Proposed Evidence Rules 413 to 415 - Some Problems and Recommendations
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SOME PROBLEMS AND RECOMMENDATIONS
James S. Liebman*
Section 320935 of the Violent Crime Control and Law Enforcement Act
of 1994' proposes three new Federal Rules of Evidence-Rules 413-415-that
would liberalize the admissibility of propensity evidence in criminal and civil
cases involving allegations of sexual assault and child molestation.2 This Article
* Professor of Law, Columbia University School of Law. This Article is adapted from comments
submitted to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States
on October 5, 1994, in response to the Committee's request for comments on Proposed Federal Rules of
Evidence 413-415. The comments were submitted on behalf of a group of law professors, including Samuel
R. Gross, Martin Guggenheim, Randy Hertz, Richard Owen Lempert, Gerard E. Lynch. and John W. Reed.
I thank them for their helpful suggestions.
1. Pub. L. No. 103-322, 108 Stat. 1796, 2136-37 (1994).
2. Proposed Rule 413, Evidence of Similar Crimes in Sexual Assault Cases, is as follows:
(a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the
defendant's commission of another offense or offenses of sexual assault is admissible, and may be
considered for its bearing on any matter to which it is relevant.
(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the
Government shall disclose the evidence to the defendant, 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.
(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
(d) [defines offenses of sexual assault].
Id. at 2136. Proposed Rule 414 is the same, except that the words child molestation are substituted for the
words sexual assault. Id. Proposed Rule 415, Evidence of Similar Acts in Civil Cases Concerning Sexual
Assault or Child Molestation, extends to civil cases the same rule of broadened admissibility of evidence of
sexual assault and child molestation. Id. at 2137.
Section 320935 of the Violent Crime Control and Law Enforcement Act of 1994 does not make Rules 413-
415 immediately effective, which explains the description of those rules here as Proposed Rules. Instead,
section 320935(c) requires the Judicial Conference of the United States, within 150 days, to transmit to
Congress a report containing recommendations for amending the Federal Rules of Evidence as they apply to
the admission of evidence of a defendant's prior sexual assault or child molestation crimes in cases involving
sexual assault and child molestation. Id. Section 320935(d) delays the effective date of Rules 413415 for
an additional 150 days to give Congress the opportunity to review the recommendations of the Judicial
Conference. Unless Congress adopts a new statute that either repeals or modifies Proposed Rules 413-415, the
rules become law after the specified time periods have elapsed. Id.
At a meeting on October 17-18, 1994, the Judicial Conference Advisory Committee on Evidence Rules
concluded that the existing Rules of Evidence are adequate to deal with the concerns underlying the new rules
and that the new rules could diminish significantly the protections.., that have safeguarded persons accused
in criminal cases and parties in civil cases against undue prejudice. Letter from Peter G. McCabe to James
S. Liebman (Dec. 2, 1994) (on file with author). Notwithstanding these views, the committee did not believe
... that it was their role to prepare alternative rules that dilute the policies articulated by Congress. Id.
Instead, the committee dmfted alternative amendments to [existing Federal Evidence] Rules 404 and 405 that
would both correct ambiguities and possible constitutional infirmities ... in [Proposed] Rules 413-415 and
remain consistent with Congressional intent. Id. The Committee's substitute would combine Proposed Rules
413-415 into a single subsection (a)(4) of existing FED. R. EVID. 404. Doing so would create a single
additional exception to the longstanding rule (in FED. R. EVID. 404(a)) barring the admissibility of propensity
evidence. The Committee's proposal also would make clear (as Proposed Rules 413-415 do not, see infra note](ViewImageLocal?handle=hein.journals/udlr20&div=39&collection=&method=preview&ext=.png&size=3)
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Proposed Evidence Rules 413 to 415 - Some Problems and Recommendations
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