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

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Thursday, January 9, 2014

Another State: New Law Would Expends Nebraska's Rules on Sexual Propensity Character Evidence

As I wrote in my essay, Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause, Nebraska recently enacted state counterparts to Federal Rules of Evidence 413-415. These Rules reverse the traditional presumption that propensity character evidence is inadmissible and allow for the admission of prior acts of sexual assault and child molestation in cases involving alleged sexual misconduct. Since the passage of Federal Rules of Evidence 413-415, at least eleven states has enacted state counterpart. But there are apparently differences among these state counterparts, which is made clear by legislation currently pending in Nebraska.

Current Nebraska law states that

For purposes of sections 27-414 and 27-415, offense of sexual assault means sexual assault under section 28-319 or 28-320, sexual assault of a child under section 28-319.01 or 28-320.01, sexual assault by use of an electronic communication device under section 28-320.02, sexual 4.D.3 abuse of an inmate or parolee under sections 28-322.01 to 28-322.03, and sexual abuse of a protected individual under section 28-322.04.

In other words, an act is only a "sexual assault" for purposes of Nebraska's sexual propensity character rules if it qualifies as a sexual assault under Nebraska law. Therefore, it's not good enough that an act might qualify as a "sexual assault" under some other state's law. What it also possibly means is that only prior acts in the state of Nebraska potentially qualify as "sexual assaults" for purposes of Nebraska's sexual propensity character rules.

This has led to proposed legislation sponsored by Senator Danielle Conrad of Lincoln:

"This legislation makes improvements in our laws to help victims of sexual assault and stalking," said Senator Conrad. "We must work to prevent and eliminate these brutal crimes. Yet, when they do occur we must improve our legal framework so that justice can prevail."

The legislation clarifies the definition of prior sexual assault, which allows the evidentiary use of out-of-state offenses in subsequent proceedings. The Federal Rules of Evidence and at least five states allow for the use of similar prior out-of-state sexual offenses for evidentiary purposes.

Currently, use of prior sexual assault offenses as evidence in subsequent proceedings is defined narrowly to include Nebraska offenses.   

-CM

http://lawprofessors.typepad.com/evidenceprof/2014/01/as-i-wrote-in-my-essay-bullshit-why-the-retroactive-application-of-federal-rules-of-evidence-413-414-and-state-counterpart.html

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Comments

It strikes me, probably wrongly, that these rules of evidence violate the 14A. It difficult for me to see how singling out sex offenders for special treatment in this regard offers them equal protection under the law.

My complaint isn't the the rules of evidence are expanding the role of propensity character evidence but that this expansion is doing so in a selective way. I do not see how it is possible to have one set of rules from shoplifters and another set of rules for sex offenders and say with a straight face that they are being treated equally. I admit, however, that this is just a first blush reaction so I'm not wedded to the proposition.

Posted by: Daniel | Jan 9, 2014 7:19:47 PM

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