EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, April 30, 2011

Texas Two-Step: Will Texas Pass State Counterparts To Federal Rules Of Evidence 413-414?

Federal Rule of Evidence 404(b) provides in relevant part that 

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.

Enacted in the 1994 to increase the likelihood of sexual offense convictions, Federal Rules of Evidence 413-414 remove this propensity character evidence proscription for sex offenders and allow bad act evidence to prove, "Once a sex offender, always a sex offender."

Despite the objections of academic commentators, several states--including California-- followed suit. More states are considering similar exceptions; for instance, Alaska and California have also created similar exceptions for cases of domestic violence. Ted Sampsell-Jones, Preventive Detention, Character Evidence, and the New Criminal Law, 2010 Utah L. Rev. 723, 731-32 (2010).

In all, eleven states have enacted state counterparts to Federal Rules of Evidence 413-414 (I'm not sure how many states have enacted counterparts to Federal Rules of Evidence 415, which applies in civil cases) Could Texas make it a dozen?

Apparently, Texas state senator Joan Huffman has introduced Senate Bill 152, which according to Huffman,

has been carefully crafted to both protect the constitutional rights of defendants and to serve the public's interest in prosecuting those accused of committing the most heinous crimes against some of our most vulnerable victims. The proposed legislation is modeled after Federal Rules of Evidence (FRE) 413 and 414. Both were adopted by Congress and signed by President Clinton in the bipartisan Violent Crime Control and Law Enforcement Act of 1994. Eleven other states have enacted similar legislation, including California. Multiple federal appellate courts, including the 5th Circuit Federal Court of Appeals, have specifically and consistently held that FRE 413 and 414 and the state statutes modeled after them are constitutional and do not violate the Due Process Clause or the Equal Protection Clause. Thus, contrary to critics' complaints, the Constitution has not been shredded after all.

So, will the bill be successful? I don't know. Back in November 2008, I posted an entry about the Vermont Senate Judiciary Committee removing an attempt to create state counterparts to Federal Rules of Evidence 413-415 from a sex offender plan. Then, in February 2009, I posted an entry about Montana coming close to enacting counterparts to Federal Rules of Evidence 413-415, but that effort ultimately failed. And, in May 2010, I noted that the Supreme Court of Iowa found that Iowa Code Section 701.11, Iowa's counterpart to Federal Rules of Evidence 413, violated due process. Will Texas buck this trend? Or will Senate Bill 152 fail? If I had to read the tea leaves, I would guess that the bill would  pass, but it really seems like a crap shoot.



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