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Federal Rules of Evidence 413-415 and the Struggle for Rulemaking Preeminence
Abstract
This Article considers Federal Rules of Evidence 413-415, which govern admissibility of similar crimes evidence in sexual assault and child molestation cases in federal courts. Enacted by Congress in 1995 despite the objections of the Judicial Conference, the American Bar Association, and many legal scholars, and in contravention of the established process for promulgating rules of procedure and evidence set out in the Rules Enabling Act, these rules carve an exception out of the rule against the use of propensity evidence where the acts are sexual in nature. In the ten years that the rules have been in effect, the issue that has emerged is the proper scope of trial court discretion to exclude similar acts evidence in sexual assault cases under the general supervisory authority of Rule 403. The issue invites a broader consideration of which branch of government ought to have primacy in the area of evidence rulemaking. Recent years have seen a contraction in the scope of congressional delegation contained in the Rules Enabling Act. This Article considers the question of which branch should enjoy rulemaking preeminence from the perspective not of power, but of institutional competence, considering the nature and purpose of particular evidentiary rules rather than determining the question categorically. I conclude that the rules regarding similar acts involve interests that are fundamentally judicial rather than legislative, and that, accordingly, courts should implement a robust Rule 403 balancing inquiry when presented with similar acts evidence under Rules 413-415.
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.
In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on this image of sex crime perpetrators, legislators and judges have ignored the contrary psychological and criminological evidence. Most critiques of the sex-propensity Rules concentrate on the unfairness part of the Rule 403 equation, but we approach them in a novel way, focusing instead on the absence of empirical support for their so-called probative value. This article examines the empirical support for the probative value of such evidence, revealing that current policy rests on bogus psychology and false empirical assertions. Rules 413-414 typify the regrettable seat-of-the-pants psychologizing on which evidence rule drafters rely too often; the approach eschews a nuanced approach to questions of recidivism and the different types of sex offenders. We argue that rulemakers should look to the disciplines engaged in the empirical study of perpetrator behavior before asserting notions of deviance and recidivism to justify radical changes to evidence law. Finally, we offer specific guidance to judges about how to conceptualize the probative value of evidence of prior sexual misconduct and how to incorporate this knowledge in applying their discretion in admitting sex-crime propensity evidence.
The "CSI effect" is a term that legal authorities and the mass media have coined to describe a supposed influence that watching the television show CSI: Crime Scene Investigation has on juror behavior. Some have claimed that jurors who see the high-quality forensic evidence presented on CSI raise their standards in real trials, in which actual evidence is typically more flawed and uncertain. As a result, these CSI-affected jurors are alleged to acquit defendants more frequently. This Review argues that, while some existing evidence on juror decisionmaking is consistent with the CSI effect, it is equally plausible that watching CSI has the opposite impact on jurors and increases their tendency to convict. The perceived rise in acquittals can also plausibly be explained without any reference either to watching CSI or to viewing crime dramas more generally. For these reasons, and because no direct research supports the existence or delineates the nature of the CSI effect, calls for changes to the legal system are premature. More generally, the issues raised by current attention to the CSI effect illustrate the problems that arise when proposed changes in the legal system are supported by plausible, but empirically untested, "factual" assertions.
This article contends that crime victims should have an unequivocal right to attend a criminal trial, even in cases where they will be called as witnesses. A victim's right to attend trial has strong historical support, as at common law victims attended trial as private prosecutors. More recently, crime victims' rights legislation passed in the majority of states recognizes the victim's right to attend. Nothing in the Constitution prevents victims from attending trial, and strong public policy reasons support such an approach. Observing the trial can have import therapeutic and other benefits for victims. Any risk of prejudice to a defendant from the possibility of a victim "tailoring" testimony to that of other witnesses can be solved through such means as requiring the victim to testify first and permitting thorough cross-examination by defense counsel.
Feminist scholars and activists have long sought to reform rape laws and evidence rules in order to increase the number of successful rape prosecutions in the United States. In partial response to these efforts, and in an effort to decrease crime, the 104th Congress amended the Federal Rules of Evidence by adding Rule 413, which makes prior acts of sexual assault by alleged rapists admissible in criminal sexual assault cases. The new Rule 413 was meant to level the legal playing field between rapists and their accusers. Professor Baker argues that the new Rule is misguided because it fails to recognize the different reasons why men rape. Consequently, the Rule is likely to affect poor and minority men and women adversely, to increase the number of men unjustly convicted, and ultimately, to yield fewer rape convictions than its proponents hope. Nevertheless, Professor Baker argues that prior act evidence can be an important means for identifying the motive of an accused rapist and, when properly understood, should be selectively admitted under Rule 404. This Article considers the various motivations behind the different typologies of rape and demonstrates how a more realistic understanding of motive can at once secure rape convictions, refute persistent stereotypes, advance our understanding of rape, and promote the equitable enforcement of the law.
As the 2001 Chair of the Evidence Section of the American Association of Law Schools, I was responsible for organizing the panel on "The Politics of [Evidence] Rulemaking." I put together a panel consisting of former members of the Federal Advisory Committee on the Rules of Evidence and its most vocal critic. I asked them to address the following questions: who should make the evidence rules-the judiciary, the legislature, the executive? What role should the practicing bar, law professors and the general public play in the creation of the rules of evidence? What is the proper function of the Federal Rules of Evidence Advisory Committee-to codify case law, to develop rules and amendments to respond to criticism of existing case law, or to develop solutions to evidentiary problems unforeseen by the original drafters? Are there special considerations that apply to evidence law that do not apply at least to the same degree, to other civil or criminal rules of procedure? Part I of this article provides the context for the panel discussion-describing the development of the Federal Rules of Evidence to date and, in the process, revealing the growing contentiousness surrounding the Rules. Part II discusses the issues presented by the panelists as well as the articles by the Professors Rice and Broun.
Federal statutes do not come with instructions, but maybe they should. For as long as there have been statutes, lawyers and laymen have puzzled over their inevitable ambiguities. Gradually, case by case, courts have developed assorted tools of interpretation. Scholars, meanwhile, have conceived esoteric theories of how best to resolve statutory ambiguity. And the doctrine and the scholarship have become elaborate and sophisticated. But the very richness of this intellectual landscape has resulted in unpredictability and confusion. As theories and judges have multiplied, it has become ever more difficult to predict which judge will apply which theory to which case. And after centuries of judicial and scholarly effort, there is still no generally accepted theory of statutory interpretation. The central, unquestioned premise in this field is that the judiciary is the proper branch to design and implement tools of statutory interpretation. Scholars have unreflectively assumed as much, which is why, almost uniformly, they have implicitly aimed their work at the courts. This Article challenges that assumption. It asks whether Congress can and should help select the tools for interpreting federal statutes. The constitutional question turns out to be as important as the answer, because it adds a vital and neglected dimension to the debate about statutory interpretation. To ask whether Congress may codify a particular interpretive method is precisely to ask whether the Constitution requires the method that is to be displaced. This inquiry proves essential in locating statutory interpretation under the constitutional firmament. This Article concludes that Congress has constitutional power to codify some tools of statutory interpretation. Congress has used this power in the past, but only sporadically and unselfconsciously, at the periphery of the United States Code. The power itself is vast, however, and could transform the landscape of statutory interpretation. Because this power has received minimal systematic analysis, there is extraordinary potential for imprudent or unconstitutional overreaching. But used wisely, congressional power to legislate interpretive strategies may improve legislative-judicial communication and thus bring our legal system closer to its democratic ideal. This article therefore advocates codifying certain interpretive tools and techniques. And it suggests that the best form of codification would be as a set of federal rules: the Federal Rules of Statutory Interpretation.
) (character of accused)
- E G See
See, e.g., Fed. R. Evid. 404(a)(1) (character of accused); 404(a)(2) (character of victim);
404(a) ("[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving character in conformity therewith on a particular occasion")
- See R Fed
- Evid
See Fed. R. Evid. 404(a) ("[e]vidence of a person's character or a trait of character is not
admissible for the purpose of proving character in conformity therewith on a particular
occasion").
107 See Act to Promote the Separation of Powers by Suspending Rules of Evidence, Pub. L. No. 93-122
107 See Act to Promote the Separation of Powers by Suspending Rules of Evidence, Pub. L.
No. 93-122, 87 Stat. 9 (1973) (repealed 1988). See supra, text accompanying notes-.
Similar language appears in the corresponding provisions of Rules 414 and 415
- E G See
- R Fed
- Evid
See, e.g., Fed. R. Evid. 413. Similar language appears in the corresponding provisions of
Rules 414 and 415. Fed. R. Evid. 414(a); Fed. R. Evid. 415(a) (making such evidence
"admissible... as provided in Rule 413 and Rule 414 of these rules").