Thursday, November 25, 2010
Federal Rule of Evidence 414(a) provides that
In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.
Rule 413, like its counterparts Rules 414 and 415, was enacted in 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994. The drafters' purpose was to supersede Rule 404(b)'s prohibition on evidence of like conduct showing propensity in sexual assault and child molestation cases. Of course, evidence sought to be admitted under Rule 414(a) is still subject to Federal Rule of Evidence 403, which provides that
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.
But when is evidence of past sexual crimes "unfairly" prejudicial, presenting a problem under Rule 403, and when is it merely "highly" prejudicial? That was the question addressed by the recent opinion of the Second Circuit in United States v. Davis, 2010 WL 4366481 (2nd Cir. 2010). And I would say that the court got it wrong.
In Davis, William Davis was convicted of one count of sexual exploitation of a minor, two counts relating to child pornography, and one count of being a felon in possession of ammunition. At trial, the district court allowed the prosecution to present evidence, pursuant to Federal Rule of Evidence 414(a), of Davis' 1991 conviction for sodomy by forcible compulsion (The conviction was redacted by stipulation to reflect only the fact of conviction upon a guilty plea to a sodomy offense involving a child below the age of 14 and not the fact that the child was Davis' daughter).
After he was convicted, Davis appealed, claiming, inter alia, that the district court should have deemed evidence of the conviction inadmissible under Federal Rule of Evidence 403 because its probative value was substantially outweighed by the danger of unfair prejudice. The Second Circuit disagreed, finding that
We previously considered the interplay between Rules 414 and 403 in United States v. Larson, 112 F.3d 600, 604-05 (2d Cir.1997). We noted that the legislative sponsors of Rule 414 expected that convictions within its ambit would normally be admitted and that their prejudicial value would normally not be outweighed by the risk of prejudice....Although the 1991 conviction in the pending case is 19 years old, the convictions in Larson were between 16 and 20 years old. There can be no doubt that admission of a prior conviction for child molestation carries a high risk of prejudice for any defendant, especially one charged with sexual exploitation of a minor. However, as the Seventh Circuit has observed, such evidence may be "highly prejudicial" but not necessarily "unfairly prejudicial." United States v. Sebolt, 460 F.3d 910, 917 (7th Cir.2006) (emphasis in original)....
The calibration necessary to distinguish "highly" prejudicial from "unfairly" prejudicial will often be difficult to determine. In this case, the District Judge demonstrated his concern for the issue by...encouraging the stipulation that redacted from the record the explosive fact that the victim of the 1991 conviction was the Defendant's daughter. Mindful of the congressional expectations concerning Rule 414, an expectation normally to be honored unless application of the rule would offend the Due Process Clause, we cannot say that the District Court's allowable discretion in the admission of evidence was exceeded in this case.
So, what was the Seventh Circuit's point in Sebolt, and does it apply to Davis? Well, in Sebolt, Philip Sebolt was charged with using his computer to commit various federal crimes involving child pornography. And, at trial, the prosecution presented evidence that he had previously molested a relative. The prosecution presented evidence of this prior act to prove Sebolt's motive for committing the crime charged, and the district court admitted the evidence along with a limiting instruction which told the jury not to use the evidence as propensity character evidence.
After Sebolt was convicted, he appealed, claiming that the district court should have deemed the evidence inadmissible because it was highly prejudicial. According to the court,
Sebolt correctly state[d] that evidence of child molestation is highly prejudicial. However it is not unfairly prejudicial in Sebolt's case. A limiting instruction was given regarding other bad acts evidence, and the government did not overstep its bounds in this regard.
So, how does this apply to Davis? The answer is that it doesn't. Sebolt says that when character evidence is used to prove a permissible purpose under Rule 404(b) and not as propensity character evidence, the evidence is not unfairly prejudicial when a limiting instruction is issued. When, however, character evidence is used under Rule 414 (or Rule 413 or Rule 415), it is used as propensity character evidence. Now, the Second Circuit may be correct "that the legislative sponsors of Rule 414 expected that convictions within its ambit would normally be admitted and that their prejudicial value would normally not be outweighed by the risk of prejudice." That is not to say, though that such evidence lacks the danger of unfair prejudice. It does, which is exactly why it would otherwise be excluded under Rule 404.