version of the bill was ultimately approved after constant pressure from several members of Congress.8 In particular, Susan Molinari, a Republican Representative from the state of New York, continually voted down the bill and blocked its approval because it failed to incorporate her proposition to include amendments to the previously standing Federal Rules of Evidence involving crimes of sexual assault.9 The New Rules finally came into effect on July 9, 1995. They were ordained in order to make prior act evidence in cases of sexual assault and child molestation admissible for any matter to which it is relevant.10 Rule 413 concerns cases involving sexual assault and
6

Rule 413(a) reads: In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendants commission of another offense of offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. FED. R. EVID. 413(a). See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 320935(a), 108 Stat. 1796, 2135-37 (codified at 42 U.S.C. 13,701 et seq.).

8 9

See William Douglas, Right, Left Oppose Crime Bill, NEWSDAY, Aug. 10, 1994, at A19. See 140 CONG. REC. H8991 (daily ed., Aug. 21, 1994) (statement of Rep. Molinari) (explaining her original refusal to support the bill). 10 Rule 413 reads: Evidence of Similar Crimes in Sexual Assault Cases:

PROPENSITY, PREEMINENCE, AND PREJUDICE

purports to allow the prosecution in these cases to admit evidence that the accused had been charged or convicted of similar prior acts of sexual assault in an attempt to prove guilt.11 The New Rules, specifically Rule 413, are in direct disagreement with the previously standing Rules of Evidence and have received a wealth of criticism from the vast majority of both the legal and judicial communities.12 The New Rules have been accused of being contradictory to one of the most essential aspects of the American criminal justice system. They blatantly allow people to be tried for who they are, rather than what they have done.13
a. In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendants commission of another offense or offenses of sexual assault 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 the statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen 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. d. For purposes of this rule and Rule 415, offense of a sexual assault means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved i. any conduct proscribed by chapter 109A of title 18, United States Code; ii. contact, without consent, between any part of the defendants body or an object and the genitals or anus of another person; iii. contact, without consent, between the genitals or anus of the defendant and any part of another persons body; iv. deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or an attempt or conspiracy to engage in conduct described in paragraphs (1)(4). See id.

11 12

See REPORT OF THE JUDICIAL CONFERENCE OF THE UNITED STATES ON THE ADMISSION OF CHARACTER EVIDENCE IN CERTAIN SEXUAL MISCONDUCT CASES, submitted to Congress on Feb. 9, 1995, in accordance with 320935(c) of the Violent Crime Control and Law Enforcement Act of 1994 ( 329035(c) of Act Sept. 13, 1994, P.L. 103-322 (note to this rule)) See also Notes to Rule 413 (Sept. 13, 1994, P.L. 103-322, Title XXXII, Subtitle 320935(a)-(e), 108 Stat. 2136.).

13

See United States v. Foskey, 636 F.2d 517, 523 (D.C. Cir. 1980). See also United States v. Myers, 550 F.2d 1036, 1044 (5th Cir. 1977).

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III. Opposition
a. Prejudicial Impact There is much speculation as to why Congress chose to amend the previous Rules, and even more controversy surrounds the predicted consequences they might have on the way that federal courts operate. Many argue that the New Rules challenge the integrity and rationality of the preexisting rules, while some go on to suggest that Congress folded under increased pressure from politicians and special interests to demonstrate an effort to crack down on particularly heinous crimes such as rape. It is said that because of this pressure, the language and structure of the New Rules are remarkably poorly drafted and vague.14 The New Rules received evaluation from 112 individuals, 8 local and 8 national legal associations. Out of the collection of judges, lawyers, legal organizations, and law professors, the outstanding majority opposed the incorporation of the New Rules into the Rules of Evidence.15 Among the dissenting opinions, concerns were raised regarding the possibility of unnecessary prejudicial impact, as well as several questions related to the copious amounts of drafting errors that could give rise to complications that were not intended by the creators of the Rules. It is well known that propensity evidence is generally excluded for a variety of reasons.16 Examples may include the tendency of juries to convict defendants based on their beliefs that because they have been accused or convicted of similar crimes in the past,
14 15

See Eric D. Ojala, Propensity Evidence Under Rule 413: The Need for Balance, 77 WASH. U. L. QU. 950 (1999).

REPORT OF THE JUDICIAL CONFERENCE OF THE UNITED STATES ON THE ADMISSION OF CHARACTER EVIDENCE IN CERTAIN SEXUAL MISCONDUCT CASES, submitted to Congress on Feb. 9, 1995, in accordance with 320935(c) of the VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994 ( 329035(c) of Act Sept. 13, 1994, P.L. 103322 (note to this rule) (citing Notes to Rule 413 (Sept. 13, 1994, P.L. 103-322, Title XXXII, Subtitle 320935(a)(e), 108 Stat. 2136.)). See supra note 4.

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PROPENSITY, PREEMINENCE, AND PREJUDICE

they are bad people and deserve to be punished, regardless of whether or not they are guilty of the charges in question.17 Propensity evidence has repeatedly been shown to hold more weight with jurors than it would traditionally be held under more objective circumstances.18 Although the admission of prior acts evidence will undeniably increase the probability of a conviction for the state, the introduction of such evidence proliferates the possibility of establishing an institutionalized tradition of moral condemnation to accompany the legal and punitive justice that is traditionally expected of the judicial process. The combination of emotion and moral conviction is a dangerous one in any theater of operations. In a courtroom this judgmental amalgamation can carry with it a collection of its own problems and can be a significant detraction from the veracity of the judicial process itself.19 To say that a man is somehow predisposed to commit a specific type of crime due to an inherent behavioral pattern is to deny the very essence of what makes crime punishable. The freedom to choose and decide the course of ones actions is crucial to the institutional right to punish such bad acts. The justification behind punishment rests on the defendants choices, rather than compulsions of an inherent predisposition that causes him to violate the law. If it were not for the aspect of free will involved in the decisions leading up to the commission of an offense, it would be insulting to reason to punish him for some instinctual obligation, over which he has no control.20 It is this same reasoning that stays
17

See James S. Liebman, Proposed Evidence Rules 4113 to 415 Some Problems and Suggestions, 20 U. DAYTON L. REV. 753, 754 (1995). See supra note 1 at 468 (Jurors may have a tendency to give excessive weight to the [defendants] vicious record of crime.) See Ojala, supra note 14 at 974. Gerard E. Lynch, RICO: The Crime of Being a Criminal, Parts III & IV, 87 COLUM. L. REV. 920, 934-936 (1987).

18

19 20

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the hand of justice from penalizing people on the basis of race, gender, or other unchangeable aspect of their person. b. Due Process There were many that spoke up against the implementation of the New Rules, although the Crime Bill was eventually passed. Senator, and now Vice President of the United States, Joseph Biden was one to speak out against the New Rules in terms of their infringement on the defendants right to a fair trial, as well as the encroachment on the principles of Due Process guaranteed to each citizen by the Constitution.21 Congressman Charles E. Schumer, the Democratic Representative from New York, expressed his concerns about the New Rules affect on Due Process to the House of Representatives on June 29, 1994 and vehemently asked the House to reconsider the inclusion of the New Rules in the Crime Bill. Representative Schumer made several valid points, including his plea to the House to consider that the Bill would allow any allegations whatsoever for these two crimes...not a conviction, not even something that was admitted in court, but in any prior evidence.22 The idea that the informal allegations referred to by Representative Schumer would be considered in determining the guilt of a defendant is an obvious contradiction to Anglo-Saxon jurisprudence. Furthermore, the aforesaid allegations would only be admissible in two types of crimes. This fallacious logic offends the Constitutional rights of

21

See 139 CONG. REC. S15,072 (daily ed. Nov. 4, 1993) (statement of Sen. Biden) This is not a fair thing to do to an individual because it does not speak to the elements of the crime. It does not speak to whether he was there at the place at the time and moment and committed the crime. See 140 CONG. REC. H5439 (daily ed. June 24, 1994) (statement of Rep. Schumer) (Make no mistake about it my colleagues, this would say, not just a conviction but any allegation at all would be admissible in a court, not for all crimes but for these crimes. That is turning our system of due process on its head.).

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PROPENSITY, PREEMINENCE, AND PREJUDICE

each United States citizen that is guaranteed by the Due Process Clause of the 14th Amendment. At the time of the Crime Bills ratification, the Supreme Court had not yet established a firm position on whether or not the unconditional admission or prior acts evidence violated the Due Process Clause.23 In cases such as Patternson v. New York, the Court had made it abundantly clear that rules pertaining to judicial procedure do not have the ability to supersede the Due Process Clause unless they conflict with certain fundamental principles of judicial precedent or injunction.24 Jason McCandless supplies an explanation of the two most influential factors in evaluating whether or not a principle can be considered fundamental. He describes a fundamental principle as one that is rooted in historical practice and one that is essentially fair in operation.25 The presumption of innocence until guilt is proven has been tightly woven into the historical fabric of American judicial practice.26 The practice of scrutinizing the authenticity of the accusation itself before determining the guilt of the accused can be dated back to Sixth Century Roman times.27 By moving to pass laws that specifically target and eliminate this right in sexual assault cases, the New Rules blatantly contradict historical precedent. Applying the concept of automatic prior acts evidence admission to an
23

See Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991) ("Because we need not reach the issue, we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of 'prior crimes' evidence to show propensity to commit a charged crime."). See Patterson v. New York, 432 U.S. 197 (1977). (In Patterson, the Court rejected a due process challenge to a New York statute that required the defendant to take on the burden of proof for an affirmative defense of emotional disturbance in a criminal trial.). See Jason L. McCandless, Prior Bad Acts and Two Bad Rules: The Fundamental Unfairness of Federal Rules of Evidence 413 and 414, 5 WM. & MARY BILL OF RTS. J. 689, 702 (1997). See Coffin v. United States, 156 U.S. 432 (1895). See Alan Watson, The Digest of Justinian. Philadelphia: University of Pennsylvania Press. ISBN 0812216369 ed. [1985] (1998).

24

25

26 27

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acute selection of crimes only serves to validate the supposition that the New Rules are in opposition to the fairness criterion set forth in the evaluation given by McCandless.28 By this logic, the New Rules are in violation of the historical legal precedent of Presumed innocence and Due Process, and also of the inherent fairness involved in the application of evidence rules, therefore a conclusion of their unconstitutionality should follow.

IV. Rape
a. What is Rape?29 One of the more considerable problems that accompany the universal application of evidence rules in sexual assault cases is the fact that under the New Rules, all sexual assault cases are viewed as the same crime, and thus prior acts are automatically admissible. The drawback to this generalization is that all rapes and sexual assaults are not the same, and to treat them as such detracts from the probability of a conducting a proper arraignment. The New Rules are quick to rely on a stereotypical, archaic definition of what rape is.30 In order to more fully understand what constitutes rape, it is important to consider, among other things, the motivation behind the rape, the societal and cultural norms surrounding sexual behavior, and the difference between the archetypal rapist and the actual rapist.31 By ignoring the differences between what people think rape is, and what rape actually is, Rule 413 is guilty of oversimplifying the concept of sexual assault as a whole, and has
28 29

See McCandless supra note 25 at 702.

The federal definitions for aggravated sexual assault and related sexual abuse crimes are defined in 18 U.S.C. 109A 22412248; See also FBI NATIONAL PRESS OFFICE, Advisory Board Subcommittee Votes to Change Definition of Rape in Uniform Crime Reporting Program, Press Room, October (2011) (Recently, the FBI has announced that they planned To change the definition of Rape in the UCR SRS to: Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.). See Katharine K. Baker, Once A Rapist? Motivational Evidence and Relevancy in Rape Law, 110 HARVARD L. REV. 563, 565 (1997). See id. at 566.

30

31

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subsequently failed to make the proper distinctions in sexual assault cases that are necessary when attempting to accurately define rape. b. Why is Rape Different? The justifications presented in favor of the implementation of the New Rules tend to rely on the premise that rape is inherently different from other crimes.32 One such justification is based on the assertion that rapists consist of a small class of depraved individuals33 and are somehow different than the perpetrators of other crimes. However, according to numerous studies and empirical evidence, collected by both psychologists and nationwide surveys, there continues to be no clear distinction between the mental state of a rapist and a normal person.34 In addition to the absence of any outstanding psychological depravities, the number of individuals who admit to the tendency and even the commission of rape is anything but small.35 These recurring discrepancies between the public perceptions of rape allow laws to be passed that reflect an inaccurate model of a very serious crime. Proponents of Rule 413 also argue that the higher recidivism rate for rapists is a factor in the separate classification of rape from other crimes, however, the facts seem to disagree with this rationale once again. The recidivism rates for rapists have proved to be one of the lowest in comparison with other serious crimes.36 The only crime that seems to
32 33 34 35 36

See generally id. at 569-583. See id. at 576. See id. at 577. See id. at 576.

See Allen J. Beck, BUREAU OF JUSTICE STATISTICS, U.S. DEPT. OF JUSTICE, Recidivism of Prisoners Released in 1983 (1989) (This study, conducted by the Bureau of Justice Statistics in 1989, tracked 100,000 prisoners for three years in an attempt to observe the recidivism rates.) See also Thomas J. Reed, Reading Gaol Revisited: Admission of Uncharged Misconduct Evidence in Sex Offenders Cases, 21 AM. J. CRIM. L. 127 (1993) (These studies also report

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have a lower recidivism rate than rape is murder,37 yet murder is not included as a crime in which it is necessary to automatically allow the admission of prior act evidence.38 Even in terms of severity and heinousness, rape and sexual assault fail to reach the top of the list and consistently score lower than homicide for atrocious crimes.39 If the recidivism rate for a particular crime were to be a factor in the admission of prior acts evidence, it would appear that the exception would be better suited to include cases of larceny or drug offenses.40 c. Who Rapes? The entire point of Rule 403 and 404(b) is to prevent the admission of unnecessarily prejudicial evidence in trial court proceedings. Evidence of prior acts are known to weigh heavily on jury decisions to the point where the probative value of the prior acts evidence is overwhelmed by the emotional stirrings brought on by descriptions of previous sexual assault charges.41 The impact of allowing the admission of prior acts evidence extends far beyond the scope of the trial at hand. Knowledge that evidence of past contact with the criminal justice system will be automatically admissible in federal courts will undoubtedly
that the recidivism rate for pedophilia is below the national average for all crimes.). See also Reed at 151 (These findings also confirm the findings of the 1989 B.J.S. study on recidivism.).
37 38

See Baker, supra note 30 at 578.

Some would argue that the documented recidivism rates are not accurate due to the dark figures of crime surrounding rape. Sexual assault has been deemed one of the most underreported crimes, with over sixty percent of sexual assaults being left unreported according to the U.S. DEPARTMENT OF JUSTICE, 2005 NATIONAL CRIME VICTIMIZATION STUDY, (2005). The NCVS also shows that sexual men make up about ten percent of victims, yet they are the least likely to report a sexual assault. These numbers show that the ratio of actual sexual assaults in comparison reported sexual may form the basis for the assumption that rapists have a higher recidivism rate than originally thought. See Edward J. Imwinkelried, Undertaking the Task of Reforming the American Character Evidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 Fordham Urb. L. J. 285, 289 (1995) (In a 1986 poll, 1,000 adults were surveyed and asked to rank various crimes according to their heinousness... While murder was the crime rated most serious, rape, incest, and child abuse were the next three highest rated crimes.) See Baker, supra note 30 at 579. See id. at 581.

39

40 41

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come into play down to the lowest level, with patrolling officers instinctively targeting those who pose the greatest possibility of securing a conviction.42 The process of street- level law enforcement, along with most other facets of the criminal justice process, has been predominately stacked against minorities throughout history.43 These new Rules indirectly cause the shrinking of the incredibly small class of people targeted for a crime that is caused by a deceptively large class of perpetrators. In the pursuit of suspects in sexual assault cases, law enforcement officers are likely to begin their search by looking through police databases in order to identify possible perpetrators based on records of previous police involvement. Although this method provides for an especially convenient starting point to an investigation, it immediately increases the possibility of accusing those who are likely have limited access to high-quality legal counsel, adequate financial means, or other means of proper defense. The perception that a conviction will be handed down more willingly to those who have already been accused or convicted of rape will affect several aspects of the judicial process. The police, upon receiving the report from the victim, will be inclined to first search the police databases for individuals with prior police contact to ease their search, a class of men widely known to be of low socioeconomic status, and of racial minority.44 This added enticement for police officers to arrest those with prior charges and convictions, combined with the erroneous and misleading perception of recidivism among convicted rapists,45 will
42 43

See id.

See McQuirter v. State, 36 Ala. App. 707, 63 So. 2d 388 (1953) (The Court in its instruction to the jury states, In determining the question of intention, the jury may consider social conditions and customs founded upon racial differences, such as that the prosecutrix was a white woman and the defendant was a Negro man.). See generally Baker, supra note 30, at 592. See Beck, supra note 35.

44 45

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undoubtedly increase the probability of prosecuting those who are unlikely to have access to satisfactory legal counsel, and thus more likely to be on the receiving end of harmful discrimination.46 Conversely, those who share the coincidence of being born into a privileged racial or socioeconomic status with statistically less police contact will continue to enjoy exclusion from such prejudice.47 The problem does not necessarily lie in the possibility of overabundant false accusations, but more so in the biased and unbalanced actions on the part of law enforcement to charge and convict men with prior police contact. This liability is exacerbated by the automation of character evidence admissibility in sexual assault cases and stems from the long history of racism and discrimination that has plagued our society. Courts have consistently discriminated against minorities in the past, and evidence of racial disparities reveals itself throughout the entirety of the judicial process, ranging from the length of sentences48 to the racially one-sided implementation of the death penalty for rapists.49 Not surprisingly, there are even cases in which judges have specifically instructed juries that they can and should use the social construction of racial inequality in determining guilt.50 As discussed earlier, broad misconceptions concerning rape and what constitutes an average rape scenario has led many to believe that every rape involves violence, deceit, and other elements of angry or sadistic behavior. Recent data shows that in 2005
46

See generally Jeanette Covington, Crime and Racial Constructions: Cultural Misinformation About African Americans in Media and Academia, Lexington Books. 129-180 (2010). See supra note 43. See id. at 594 (citing Ray F. Herndon, Race Tilts the Scales of Justice, DALLAS TIMES HERALD, Aug. 19, 1990, at A1). See id. (citing Michael Meltsner, Cruel and Unusual, The Supreme Court and Capital Punishment 75 (1973) (citing BUREAU OF PRISONS, U.S. DEPARTMENT OF JUSTICE, NATIONAL PRISON STATISTICS, CAPITAL PUNISHMENT 19301970, at 12 tbl.4 (1971)). See supra note 42.

47 48

49

50

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approximately two-thirds of reported rapes were committed by someone who was known to the victim. More precisely, seventy three percent of sexual assaults were perpetrated by a non-strangers, thirty eight percent of rapists were a friend or acquaintance of the victim, and twenty eight percent of the victims reported that they had previously engaged in an intimate relationship with the perpetrator.51 It is obvious that there are a significant number of cases that do not fall under the violently polarized definition of rape or sexual assault that Federal Rule 413 aims to protect against. For example, there are instances in which an individual is convicted for having consensual sex with someone who is not of the legal age to consent to sex. These cases can indeed involve the stereotypical situation in which an older man takes advantage of a nave and innocent youth, however, they can also present themselves with an entirely different set of facts. Consider the example of a young twenty-something male who, by mere mistake of fact, ends up on the receiving end of a statutory rape charge and is convicted, forever labeling him as a sexual predator. This charge will stay with him the rest of his life and will undeniably alter his life indefinitely. Mistake of fact is not usually accepted as a defense to a rape charge,52 and the case in question is much different than the violent, sadistic, stereotypical rape scenario that is common in the mind of the average juror upon hearing the word rape. In the case of the young adult male who is subsequently accused of a completely different, and utterly
51 52

See U.S. DEPARTMENT OF JUSTICE, 2005 NATIONAL CRIME VICTIMIZATION STUDY, (2005).

See Garnett v. State, 332 Md. 571, 632 A.2d 797 (1993) (The decision of the Court states that We think it sufficiently clear, however, that Marylands second degree rape statute...makes no allowance for a mistake-of-age defense. The plain language of 463...and the legislative history of its creation lead to this conclusion... This interpretation is consistent with the traditional view of statutory rape as a strict liability crime designed to protect young persons from the dangers of sexual exploitation by adults, loss of chastity, physical injury, and, in the case of girls, pregnancy. The majority of states retain statutes which impose strict liability for sexual acts with underage complainants.)

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15

unspeakable type of rape due to a collection of unknown variables ranging from possible police discrimination down to the luck of the draw, one would be remiss in thinking that the admission of his prior conviction into evidence would serve any purpose other than to unfairly prejudice a jury toward a conviction. Under the previous configuration of the Federal Rules of Evidence, this unfortunate juxtaposition would normally be irrelevant.53 The presiding judge would immediately identify the disproportionately prejudicial impact of the previous incident over the barely probative value of the prior acts evidence and prevent scenarios such as this from ever becoming an issue, let alone a cornerstone of the case.54 Due to the oversimplified, redundant, and generally vague language throughout Federal Rule of Evidence 413,55 the court is now forced to waste time and taxpayer money56 dealing with a nonissue that could have been avoided had the legislature simply allowed the Federal Judiciary to continue
53

See Rosanna Cavallaro, Federal Rules of Evidence 413415 and the Struggle for Rulemaking Preeminence, 90 J. L. AND CRIM. 01, 30 (2007) (The Judicial Conference concluded that the concerns expressed by Congress and embodied in new Evidence Rules 413, 414, and 415 are already adequately addressed in the existing Federal Rules of Evidence, in particular Rule 404(b)).
OF CRIM.

54

See supra note 14 at 967 (On its face, Rule 413 seems to force a court to include sexual misconduct evidence even if the court determines that the various factors outlined in Rule 403 substantially outweigh the probative value of the evidence.). See id. at 967 (citing James Joseph Duane, The New Federal Rules of Evidence on Prior Acts of Accused Sex Offenders: A Poorly Drafted Version of a Very Bad Idea, 157 F.R.D. 95, 111-13 (1994) (asserting that Rules 413415 will make the Federal Rules of Evidence inconsistent and inexplicable) (A minority of commentators argue that Rule 413 requires admission of relevant prior sexual misconduct irrespective of other rules. This argument centers around the rules use of the phrase is admissible, which suggests that if the evidence is relevant, it is admissible without regard for other rules of evidence (including Rule 403)). See Karen Redmond, Judiciary Warns of Impact of Deep Cuts for FY 2012, [http://www.uscourts.gov/News/NewsView/11-0406/Judiciary_Warns_of_Impact_of_Deep_Cuts_for_FY_2012.aspx] (April 6, 2011) (The Federal Judiciary is seeking $7.3 billion for the FY 2012, $299 million more than for FY 2011. The Judiciarys largest account funds the bulk of federal court operations, including the salaries and expenses of regional courts of appeals, district courts, bankruptcy courts and probation and pretrial services offices. This account requires $5.2 billion for FY 2012, in addition to the $513 million required to provide for additional court security officers, Federal Protective Service costs, and improved security at federal courthouses.) See also FISCAL YEAR 2012, BUDGET OF THE UNITED STATES GOVERNMENT, DEPT. OF JUSTICE, p. 105 (2011).

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conducting business as it had been for over half of a century since the Rules Enabling Act was signed in 1934.57 Some may argue that situations like this are an anomaly58 and should be disregarded in the interest of bringing justice to those that have in fact committed the suggested atrocities.59 While there is a great and dire need to punish and prevent the horrors that await women at the hands of such psychopaths, there is an important principle to understand. Prior to shrugging off the occasional mistake as collateral damage in an ongoing effort to protect the masses, it must be acknowledged that our criminal justice system is rooted in the Anglo-Saxon premise that it is better that ten guilty men escape, than that one innocent suffer.60

V. The Powers That Be

a. The Rules Enabling Act The idea of a separation-of-powers between the main bodies of a federal government is neither a new concept, nor is it unique to United States. The benefits of this intragovernmental restraint are commonly known, as are the powers delegated to each

57

See Cavallaro supra note 52 at 5 (note 15) (The new rules were enacted by Congress as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322 (September 13, 1994), and were not the product of the rulemaking process contemplated by the Rules Enabling Act, 28 U.S.C. 2072 (1990).). See Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 AM. CRIM. L. REV. 57 (1995) (Although Rule 413s broad rule of admissibility applies only in federal rape cases only a tiny fraction of all rape prosecutions nationwide it may represent the opening salvo in a nationwide campaign on the state level to reform evidence law in rape cases.). See Ojala, supra note 14 at 974 (Ojala says that While increasing the possibility that the state will prevail, the dangers to the integrity of the judicial system are great.). See Lauren Tallent, Through the Lens of Federal Evidence Rule 403: An Examination of Eyewitness Identification Expert Testimony Admissibility in the Federal Circuit Courts, 68 WASH. & LEE L. REV. 765, 766 (2011) (citing William Blackstone, Commentaries on the Laws of England, 289 (WILLIAM DRAPER LEWIS ED., THE LAWBOOK EXCHANGE 2008), (1795)).

58

59

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branch by the U.S. Constitution.61 It is only when the lines that define these power divisions are crossed that problems being to arise.62 Since the early part of the twentieth century, the drafting of the rules that pertain to federal judicial procedure and the presentation of evidence in federal courts have been almost exclusively left up to the members of the federal judiciary themselves, or their appointed underlings.63 Very little influence, if any, has been impressed by the general legislatures. The Rules Enabling Act is a piece of legislature that is meant to codify and define the constitutional and statutory limitations placed upon the federal judiciary and Congress. It was meant to prevent Congress from interfering in the judicial process by placing a constitutional limitation on Congress and allowing the judicial branch to establish rules of practice and procedure. A statutory limitation also assigns the responsibility of creating substantive laws to the legislative branch.64 If this logic is correct, actions taken by the legislature that purport to establish rules of procedure and evidence should be disregarded and viewed as a violation of the boundaries set forth in the Act. Since Congress is charged with creating laws of substantive process, the task of creating general rules of practice and procedure65 is left to the judicial branch and technically falls within the scope of substantive law that is set forth by Congress. General practice dictates that although
61 62

See U.S. CONST. ART. I-III.

See Marbury v. Madison, 5 U.S. 137 (1803) (Supreme Court case that illustrates how the power of the Supreme Court, or the Federal Courts, depends not only on its constitutional authority, but on how the Constitution is interpreted, how the judicial branch avoids a confrontation with the other branches of government, and how the members of the court go about making a decision. The decision in the case established the right of judicial review for the federal courts.). See RULES ENABLING ACT, 28 U.S.C. 2073(a) (1934). See Cavallaro, supra note 49, at 14 (citing Linda S. Mullinex, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 77 MINN. L. REV. 1284, 1299 (1993)). See RULES ENABLING ACT, supra note 62, at 2072(a) (1934).

63 64

65

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PROPENSITY, PREEMINENCE, AND PREJUDICE

Congress has the final say on matters of evidence and procedure,66 it has commonly refrained from asserting itself and has allowed the judicial branch to exercise control over the drafting and implementation of new evidence rules.67 It is because of this understanding between the branches that upon reviewing the manner in which Federal Rule of Evidence 413 came into existence, a few questions start to arise. Why would the legislative branch choose to interfere in matters of evidence admission and procedure after such a long history of indifference? What would cause the legislative body to deviate from the norm so much as to interfere in the workings of the federal judiciary, even in the face of virtually unanimous opposition?68 b. A Violation of Procedure and Precedent The new Federal Rule of Evidence, Rule 413, is a redundant and unnecessary piece of legal text because it calls for the automatic admission of prior act evidence in sexual assault cases, which directly contradicts the instructions for admission of propensity evidence that are laid out by both Rule 403 and Rule 404(b)69. The very language of the rule is suggestive of the kind of hasty, circular logic that stems from the workings of the

66

See id. at 2074(b) (Any such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress.). See id. at 2073(a)(2) (The Judicial Conference may authorize the appointment of committees to assist the Conference by recommending rules to be prescribed... Each such committee shall consist of members of the bench and the professional bar, and trial and appellate judges.). See Notes to Rule 413 (Sept. 13, 1994, P.L. 103-322, Title XXXII, Subtitle 320935(a)-(e), 108 Stat. 2136.). See Liebman supra note 17 at 756 (Proposed Rules 413-415 create exceptions to Rule 404(a) and to the first sentence of Rule 404(b) that are extremely broad in terms of both the situations in which the sentences apply and the types of evidence to which they apply, including the specific instance evidence. These new broad exceptions are so out of keeping with the pre-existing propensity provisions as to cause the propensity rules, taken as a whole, to lose coherence.).

67

68 69

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inexperienced.70 It is likely that political and public outcries have influenced the speedy and improper procedural implementation of these new Rules. In his speech to the American Bar Association in 1906, Dean Roscoe Pound illustrates a prophetic example of why, among other reasons, the legislative branch rarely interferes in matters of judicial business. The speech, entitled The Causes of Popular Dissatisfaction with the Administration of Justice, also provides some insight as to the reason why the language and overall construction of the New Rules are lacking in solidarity: Legislatures today are so busy... that it is idle to expect [them] to take a real interest in anything so remote from newspaper interest, so technical, and so recondite as legal procedure... When rules of procedure are made by judges, they will grow out of experience, not the ax-grinding desires of particular lawmakers.71 Although there is an inherent separation-of-powers between the respective branches of government, there seems to be a lack of cooperation and a conflict of interest when it comes to matters of public outcry. The judiciary has been handling cases concerning the admissibility of evidence for over a century.72 The employment of the New
70

See id. (There has been a substantial amount of writing recently on the need to reform the propensity rules, either by withdrawing the presumption that propensity evidence is admissible or by strengthening the presumption. But to do both that is, to retain the general presumption of inadmissibility, but then make mandatorily admissible two of the largest categories of such evidence is to deprive the rules of any coherent rationale.). See Roscoe Pound, Causes of Popular Dissatisfaction in the Administration of Justice, 40 AM. L. REV. 729 (1906). See evidence cases e.g., People v. Molineux, 61 N.E. 286 (N.Y. 1901); People v. Guardia, 135 F.3d 1326 (10th Cir. 1998); United States v. Queen, 132 F.3d 991 (4th Cir. 1997); People v. Zachowitz, 254 N.Y. 192, 172 N.E. 466 (1930); United States v. Foskey, 636 F.2d 517, (D.C. Cir. 1980).

71

72

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PROPENSITY, PREEMINENCE, AND PREJUDICE

Rules effectively removes a vital decision-making tool from the arsenal of a presiding judge adjudicating individual cases tried before juries and, on a larger scale, undermines the years of experience and knowledge that were used to carefully carve out the original Rules.

VI. Conclusion
The path to resolution is almost certainly a long one, but it is important to remember that problems are almost always more easily identifiable than their solutions. A claim of error must soon be followed by proposed solutions; and in the case of the Federal Rules of Evidence included in the Crime Bill, some commentators have offered such solutions.73 Instead of simply acknowledging shortcomings, an attempt to reform and improve must also be made. Humans are constantly attempting to modify and improve the world around them. This has been obvious since the days of the Stone Age. Prehistoric tools were tediously crafted by early hominids in an attempt to improve their surroundings, presumably to ease the struggles that accompanied every day life some 2.5 million years ago.74 Today, modern humans are still experimenting in an effort to increase the quality of life for themselves and those around them. Although change is inevitable and continuous, sometimes it may be best to simply stick with what works. The more commonly recognized version of this concept is widely
73

James S. Liebman, Proposed Evidence Rules 413 to 415 Some Problems and Suggestions, 20 U. DAYTON L. REV. 753, 760 (1995) (Liebman suggests If some version of the proposed rules is to be retained, the rules at the least should be amended to limit admissibility to evidence of prior convictions for sexual assault or child molestation. This change would avoid some of the qorst potential abuses that may arise from the use of unsubstantiated charges as a basis for an inference that a defendant has a propensity to offend and thus that he or she is guilty of the offense at hand. This change would also prevent trial judges from having to conduct numerous disrupting, confusing, and time-consuming mini-trials on the validity of each allegation of prior misconduct, in the process of trying sexual assault and child molestation cases.). See generally S. Semaw et al., 2.5-million-year-old Stone from Gona, Ethiopia, 385 Nature 333-336 (1997).

74

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attributed to a man named T. Bert. (Thomas Bertram) Lance,75 the Director of Office Management and Budget in Jimmy Carters 1977 administration. He was under the impression that a great deal of trouble and confusion can be avoided by leaving certain systems in place to work as they were intended to, instead of constantly trying to improve programs that may not have lacked any deficiency at all.76 In a quote from the May 1977 newsletter of the U.S. Chamber of Commerce, Nations Business, Bert Lance said that he believed he could save the United States billions of dollars if he could get them to adopt one simple motto: If it aint broke, dont fix it.77 This same logic could have proved to be quite useful if it had it been used in 1994 during the process of forming the additions to the Federal Rules of Evidence.

75

U.S. Chamber ofCommerce, Nation's Business, May 27, 1977, attributed to Thomas Bertram (BeI1) (Lance in the Phrase Finder, [http://www.phrases.org.uk/meaningslif.it.aint.broke.dont.fix.it.html]; Answers.com. [http://www.answers.com/topic/if.it.ain.t.broke.don.t.fix.it]; Wikipedia, [http://en.wikipedia.org/wiki/ if.it.ain%27t.broke"don%27t.fix.it.]) (Mr. Lance also was quoled as having said this in the Washington Post, on December 23, 1976.) (See The Big Apple: "If it ain't broke, don't fix it," [http://www.barrypopik.comlindex.php/ new.york.city/enlry/if.it/aint/broke.donl .fix.iI.]). Thomas Bertram (T. Bert) Lance, Nation's Business, U.S. CHAMBER OF COMMERCE, May Issue, (1977). See id.

76 See 77

BIBLIOGRAPHY
1. 139 CONG. REC. S15,072 (daily ed. Nov. 4, 1993) (statement of Sen. Biden). 2. 140 CONG. REC. H8991 (daily ed., Aug. 21, 1994) (statement of Rep. Molinari)

3. Alan Watson, The Digest of Justinian. Philadelphia: University of Pennsylvania Press. ed [1985] (1998). 4. Allen J. Beck, BUREAU OF JUSTICE STATISTICS, U.S. DEPT. OF JUSTICE, Recidivism of Prisoners Released in 1983 (1989). 5. C. McCormick, EVIDENCE 190, at 447 (2d ed. 1972). 6. Coffin v. United States, 156 U.S. 432 (1895). 7. Edward J. Imwinkelried, Undertaking the Task of Reforming the American Character Evidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 Fordham Urb. L. J. 285 (1995). 8. Eric D. Ojala, Propensity Evidence Under Rule 413: The Need for Balance, 77 WASH. U. L. QU. 950 (1999). 9. Estelle v. McGuire, 502 U.S. 62 (1991). 10. FED. R. EVID. 403, 404, 413415, 28 U.S.C 20722074 11. FISCAL YEAR 2012, BUDGET OF THE UNITED STATES GOVERNMENT, DEPT. OF JUSTICE (2011). 12. Frank F. Abbot, A History and Description of Roman Political Institutions. Elibron Classics. (1901). 13. Garnett v. State, 332 Md. 571, 632 A.2d 797 (1993). 14. Gerard E. Lynch, RICO: The Crime of Being a Criminal, Parts III & IV, 87 COLUM. L. REV. 920 (1987). 15. James S. Liebman, Proposed Evidence Rules 413 to 415 Some Problems and Suggestions, 20 U. DAYTON L. REV. 753 (1995). 16. Jane H. Aiken, Sexual Character Evidence in Civil Actions: Refining the Propensity Rule, 1997 WIS. L. REV. 1221 (1997).

BIBLIOGRAPHY
17. Jason L. McCandless, Prior Bad Acts and Two Bad Rules: The Fundamental Unfairness of Federal Rules of Evidence 413 and 414, 5 WM. & MARY BILL OF RTS. J. 689 (1997) 18. Jeanette Covington, Crime and Racial Constructions: Cultural Misinformation About African Americans in Media and Academia, Lexington Books. 129-180 (2010). 19. Karen Redmond, Judiciary Warns of Impact of Deep Cuts for FY 2012, [http://www.uscourts.gov/News/NewsView/11-04- 06/Judiciary_Warns_of_Impact_of_Deep_Cuts_for_FY_2012.asp x] (2011). 20. Katharine K. Baker, Once A Rapist? Motivational Evidence and Relevancy in Rape Law, 110 HARVARD L. REV. 563 (1997). 21. Lauren Tallent, Through the Lens of Federal Evidence Rule 403: An Examination of Eyewitness Identification Expert Testimony Admissibility in the Federal Circuit Courts, 68 WASH. & LEE L. REV. 765 (2011). 22. Marbury v. Madison, 5 U.S. 137 (1803). 23. Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 AM. CRIM. L. REV. 57 (1995). 24. McQuirter v. State, 36 Ala. App. 707, 63 So. 2d 388 (1953). 25. Michelson v. United States, 335 U.S. 469, 475-476 (1948). 26. Notes to Rule 413 (Sept. 13, 1994, P.L. 103-322, Title XXXII, Subtitle 320935(a)-(e), 108 Stat. 2136.). 27. Patterson v. New York, 432 U.S. 197 (1977). 28. People v. Molineux, 61 N.E. 286 (N.Y. 1901). 29. People v. Zachowitz, 254 N.Y. 192, 172 N.E. 466 (1930). 30. REPORT OF THE JUDICIAL CONFERENCE OF THE UNITED STATES ON THE ADMISSION OF CHARACTER EVIDENCE IN CERTAIN SEXUAL MISCONDUCT CASES, submitted to Congress on Feb. 9, 1995, in accordance with 320935(c) of the VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994 ( 329035(c) of Act Sept. 13, 1994, P.L. 103-322 (note to this rule)).

BIBLIOGRAPHY
31. Rosanna Cavallaro, Federal Rules of Evidence 413415 and the Struggle for Rulemaking Preeminence, 90 J. OF CRIM. L. AND CRIM. 01 (2007). 32. Roscoe Pound, Causes of Popular Dissatisfaction in the Administration of Justice, 40 AM. L. REV. 729 (1906). 33. RULES ENABLING ACT, 28 U.S.C. 2071 - 2077 (1934). 34. S. Semaw et al., 2.5-million-year-old Stone from Gona, Ethiopia, 385 Nature 333-336 (1997). 35. Thomas Bertram (T. Bert) Lance, Nation's Business, U.S. CHAMBER OF COMMERCE, May Issue, (1977). 36. Thomas J. Reed, Reading Gaol Revisited: Admission of Uncharged Misconduct Evidence in Sex Offenders Cases, 21 AM. J. CRIM. L. 127 (1993). 37. U.S. DEPARTMENT OF JUSTICE, 2005 NATIONAL CRIME VICTIMIZATION STUDY, (2005). 38. United States v. Foskey, 636 F.2d 517 (D.C. Cir. 1980). 39. United States v. Guardia, 135 F.3d 1326 (10th Cir. 1998). 40. United States v. Myers, 550 F.2d 1036 (5th Cir. 1977). 41. United States v. Queen, 132 F.3d 991 (4th Cir. 1997). 42. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 320935(a), 108 Stat. 1796, 2135-37 (codified at 42 U.S.C. 13,701 et seq.). 43. William Blackstone, Commentaries on the Laws of England, 289 (WILLIAM DRAPER LEWIS ED., THE LAWBOOK EXCHANGE 2008), (1795). 44. William Douglas, Right, Left Oppose Crime Bill, NEWSDAY, Aug. 10, 1994, at A19 (1994).