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Univ. of South Carolina School of Law

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Friday, October 28, 2011

One Mississippi: Court Of Appeals Of Mississippi Applies Ridiculous Exception To Rule 404(b) In Child Molestation Case

Like its federal counterpartMississippi Rule of Evidence 404(b) provides that

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In other words, under Rule 404(b), evidence of past rapes by a defendant charged with rape would be inadmissible to prove, "Once a rapist, always a rapist." And evidence of past acts of child molestation would be inadmissible tor prove, "Once a child molester." That said, Federal Rule of Evidence 413 and Federal Rule of Evidence 414, passed as part of the Violent Crime Control and Law Enforcement Act of 1994, do allow for the admission of evidence of past rapes and acts of child molestation to prove propensity and conformity. Mississippi does not, however, have counterparts to Rules 413 and 414? So why do Mississippi courts routinely allow for the admission of evidence of past rapes and acts of child molestation by defendants? Let's check out the recent opinion of the Court of Appeals of Mississippi inYoung v. State, 2011 WL 5027251 (Miss.App. 2011).

In Young, Johnny R. Young Jr. was convicted of three counts of sexual battery of a minor based upon acts that he allegedly committed against his eight-year-old daughter, "Cindy." At trial,

Anna Smith, Young's half-sister, presented testimony that twenty years ago, when Young was fifteen years old and Anna was five years old, Young had Anna take off her pants, removed his pants, and bounced her on his leg, rubbing his penis against her. Anna's mother, who was also Young's step-mother, walked in and witnessed this event. Young was sent to Meridian, Mississippi, for several months to receive mental-health treatment

After he was convicted, Young appealed, claiming, inter alia,

that the admission of this evidence was error, especially as it "was too remote in time and different from the events alleged by [Cindy]," and that the State "failed to establish the alternate basis for the admissibility of the evidence."

The Court of Appeals of Mississippi, however, noted that while such evidence would ordinarily be inadmissible under Mississippi Rule of Evidence 404(b), the Supreme Court of Mississippi carved out an exception to this Rule in Derouen v. State, 994 So.2d 748 (Miss. 2008), in cases that involve the sexual assault of a minor, stating:

Sex crimes against children are furtive, secret events usually lacking evidence other than the conflicting testimony of the defendant and the victim. The only viable proof of motive, intent, plan, knowledge, identity or absence of mistake or accident may be the pattern of abuse suffered by others at the hands of the defendant.

In an accompanying footnote, the Court of Appeals noted that

The Derouen court also stated that it was "time for this Court to consider amending the Mississippi Rules of Evidence by way of the adoption of rules modeled after Federal Rule of Evidence 413 and 414" and referred the issue to the Rules Committee "for study and recommendation to the en banc court." 

My conclusion: Maybe it's time that Mississippi actually adopts counterparts to these Rules rather than operating under the ridiculous pretense that evidence of prior rapes/child molestation is actually admissible for a permissible purpose under Rule 404(b). According to the Court of Appeals, the admission of Anna Smith's testimony was permissible because the trial court gave the jury the following instruction:

The testimony of the [S]tate's witness, [Anna Smith], which is not part of charged conduct in this case, is to be used for the purpose of establishing motive, intent, plan, knowledge, identify, or absence of mistake or accident on the part of the defendant JOHNNIE R. YOUNG and should not be considered as proof of the defendant's character or to show that he acted in conformity therewith.

This instruction is laughable because obviously Smith's testimony was admitted to prove, "Once a child molester." I certainly wasn't admissible to prove that Young had knowledge, i.e., knew how to commit child molestation. It wasn't admissible to prove common plan or scheme because a 20 year-old act of sexual abuse against a younger sister and a recent act of child molestation against a daughter are not at all similar. You can tick off each of the listed purposes in Rule 404(b) and realize that none of them make sense in the context of Young's case. The way I see it, Derouen is similarly nonsensical and should be overruled by the Supreme Court of Mississippi.

-CM

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