Meanness in This World: How Nebraska's Sexual Character Evidence Rule Differs From Its Federal Counterpart

Last fall, I wrote an essay, Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause. The essay argued that the Supreme Court of Nebraska's retroactive application of Nebraska Rule of Evidence 414(1) violated the Ex Post Facto Clause. In today's post, I wil actually say something nice about Nebraska's Rule.

Federal Rule of Evidence 413(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 a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

Similarly, Federal Rule of Evidence 414(a), also 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.

Since the passage of these Rules, at least 11 states have followed suit, including Nebraska. Nebraska's counterpart to these Federal Rules is Nebraska Rule of Evidence 27-414, which states in full that

(1) 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.

(2) In a case in which the prosecution intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the accused, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(3) Before admitting evidence of the accused's commission of another offense or offenses of sexual assault under this section, the court shall conduct a hearing outside the presence of any jury. At the hearing, the rules of evidence shall apply and the court shall apply a section 27-403 balancing and admit the evidence unless the risk of prejudice substantially outweighs the probative value of the evidence. In assessing the balancing, the court may consider any relevant factor such as (a) the probability that the other offense occurred, (b) the proximity in time and intervening circumstances of the other offenses, and (c) the similarity of the other acts to the crime charged.

(4) This section shall not be construed to limit the admission or consideration of evidence under any other section of the Nebraska Evidence Rules.

As the Supreme Court of Nebraska noted in State v. Valverde, 2013 WL 3784265 (Neb. 2013), while Nebraska Rule of Evidence 27-414 is patterned off of Federal Rule of Evidence 413(a) and Federal Rule of Evidence 414(a),

§ 27–414(1) adds a requirement, not included in the federal rule[s], of "clear and convincing evidence otherwise admissible under the Nebraska Evidence Rules that the accused committed the other offense or offenses." The Nebraska statute also explicitly requires a hearing outside the presence of a jury and a balancing under § 27–403.

I think that both of these are positive developments. If evidence that a defendant charged with sexual crimes has committed prior sexual crimes, it will be especially difficult for the jury to acquit. And, under Federal Rule of Evidence 413(a) and Federal Rule of Evidence 414(a), federal judges are all too willing to admit weak allegations of prior sexual crimes by defendants. By way of contrast, the Nebraska rule seems to ensure that the court will carefully balance the interests of the State and the victim against the interests of the defendant in determining whether to admit evidence of alleged prior sexual crimes. 

-CM