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Univ. of South Carolina School of Law

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Friday, October 12, 2007

Article Of Interest: Professor Rosanna Cavallaro Looks At The Interplay Between Rule 403 and Rules 413-415

Pursuant to Federal Rule of Evidence 404 and most state counterparts, character evidence is generally inadmissible to prove that a person has a propensity to act in a certain manner and that he/she acted in conformity with that propensity at the time in question.  Thus, for instance, the prosecution could not offer evidence that a defendant on trial for murder brutally attacked people on two prior occasions to prove that the defendant had a propensity for being violent and acted in conformity with that violent propensity on the night of the murder.

The major exceptions to this Rule are contained in Federal Rules of Evidence 413-415, which allow for evidence of a defendant's past sexual assaults and child molestation to prove that the defendant did, in fact, commit the sexual assault or child molestation with which he is currently charged.  These Rules were enatced as part of the Violent Crime Control and Law Enforcement Act of 1994, despite the overwhelming majority of lawyers, judges, legal organizations, and law professors opposing the laws when it was submitted for public comments.

Since then, the vast majority of scholars and commentators writing about the Rules have viciously attacked the Rules, claiming that they are based upon improper legal and sociological foundations.  While such arguments are theoretically interesting, it does not appear that the Rules will be rescinded, leaving the question of when someone will write about what judges should do now that these Rules are in place.

Professor Rosanna Cavallaro's forthcoming article "Federal Rules of Evidence 413-415 and the Struggle for Rulemaking Preeminence," does an admirable job of filling that void.  According to Cavallaro, since the adoption of Rules 413-415, judges have essentially found that evidence offered pursuant to 413-415 has a "presumption of probativeness," making it extremely unlikely that such evidence will be excluded pursuant to Federal Rule of Evidence 403, which allows judges to exclude relevant evidence if its probative value is substantially outweighed by factors such as the danger of unfair prejudice.  As Cavallaro notes, such judicial deference to Congress makes sense only if Congress acted within its scope of expertise in drafting Rules 413-415.

On the other hand, if Rules 413-415 in effect rescinded properly delegated judicial authority to promulgate rules of procedure, judges should engage in a robust application of Rule 403 when a party seeks to admit evidence under Rules 413-415.  Cavallaro finds that Congress engaged in such improper activity in enacting Rules 413-415 based upon a separation of powers analysis contrasting the nature of the propensity ban (fundamentally adjudicatory) with  other evidence rules (like the ban on subsequent remedial measures), which have a more legislative, policy-weighing character.  Thus, judges should not be staying their hands.

In response to an e-mail asking about what led her to write the article, Cavallaro wrote me that she "was frankly very  surprised that courts have not viewed the rules as an encroachment into their domain, but have instead passively imposed them with minimal judicial scrutiny, while reciting that the legislative intent is that this kind of evidence be generally admissible.  This flies in the face of recent Supreme Court reaffirmations of the general ban on propensity evidence (Old Chief, e.g.), and ignores the act of transubstantiation that  made the remarks of the DOJ's spokesman, David Karp, into the legislative history of the rule.  As I am frequently observing about other political matters these days, where's the outrage?  Why have courts not seen this as a battle in the ongoing war over preeminince in rulemaking?"

I agree with Professor Cavallaro, think that the outrage expressed in her article is exactly what is needed now, and hope that judges will read the article and reclaim their territory. 

-CM

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