Thursday, July 31, 2014
Louisiana Purchase: The Louisiana Counterpart to Federal Rule of Evidence 413
Federal Rule of Evidence 413(a) provides 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.
After the enactment of Rule 413 in 1994, the Supreme Court of Louisiana issued two decisions -- State v. McArthur, 719 So.2d 1037 (La. 1998), and State v. Kennedy, 803 So.2d 916 (La. 2001), in which it deemed sexual propensity character evidence inadmissible while noting that the same evidence would have been admissible if Louisiana had its own version of Rule 413. So, how did the Louisiana legislature respond?
It responded by enacting Louisiana Rule of Evidence 412.2, which reads as follows:
Evidence of similar crimes, wrongs, or acts in sex offense cases
A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.
C. This Article shall not be construed to limit the admission or consideration of evidence under any other rule.
And the recent opinion of the Court of Appeal of Louisiana, Third Circuit, in State v. Carmouche, 2014 WL 3734326 (La.App. 3rd 2014) does a good job of explaining some of the specifics of the Rule. In Carmouche, Nathaniel Carmouche allegedly committed aggravated rape and various related crimes against his five year-old daughter.
At trial, Jessica Briley, an adult, testified "regarding an incident in which she alleged Defendant drove next to her as she was walking, initiated a sexually-suggestive conversation, and masturbated in her view." On appeal from his convictions, Carmouche raised two objections to this testimony.
The first was that the State failed to prove that this incident happened by clear and convincing evidence. The court rejected this argument, concluding that the State merely needs to prove incidents by a preponderance of the evidence under Louisiana Rule of Evidence 412.2 and that even the testimony of a single witness, such as Briley, can satisfy this standard.
The second argument was that the probative value of the incident was substantially outweighed by the danger of unfair prejudice/confusing the jury given the dissimilarity between the incident and the crimes charged. The court again disagreed, finding that "a trial court's decision regarding admissibility is subject to a deferential standard of analysis" and that there were in fact similarities between the incident and the crime, including the fact that Carmouche allegedly masturbated "in front of a victim."