EvidenceProf Blog

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

Wednesday, October 22, 2014

Show Me: Proposed Missouri Constitutional Amendment Would Allow For Admission of Child Molestation Evidence

Federal Rule of Evidence 414(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.

I'm not 100% sure whether my numbers are up to date, but when I posted this entry in 2011, eleven states had counterparts to Rule 414(a). Will Missouri become #12?

According to an article in the Kansas City Star,

Missouri voters are being asked to approve a change in the state constitution that would grant prosecutors wider latitude in presenting evidence in child sex cases.  

Constitutional Amendment 2, if passed, would allow prosecutors to present evidence of past criminal acts in trials of defendants accused of committing sex-related crimes against victims younger than 18.  

That additional evidence could include both charged and uncharged prior acts. 

In other words, the Amendment would create a counterpart to Federal Rule of Evidence 414(a). Interestingly, the article notes that Missouri twice before passed legislation allowing for the admission of such evidence, but, each time, the Supreme Court of Missouri found the legislation unconstitutional. Obviously, that wouldn't be an issue with a Constitutional Amendment.

What might be less obvious is the fact that some arguments made on behalf of the Amendment are...questionable. First the article notes that "[t]he amendment would...limit the use of such prior acts’ evidence "to support the victim’s testimony or show that the person charged is more likely to commit the crime.'" 

That's technically true, but it's only true because such prior acts' evidence is already admissible to prove other purposes. For instance, if a defenant's prior acts of child molestation evinced a common plan or scheme/m.o., those acts would currently be admissible. It is only the use of such acts to prove a general propensity to molest children that is currently inadmissible.

Second, the article notes that

Platte County Prosecuting Attorney Eric Zahnd said Missouri is now among the most restrictive states in the country when it comes to presenting such evidence. The amendment would establish for Missouri the same rules of evidence now allowed in federal courts, he said.  

"We’re the outliers when it comes to this kind of evidence," Zahnd said. "It gives us a fighting chance."

Again, this argument is correct to the extent that such evidence is allowed in federal courts, but child molestation cases are rarely prosecuted in federal court. Instead, child molestation cases are usually litigated in state court, and, as I noted above, about 39 states do not have a counterpart to Federal Rule of Evidence 414(a). Moreover, I see no evidence that Missouri is among the most restrictive states when it comes to presenting evidence of other acts of child molestation. Instead, I think Missouri law is consistent with the law of the vast majority of other states.



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