Friday, March 14, 2014
Reversal of Fortune: Should Suspects be Able to Introduce Reverse 413/414 Evidence?
Federal Rule of Evidence 412 states in relevant part:
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence....
(c) Procedure to Determine Admissibility.
(1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:
(A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered;
(B) do so at least 14 days before trial unless the court, for good cause, sets a different time;
(C) serve the motion on all parties; and
(D) notify the victim or, when appropriate, the victim’s guardian or representative.
Meanwhile, Federal Rule of Evidence 413(a) provides that
In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.
In United States v. Thunder, 2014 WL 944752 (8th Cir. 2014), the defendant was charged with sexual abuse of a minor and sexual abuse of a person incapable of consenting. At trial, the defendant sought to introduce the prior sexual abuse conviction of an alleged alternate suspect, but the district court deemed the evidence inadmissible under Rule 412(c)(1). This prompts two questions: (1) Why did the Eighth Circuit mention Rule 412; and (2) Is there such a thing as reverse Rule 413/414 evidence?
Let's start with the Eighth Circuit's ruling. The court found that there was no evidence that the alternate suspect == Kelly Speker -- was alone with the victim such that he could have committed the crime charged. Therefore, the court found that deemed the evidence inadmissible under Federal Rule of Evidence 403. The court then added, however, that
Rule 412 also would bar the admission of this evidence. When a party seeks to offer evidence that “someone other than the defendant was the source of semen, injury, or other physical evidence,” the party is required to file a motion describing the proposed evidence at least fourteen days before trial and to notify the victim of the proposed evidence. Fed.R.Evid. 412(c)(1). Here, Brown Thunder neglected to file a Rule 412 motion and failed to notify H.C. or her guardian or representative of the proposed Speker evidence.
Here's what I don't understand: As far as I can tell, Speker's prior conviction was not for a crime against the victim. Rule 412 only covers the victim's sexual predisposition or other sexual behavior. Speker's prior conviction had nothing to do with either of these. So, why was Rule 412 referenced at all?
My second question relates to Federal Rule of Evidence 414(a) and Federal Rule of Evidence 413(a), which covers prior acts of sexual assault. These rules generally allow the prosecutor to present evidence of any prior sex crimes committed by a criminal defendant to prove any relevant purpose, subject only to a very lenient Rule 403 analysis.
The Speker evidence didn't satisfy Rule 403, but what if it did? For instance, what if the defendant did have evidence that Speker was alone with the victim? Techinically, Federal Rule of Evidence 414(a) only allows for the admission of evidence against a defendant. And while courts do allow defendants to use Federal Rule of Evidence 404(b) to prove the motive, intent, etc. of an alternate suspect (reverse 404(b) evidence), a defendant generally cannot present evidence of the general criminal propensities of alternate suspects. So, for instance, a defendant would be precluded from presenting evidence of an alternate suspect's prior rape conviction to prove "once a rapist, always a rapist."
But should a suspect be able to introduce "reverse" 413/414 evidence to prove just such a thing? Is that what fairness requires?