Into The Dawn To Montana: Montana Moves Closer To Adopting Sex Crime Character Evidence Rules

On Saturday, Montana moved one step closer to adopting rules of evidence that would allow for the admission of evidence of (1) prior sexual assaults against criminal defendants charged with sexual assault, (2) prior acts of child molestation against criminal defendants charged with child molestation, and (3) prior acts of sexual assault and child molestation against civil parties in actions in which a claim for damages or other relief is predicated on that party's alleged commission of conduct constituting the offense of sexual assault or child molestation. In other words, Montana moved one step closer to adopting state counterparts to Federal Rules of Evidence 413, 414, and 415.

So, what exactly did Montana do? Well, the House passed House Bill 295, which contains these new rules, by an 89-11 vote. The bill will now "have one more reading in the chamber, before moving to the Senate for consideration." The bill was passed after "Rep. Mike Menahan, D-Helena, the bill's sponsor, told his fellow lawmakers Saturday that not allowing past sexual crimes to be entered as evidence leads to 'absurd results' in sex-offender trials. Given the high rates of recidivism associated with sexual offenses, he said, past abuses are especially relevant."

Of course, before Federal Rules of Evidence 413, 414, and 415 were enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, "[t]he overwhelming majority of judges, lawyers, law professors, and legal organizations who responded opposed” the new rules. Similarly, the Advisory Committees on Criminal, Civil, and Evidence Rules were 'unanimous except for a dissenting vote by the representative of the Department of Justice.'" Rosanna Cavallaro, Federal Rules of Evidence 413-415 and the Struggle for Rulemaking Preeminence, 98 J. Crim. L. & Criminology 31, 53 (2007) (I won't list all of the concerns with the Rules here, but one is that the recidivism rate for drug users is much higher than the recidivism rate for sex offenders, and we don't allow evidence of past drug offenses in drug trials).

However, despite this (in my mind justified) criticism, the Rules have withstood multiple constitutional challenges, which is why I don't think that the bill's opponents will find much success with their argument that the bill is "unconstitutional." Indeed, I think that the 2002 opinion of the Supreme Court of Montana in State v. Aakre, 46 P.3d 648 (Mont. 2002), reveals both the impropriety of admitting the evidence covered by House Bill 295 and the futility of a constitutional challenge.

In Aakre, the prosecution tried to introduce evidence of prior sexual assaults by the defendant in his trial for sexual assault, and the court deemed this evidence inadmissible as it argument for admissibility impermissibly "boil[ed] down to one that Aakre is a sexual predator and that Aakre's acts of sexual aggression are dictated by his character and the situation at hand."  In an accompanying footnote, however, the court noted that "[i]f there is to be an automatic exception to Rule 404(b), M.R.Evid., in Montana regarding sex crimes, then it is appropriate for the Legislature to address this issue."  And it appears that this is exactly what Montana is about to do, despite the claims of some (myself included) "that the special rules regarding the admissibility of similar acts evidence in cases of sexual assault are within the sphere of special competence of the judiciary."

-CM