EvidenceProf Blog

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

Thursday, August 18, 2011

Same Sex: 8th Circuit Uses Same Logic To Uphold Rule 414 As It Used To Uphold Rule 413 Against Constitutional Attack

Federal Rule of Evidence 414(a), enacted by Congress as part of the Violent Crime Control and Law Enforcement Act of 1994, provides in relevant part 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.

In its opinion in United States v. Mound, 149 F.3d 799 (8th Cir. 1998), the Eight Circuit found that Federal Rule of Evidence 413(a), which allows for the admission of evidence of prior sexual assaults by defendants charged with sexual assault, to be constitutional. And, in its recent opinion in United States v. Coutentos, 2011 WL 3477190 (8th Cir. 2011), the Eighth Circuit reached the same conclusion with regard to Rule 414(a).

In Coutentos, a jury found Jimmie Coutentos guilty of one count of sexual exploitation or attempted sexual exploitation of a minor to produce child pornography and one count of possession or attempted possession of child pornography. After he was convicted, Coutentos appealed, claiming, inter alia, that the district court erred by allowing the alleged victim's older sister to testify regarding acts of child molestation that Coutentos, her grandfather, allegedly committed agains her. According to Coutentos, Federal Rule of Evidence 414(a) "is unconstitutional because it violates Fifth Amendment due process rights."

According to the Eight Circuit, "[t]o determine whether [Rule 414] fails 'the due process test of fundamental fairness,' we consider whether 'the introduction of this type of evidence is so extremely unfair that its admission violates fundamental conceptions of justice.'" The Eighth Circuit then noted that while it had not previously resolved this issue, (1) "Other circuits have rejected similar facial attacks on the constitutionality of Rule 414 in light of the fact that Rule 414 is subject to the constraints of Rule 403;" and (2) "In Mound, we upheld the constitutionality of Rule 413, stating that we believed 'that it was within Congress's power to create exceptions to the longstanding practice of excluding prior-bad-acts evidence.'" Accordingly, the court used the same reasoning that it used in Mound to "conclude that Rule 414 does not violate the Due Process Clause."



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