Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause

Sometimes a blog post runs a bit long. In the case of State v. Kibbee, 815 N.W.2d 872 (Neb. 2012), what initially started as a blog post turned into an essay. This blog post will outline my basic arguments against the decision in Kibbee, and I will post the link to my essay on SSRN later this week. Any thoughts and comments on either would be appreciated either here or e-mailed to [email protected]:

In State v. Kibbee, 815 N.W.2d 872 (Neb. 2012), Eddie Kibbee brought an Ex Post Facto Clause challenge to his convictions for first-degree sexual assault and felony child abuse. Article I, section 9 of the United States Constitution states in relevant part that “[n]o Bill of Attainder or ex post facto Law shall be passed,” and, in its opinion in Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with this Ex Post Facto Clause:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Kibbee's claim was that the trial court erred by retroactively applying Nebraska Rule of Evidence 414(1), which provides that

In a criminal case in which the accused is accused of an offense of sexual assault, evidence of the accused's commission of another offense or offenses of sexual assault is admissible if there is clear and convincing evidence otherwise admissible under the Nebraska Evidence Rules that the accused committed the other offense or offenses. If admissible, such evidence may be considered for its bearing on any matter to which it is relevant.

Nebraska Rule of Evidence 414(1) is thus similar to Federal Rules of Evidence 413 and 414, which allow for the admission of prior acts of sexual assault and child molestation by criminal defendants. Kibbee claimed that Rule 414(1) was clearly a law that alters the legal rules of evidence, meaning that it was the fourth type of law that cannot be applied retroactively consistent with the Ex Post Facto Clause. So, why, like every defendant before him in a similar case, did he lose?

In Carmell v. Texas, a defendant appealed his convictions for various sexual crimes, claiming that Texas dispensed with its corroboration requirement after his alleged crimes but before his trial and then wrongfully applied applied this new rule at his trial. The Supreme Court agreed, finding that the corroboration requirement was the fourth Calder v. Bull category.

In reaching this conclusion, however, the Court indicated in a footnote that "[o]rdinary rules of evidence…do not violate the Clause."  Instead, "[r]ules of that nature are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in a given case."  Moreover and "[m]ore crucially, such rules, by simply permitting evidence to be permitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption."

So, the question thus becomes whether Federal Rules of Evidence 413 and 414 and state counterparts are "[o]rdinary rules of evidence" in these two regards. And the clear answer is "no."

First, Federal Rules of Evidence 413 and 414 and state counterparts are not "evenhanded, in the sense that they may benefit either the State or the defendant in a given case." Instead, they solely benefit the prosecution. And, indeed, because of the Rape Shield Rule contained in Federal Rule of Evidence 412, a defendant normally cannot respond to evidence of his prior sexual acts with evidence of the victim's prior sexual acts. Thus, viewed in context or in isolation, these Rules (and Rule 415 in civil cases) are extraordinary in precisely the way that triggers Ex Post Facto Clause scrutiny (a point partially recognized by the dissent in Carmell).

Second, Federal Rules of Evidence 413 and 414 and state counterparts do subvert the presumption of innocence. It is well recognized by courts that the propensity character evidence proscription is in place to maintain the presumption of innocence so that the baseline assumption by jurors is not, "once a robber, always a robber" or "once a rapist, always a rapist." As the Third Circuit cautioned in Government of the Virgin Islands v. Toto, 529 F.2d 278, 283 (3^rd Cir. 1976), when evidence of a defendant’s prior crimes reaches the jury, "it is most difficult, if not impossible, to assume continued integrity of the presumption of innocence” because “[a] drop of ink cannot be removed from a glass of milk."

Moreover, these Rules do concern whether the admissible evidence is sufficient to overcome the presumption of innocence. Recall that Nebraska Rule of Evidence 414(1) allows for the admission of evidence of prior sex crimes "for its bearing on any matter to which it is relevant." Assume that Nebraska never adopted Nebraska Rule of Evidence 414(1). After Kibbee was convicted, he could have claimed on appeal that his convictions were against the weight of the evidence, and he might have won. Maybe there was insufficient evidence of mens rea. Maybe there was insufficient evidence of actus reus. Maybe there was insufficient evidence of some other elements of the crime charged.

But now consider the operation of Nebraska Rule of Evidence 414(1). Evidence of Kibbee's prior sex crime was admissible "for its bearing on any matter to which it is relevant." Was that prior crime relevant to the mens rea of the crimes charged? The actus reus? Any other element. According to courts, which have been relcutant to apply Rule 403 to these new sexual propensity character evidence rules. Thus, in a very real sense, these rules do subvert the presumption of innocence and do concern whether the admissible evidence is sufficient to overcome the presumption of innocence.

Finally, these results are the goal of these Rules and not merely their result. When Congress enacted them outside the normal rulemaking process (another way in which these Rules are not "ordinary), it did so because it was dissatisfied with the conviction rates in sexual assault and child molestation cases, with the Rules being an artificial attempt to increase them. Therefore, these Federal Rules are the fourth type of rule envisioned in Calder, and they cannot be applied retroactively consistent with the Ex Post Facto Clause.

-CM