Other Crime, Wrong, or Act Evidence: The Waning Penchant Toward Admissibility as the Wars Against Crime Stagger on: Part II. Sexual Battery and Child Molestation

Earlier articles in the Criminal Law Bulletin explored the fundamentals and current practice as to the admissibility of other crime, wrong, or act evidence, including a proposal for a " 'Defining' A New Paradigm", 47 Crim.L.Bull. 998 (2011), urging a restructuring of character evidence to finally recognize the admissibility in fact of other crimes, wrongs, or acts evidence when offered for conformity with respect to certain subject matter areas. This article dealing with sexual battery and child molestation and an article in the prior issue of the Criminal Law Bulletin on the "War on Drugs," 49 Crim.L.Bull. 875 (2013), explore recent legislative and judicial trends currently influencing the admissibility of other crime, wrong, or act evidence that move in the opposite direction. Both articles are premised upon the notion that society has tired of conducting the respective wars. With respect to sexual battery and child molestation, society is simply, apparently, collectively less willing than victim advocates to enhance the prospect of justice for the victims of sexual battery and child molestation at the possible risk of enhancing the error rate for wrongful convictions.Following the Warren court’s expansion of a a criminal defendant’s constitutional rights highlighted by Miranda in 1966, the pendulum began to swing back towards the victim/prosecution’s favor in sexual battery and child molestation cases in the late 1970’s through early 90’s. By the time Rule 412 added a rape shield statute to the Federal Rules of Evidence in 1978, over 30 states had already enacted similar provisions. Pioneered by Josephine Bulkley under the auspices of the Young Lawyers Section of the A.B.A., many states passed child sexual abuse hearsay exception provisions either as part of an evidence code or as a free standing statute identical to Florida Evidence Code §90.803 (24). Statutes permitting the use under prescribed circumstances of closed circuit television and videotaped depositions in child sexual abuse cases appeared even before the Maryland v. Craig decision in 1990. Membership in three advisory panels to Justice Department funded research conducted by the Educational Development Center, Inc., between 1987 and 1991 provided an opportunity to learn about application of such procedural modifications in the field. In 1994, Representative Susan Molinary more or less singularly took on the entire evidence establishment prompting Congress to enact Rules 413-415 of the Federal Rules of Evidence. Rules 413-415 created controversy because of their express purpose of altering the time honored proposition sanctified by the United States Supreme Court in 1948 in Michelson v. United States and codified in Rule 404(a)(1) that "Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character trait." Rule 413, in a criminal case in which the defendant is accused of a sexual assault, and Rule 414, in a criminal case in which a defendant is accused of child molestation, provide that "the court may admit evidence that the defendant committed or any other" "sexual assault or child molestation" respectively. "The evidence may be considered on any matter to which it is relevant." As part of the enacting process, it became necessary to concede that Rule 403 would be applicable to Rules 413-414 other crime, wrong, or act sexual assault or child molestation evidence. Even Representative Susan Molinary recognized that "the general standards of the rules of evidence will continue to apply, including the restrictions on hearsay evidence and the court’s authority under Evidence Rule 403 to exclude evidence whose probative value is substantially outweighed by its prejudicial effect."Since 1995, thirteen states, Alaska, Arizona, California, Colorado, Florida, Georgia, Illinois, Kansas, Louisiana, Michigan, Nebraska, Texas, and Utah have adopted some form of statutes similar to Rules 413 ad 414. Of the states that have passed special statutes, some (Florida, Illinois, Louisiana, Missouri, Michigan and Texas) have limited their attention to child victims of sexual abuse. A few states (Florida, Nebraska and Illinois) also impose the higher burden of clear and convincing evidence for demonstrating that the uncharged misconduct occurred. Some students and scholars have advocated for other states to jump on the bandwagon and add propensity rules for sex crime. Five states, Delaware, Indiana, Iowa, Missouri and Washington passed similar legislation, but their Supreme Courts rejected the rules as unconstitutional.Did the promulgation of Rules 413-415 in 1994 in fact usher in a new willingness to create in the federal court and amongst the states a broad exception to the common law ban precluding the admissibility of character evidence as proof of conduct in conformity therewith in sexual assault and child molestation prosecutions? Rules 413-415 as applied is in fact narrower in scope than its pre-existing lustful disposition deprived sexual character common-law cousins. It is clearly safe to say that in both federal and state courts, the attempt through the enactment of Rules 413-415 to significantly broaden the approach to the admissibility of other sexual assaults or acts of child molestation committed by the accused has been a failure.Application of Rule 403 to the concept enunciated in Fed.R.Evid. 413, as well as Fed.R.Evid. 414, has resulted in a substantial victory to those who opposed promulgation of both rules in the first place. Other crimes of sexual assault are not freely admissible to establish character for deviant sexual behavior for the inference that the accused acted inconformity with the character. Where liberalization has occurred, whether by statute, rule or judicial opinion, the great weight of authority limits admissibility of evidence of other acts of sexual assault to those that would otherwise fall into the category of unlinked repeated choice. Only those that specialized in a particular deviant act need beware!!! How narrow the specialization required is jurisdiction dependent.