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Bar Journal - September 1, 2000

AN EXAMINATION OF FEDERAL RULES OF EVIDENCE 413, 414, AND 415 AND THE ADOPTION OF THESE RULES BY THE STATES

By:

INTRODUCTION

In State v. Montgomery,1 the New Hampshire Supreme Court overturned the conviction of the defendant for child molestation, holding that the trial court impermissibly allowed evidence of the defendantís uncharged prior bad acts to be used by the State in its case-in-chief. The use of such evidence in sexual misconduct cases has traditionally been barred to prove that a defendant committed the charged offense. The new Federal Rules of Evidence 413, 414, and 415 allow evidence of past uncharged sexual misconduct to be used in any relevant way, including to prove that the defendant has a propensity to commit the charged sexual assault crime. The rules were enacted by the United States Congress to serve as an example for state legislatures, but only five states have thus far enacted similar evidence rules. This article will attempt to examine how the new evidence rules have been interpreted by the federal courts and present the arguments for and against the adoption of similar rules by the states.

I. EXAMINATION OF STATE V. MONTGOMERY

The defendant was convicted on twelve counts of felonious sexual assault and eight counts of aggravated felonious sexual assault against his eldest daughter, who was under the age of thirteen at the time of the incidents.2† The trial court allowed testimony from the defendantís two daughters describing incidents of uncharged sexual assaults occurring over a ten-year period. The State offered this evidence of prior uncharged acts to buttress the credibility of the two victims in anticipation of a defense attack on the victimís inability to recall details about the specific charged acts. The trial court allowed this testimony on direct examination under N.H. Rule of Evidence 404(b). The New Hampshire Supreme Court ruled that such evidence presented for credibility reasons can only be allowed if the defense first attacks the credibility of the witnesses on cross-examination. Because the court could not find that the admission of this evidence was harmless error, the court reversed the conviction and remanded the case to the trial court.

II. EXAMINATION OF FEDERAL RULES OF EVIDENCE 413, 414, AND 415

The new evidence rules were included in the Violent Crime Control and Law Enforcement Act of 1994 in order to strengthen the tools of prosecutors in sexual assault and child molestation cases.3 These rules were enacted in part as a reaction to the traditional challenges presented in rape and molestation cases where the only evidence is often the testimony of the victim.4 Rule 413 allows evidence of any past sexual misconduct that the defendant may have committed for any relevant purpose, including the purpose of showing that the defendant has a propensity to commit such acts.5 Rule 414 allows past sexual misconduct evidence for the prosecution of child molestation cases.6 Rule 415 allows the same types of evidence for civil cases involving sexual assault or child molestation.7 These rules represent a departure from the historical prohibition against propensity evidence.8†

A. History of Sexual Predisposition Evidence in New Hampshire

In 1996, the New Hampshire legislature attempted to follow the lead of the federal legislature when it proposed a similar rule regarding evidence of prior sexual misconduct in rape and child molestation cases. Under proposed RSA 632-A:6, such evidence would only be excluded if the trial court found that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice (essentially a New Hampshire Rule of Evidence 403 analysis).9 Before enacting the proposed rule, the legislature asked the New Hampshire Supreme Court for an advisory opinion on whether creating such a rule would represent an impermissible violation of Article 37 of the New Hampshire Constitution.10 The court reasoned that the courts were the proper authority for the establishment of purely procedural court rules and ruled that the enactment of such a law would be an impermissible violation of the separation of powers mandate dictated by Article 37.11 The court did not discuss whether such an extension of the admissibility of prior sexual misconduct evidence was desirable or not.

B. Criticisms of Federal Rules of Evidence 413, 414 and 415

Historically, the use of propensity or character evidence in trials has been excluded because practical experience has shown us that such evidence can cause confusion, unfair surprise and undue prejudice.12 The typical fear is that all such evidence is inherently unfairly prejudicial and unreliable.13 It is a standard in our justice system that a defendant should be tried for the charged crime and not for any inference that he or she is a bad person as suggested by particular character evidence.14 The adoption of the new evidence rules is a departure from the long-standing prohibition against propensity evidence.15

The new rules allow evidence of past misconduct for "any matter to which it is relevant."16 This means that such evidence may be used to show that the defendant has a propensity to commit crimes similar to the one he is presently charged with and that, therefore, it is more likely that he did, in fact, commit the charged crime. In short, these rules admit character evidence. As is frequently the issue with character evidence, the fear is that juries will convict a defendant not because the evidence proves, beyond a reasonable doubt, that he committed the charged crime but because the jury finds the defendant to be a "bad" person.17 This concern is especially relevant in prosecutions for sexual assault crimes where jury emotions may already weigh heavily against defendants.18 Another concern with this type of evidence is its irrelevance.19 Since there is no conclusive scientific proof that there is a single thievery character trait or a violent-assault character trait, evidence of past crimes or misconduct is seen as irrelevant to reach the issue of whether or not a defendant committed the particular charged crime. The actual scientific evidence about whether past sexual misconduct can accurately predict future sexual misconduct is contradictory at best.20

The history behind this general prohibition against character evidence is so strong that any rule that is introduced that challenges it is bound to be met with opposition. The new rules were opposed by most legal professionals and scholars when they were introduced.21 The Judicial Conference, which is composed of federal judges from around the country, opposed the rules. They recommended instead that additions be made to the existing evidence rules 404 and 405.22 Congress ignored this recommendation and the new rules became effective on July 9, 1995.

C. Support for the Rules

Obviously, not all legal scholars and professionals opposed the rules. Congresswoman Susan Molinari and Senator Robert Dole proposed the rules first as part of the Womenís Equal Opportunity Act and later reintroduced them as part of the Violent Crime Act of 1994.23 The two major reasons presented in support of the adoption of the rules have to do with the nature of the crimes to which they apply. In rape cases, the only witness is often the victim. Unlike other crimes, the defense is often consent. Evidence that the defendant has committed other sexual assaults can be critical in assessing the relative plausibility of the competing claims.24 This could be an especially compelling reason in light of evidence that suggests that people tend to believe men more than women when it comes to issues of credibility.25

The other reason in support of Rule 414 is that evidence of similar past conduct seems especially probative in child molestation cases. A history of child sexual abuse suggests that the person has an unusual disposition that is not a part of normal sexuality.26 Studies tell us that many child molesters were themselves molested as children.27 The scientific evidence also tells us that recidivism rates for convicted child molesters are high, despite strong evidence that suggests that sexual assaults are significantly under-reported and that conviction rates particularly low.28 For example, according to an analysis of victimization surveys, rape and sexual assaults are only reported approximately one-third of the time.29 Despite this under-reporting, studies suggest that the recidivism rates for sexual assault crimes are similar to those of other violent crimes.30

Also in support of the use of these tools is the horrific nature of the crimes involved. Conservative estimates are that three percent of males and eighteen percent of females will be sexually assaulted during their lifetimes.31 The damage that these crimes create in the lives of victims is profound. For example, one study of the impact of childhood sexual assaults found that forty percent of the seven to thirteen year-old victims were seriously disturbed according to standardized psychopathological measures.32 Because many child molesters were themselves molested as children, it can be said to be a self-perpetuating crime. Even more disturbing is the number of lives that a single perpetrator can disrupt. One study found that while the official number of charged sexual offenses per offender was against 1.8 rape victims, the rapists self-reported an average of 11.7 victims per offender.33

III. HOW COURTS HAVE DEALT WITH THE RULES

The emotionally compelling evidence behind the adoption of the rules may have resulted in unfair rules that interfere with a defendantís right to a fair trial. Only a few federal court opinions have interpreted the new rules, but this is hardly surprising because rape and child molestation charges are usually brought under state criminal laws. In dealing with the new rules, courts have examined whether the rules violate constitutional due process or equal protection rights.

In United States v. Meacham, the United States Court of Appeals for the Tenth Circuit held that, despite some arguments to the contrary, a Rule 403 analysis was applicable to Rule 413.34 In reaching this decision, the court looked at legislative intent and also at the historical rule that all evidence is subject to a Rule 403 analysis absent express language to the contrary.35 Rule 403 dictates that a court can use its discretion to exclude evidence "if its probative value is substantially outweighed by the danger of unfair prejudice..."36 The court also looked at the Congressional Record and determined that although Rule 413 creates a presumption of admissibility for past sexual misconduct evidence, it was not created to displace other evidence rules such as Rule 403 or the hearsay rules.37

The same court followed Congressí reasoning to find that Rule 413 was not unconstitutional on its face.38 Because Rule 403 is applicable, the court argued that the rule did not fail a "fundamental fairness" test which would be necessary to prove a due process violation.39 Because the exclusion of prior bad character evidence was not found to be a fundamental right, the court also rejected the defendantís equal protection claim, ruling that Rule 413 was subject only to a rational basis test.40 The court also noted that even though the practice of excluding character evidence might be ancient, that does not mean that the exclusion is embodied in the constitution.

In United States v. Guardia, the court ruled that the Rule 403 analysis applied to Rule 413 is the same analysis applied to evidence allowed in under other rules, despite the presumption of admissibility, and that this analysis can be used to bar evidence of past sexual misconduct.41 Among the factors to be considered when applying a Rule 403 analysis in a sexual assault context are: 1) how clearly the prior act has been proven; 2) how probative the evidence is of the material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4) whether the government can avail itself of any less prejudicial evidence.42 When analyzing the probative dangers of such evidence, a court should consider: 1) how likely it is that such evidence will contribute to an improperly-based jury verdict; 2) the extent to which such evidence will distract the jury from the central issues of the trial; and 3) how time consuming it will be to prove the prior conduct.43

In United States v. Castillo, the Tenth Circuit found that Rule 414 was also not unconstitutional.44 The court attempted to definitively answer the question of whether the traditional ban on character evidence was derived solely from the rules of evidence or whether it was a right that could also be found in the United States Constitution.45 In following the precedent of its prior decisions and ruling that Rule 414 was not unconstitutional, the court did a three-pronged analysis. First, it looked to the historical practice of the exclusion of character evidence and found that, although the ban had a long history, it was hardly an unambiguous one, especially for sexual misconduct propensity evidence.46 The court pointed to the fact that states had created common law exceptions for the admission of sexual propensity evidence. The second prong as examined by the court involved looking at the other evidence rules. The court found that other rules allowed in such evidence as Rule 404(b), albeit in a more limited nature.47 In applying the third prong of the test, the court examined how the procedural protections afforded by Rules 402 and 403 prevented Rule 414 from violating any notion of fundamental fairness.48

IV. STATE TREATMENT OF SEXUAL PROPENSITY EVIDENCE

As the court noted in Castillo, various states have developed common law exceptions to the ban on character evidence for sexual propensity evidence. Although the exceptions are not as sweeping in the admittance of prior acts as the new rules are, they have been used as an important tool in the prosecution of sexual assault cases. Many of these exceptions were developed years before the federal rules were enacted.

A. Common Law Exceptions

In State v. Toole, the Rhode Island Supreme Court, in upholding the conviction of the defendant on three counts of first degree sexual assault and two counts of first degree sexual assault by force and coercion, recognized a long-standing exception to the exclusion against prior similar acts to show "lustful disposition or sexual propensity."49 In a case similar to Montgomery, the defendant appealed his conviction arguing that the testimony of his daughter, the alleged victim, included evidence of remote, uncharged instances of sexual assault by the defendant. The court rejected this argument, pointing to a tradition of allowing evidence of non-remote sexual crimes involving the same victim to show the defendantís lewd disposition towards that victim. The court also pointed out that, in very limited circumstances, evidence that a defendant had committed non-remote, similar sexual crimes against other victims might also be admissible. The court warned, however, that all such evidence should be received only with "great caution" and that the trial justice should take it upon herself to offer a limiting instruction to the jury regardless of whether or not the defendant asks for one.50

In State v. Edward, the high court of West Virginia upheld the conviction of the defendant on two counts of first degree sexual assault and one count of first degree abuse against his son and one count of first degree abuse against his daughter.51 The trial court allowed evidence of such uncharged collateral acts to be admitted, including when the defendant allegedly watched pornography and masturbated in front of his son, which occurred during the same period the charged offenses allegedly occurred.52 The reviewing court held that such evidence was not inadmissible because the courts had developed an exception to the general ban against character evidence when such evidence showed a lascivious intent on the part of the defendant towards the victim.53 The court also pointed to the admissibility of past acts when they were necessary to provide context to the charged crime.54 Where the uncharged acts are so linked together in time and circumstances with the charged act that one cannot be fully shown without the other, the "context" exception applies.55

The development of such common law exceptions was the tradition from which the federal rules sprang. In fact, one of the rationales behind the adoption of the rules was a fear that more states would drop such exceptions as those states formally adopted the Federal Rules of Evidence.56

B. States that Have Adopted Federal Rules of Evidence 413, 414 or 415

Because most sexual assault cases are brought under state laws, it is obvious that Congress adopted the new rules to serve as an example to state legislatures and courts. At this point, only five states have followed the federal example: Alaska, Arizona, California, Indiana, and Missouri. The highest courts of two of these states, however, have invalidated the new rules adopted by their state legislatures in much the same way that the New Hampshire Supreme Court invalidated the proposed RSA 632-A:6.

In 1994, the legislature of Missouri enacted section 566.025 of the Missouri code that allowed evidence that a defendant committed similar crimes against victims under fourteen in child molestation cases provided that the prior incidents occurred within ten years of the uncharged crime.57 In State v. Burns, the Missouri Supreme Court reversed the conviction of the defendant for statutory sodomy because the trial court allowed evidence of prior sexual assaults allegedly committed by the defendant under section 566.025.58 The court reasoned that section 566.025 violated sections 17 and 18(a) of Article 1 of the Missouri Constitution that guarantee a criminal defendant the right to be tried only on the charged offense.59 Because section 566.025 mandated that qualified evidence "shall be admissible" and was, therefore, not subject to a probative versus prejudicial analysis, the court found that the section forced a defendant to defend against uncharged offenses in violation of the state constitution.60 The section is still in the Missouri code but considering the fact that it has been found to be unconstitutional, it will likely be repealed.61

Prior to the adoption of the federal rules, Indiana had developed a common-law exception to the no character evidence rule to show a "depraved sexual instinct."62† In 1992, the Indiana Supreme Court abolished the exception, deciding that the negatives of such an exception outweighed its positive uses.63 In 1994, the Indiana legislature enacted a rule that makes past similar acts evidence admissible in prosecutions for child molestation or incest.64

The future of this statutory exception, however, is in doubt. The Indiana appellate court in Day v. State noted that because the exception directly contradicts the supreme courtís abolition of such evidence, the statute is a nullity.65 The Indiana Supreme Court has yet to overrule this interpretation of the appellate court.

The states of Alaska, Arizona, and California still have rules, similar to Federal Rules of Evidence 413, 414 and 415, that allow prior sexual misconduct evidence to be used to show a predisposition to commit the charged crime. Alaska, in 1998, amended Rule 404(b) to allow for the use of such evidence.66 Rule 404(b)(2) allows evidence of other acts by a defendant toward the same or different child if the evidence is not precluded by another evidence rule and 1) the act occurred within 10 years of the charged offense, 2) the act(s) are similar to the charged offense, and 3) the victim(s) were similar to the present prosecuting witness.67 Rule 404(b)(3) allows evidence of other sexual assaults or attempts in rape cases if the defense is one of consent.68 Though these rules are not as broad as the federal rules, they both seek to admit similar types of evidence.

In Arizona, the legislature added another section to the standard Rule 404 to allow for the admittance of character evidence in sexual misconduct cases.69 Rule 404(c) provides that in all criminal cases where the charged crime is a sexual offense, and in similar civil cases, evidence of other crimes, wrongs, or acts may be admitted by the court if they are relevant to show the defendant had an aberrant sexual character trait. The Arizona rule, unlike the federal rules, specifically requires a trial court to make certain findings before evidence of past sexual misconduct will be admitted.70 The rule also states three conditions which the court must find present before the evidence will be admitted: 1) the evidence must be sufficient to permit the trier of fact to find that the defendant committed the other act; 2) the act must provide a reasonable basis to infer that defendant had a character trait that gives rise to an aberrant sexual propensity to commit the charged crime; and 3) the evidence must pass a Rule 403 analysis.71

The rule also specifically lists some of the factors that are to be examined in the Rule 403 analysis. The rule lists: the remoteness of the other act, the similarity or dissimilarity of the other act, the strength of the evidence that the defendant committed the other act, frequency of other acts, surrounding circumstances, relevant intervening events, and other similarities or differences. The rule provides that whenever such evidence is used, the court will make the proper limiting instruction. The rule also states the procedural requirements about notice that are necessary for the use of such evidence in criminal trials.

The California Code allows character evidence to be admitted in sexual offense criminal cases so long as the evidence passes the California equivalent of a Rule 403 analysis (Cal. Evid. Code ß 352).72 The section also provides the notice procedure for the use of such evidence by the state against the accused, much like the federal rules. In addition, the section specifically defines the meaning of "sexual offense" and the meaning of the word "consent" within the definition of sexual offense.

Although all the state rules differ slightly from the federal rules, all allow evidence of past sexual misconduct to be used against an accused in a criminal trial for sexual offenses. The major differences include the extent of the exception (Alaska, for example, only allows past misconduct to be introduced in rape cases where the defense is consent), the formal rules that must be observed, and types of analysis that must be done before the evidence will be admitted.

C. Hypothetical Application to State v. Montgomery

New Hampshire has not recognized a common law exception to the ban on character evidence for past sexual misconduct. It also seems unlikely, considering the New Hampshire Supreme Courtís ruling in State v. Montgomery and other recent cases dealing with sexual assault crimes, that the court will adopt the new federal rules anytime soon.73 If the new rules were applied to Montgomery, there can be little doubt that the evidence of the uncharged acts that led to the reversal would be admitted.

Had the new rules been in force in New Hampshire, the prosecution would have been allowed to present the uncharged sexual misconduct evidence without having to justify its admissibility under Rule 404(b) as rehabilitating the victimís credibility. The court in Montgomery stated that the evidence would have been permissible if the defense had first attacked the credibility of the witnesses in cross-examination. But under the new rules, this same evidence could have been admitted during the Stateís case-in-chief provided the trial court found that the evidence passed a Rule 403 analysis.

In all the jurisdictions where the courts have interpreted the new rules, all have found that Rule 403 is still applicable. By examining how other courts have analyzed such evidence under Rule 403, it seems reasonable to assume that the evidence would be found to be more probative than unfairly prejudicial and would, therefore, be admissible.74 The uncharged acts are virtually identical to the charged acts, they allegedly occurred contemporaneously with the charged acts, and they were committed against the same or a very similar victim. The only problem might be that the trial court would find the charged and uncharged acts to be so similar that a jury would likely be confused if the evidence were admitted. Although the new rules create a presumption that past sexual misconduct evidence is admissible, a trial court would still have the discretion to bar the evidence under Rule 403.

CONCLUSION

The new rules were enacted to allow evidence of past sexual misconduct in sexual molestation and rape cases as well as civil cases predicated on these offenses. The rules were added to the Federal Rules of Evidence to encourage the states to add similar rules to their own evidence codes. Only five states have thus far followed this example, but in two of those states, the courts have invalidated the rules.

Both state and federal courts have found that a Rule 403 analysis is necessary before any evidence can be admitted under the rules. In looking at whether the proposed evidence should be admitted, courts perform a Rule 403 analysis that examines, among other things, the remoteness of the other acts, the similarity or dissimilarity of the other acts to the charged acts, the evidence that a defendant actually committed the other acts, and other surrounding circumstances. Some states that have not adopted the new rules, or a version of them, have nevertheless developed common law exceptions to the traditional bar to character evidence for sex crimes. These exceptions function in a similar way to the codified rules.

The federal courts have found that the rules are not facially unconstitutional under either the Due Process or Equal Protection Clauses of the United States Constitution. The courts have reasoned that because of the past use of exceptions to the general character evidence ban in sexual crime cases, the new evidence cannot be said to violate "fundamental fairness." Courts have further reasoned that because the ban on character evidence is not a fundamental right, the state and federal government could enact such evidence rules if they serve some rational purpose.

Whether the use of these rules will extend to further jurisdictions is an open question. Also questionable is whether these rules are inherently unfair to defendants or if they are simply an effective and necessary tool for prosecutors to use in cases that are historically difficult to try.

ENDNOTES

1. State v. Montgomery, _ N.H. _, 740 A.2d 625 (1999).
2. Id.
3. 140 Cong. Rec. H8991-92 (daily ed. Aug. 21, 1994).
4. Id.
5. Fed. R. Evid. 413 (1999), full text as follows:
† (a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendantís 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 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) For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under Federal law or the law of a state (as defined in section 513 of title 18, United States Code) that involved-
† (1) any conduct proscribed by chapter 109A of title 18, United States Code;
† (2) contact, without consent, between any part of the defendantís body or an object and the genitals or anus of another person;
† (3) contact, without consent, between the genitals or anus of the defendant and any part of another personís body;
† (4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or
† (5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).
6. Fed. R. Evid. 414 (1999), full text as follows:
† (a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendantís commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on 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 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) For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and the "offense of child molestation" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved-
† (1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child;
† (2) any conduct proscribed by chapter 110 of title 18, United States Code;
† (3) contact between any part of the defendantís body or an object and the genitals or anus of a child;
† (4) contact between the genitals or anus of the defendant and any part of the body of a child;
† (5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or
†(6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5).
7. Fed. R. Evid. 415 (1999), full text as follows:
†(a) In a civil case in which a claim for damages or other relief is predicated on a partyís alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that partyís commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.
†(b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, 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.
8. Fed. R. Evid. 404(a).
9. Opinion of the Justices, 141 N.H. 562 (1997).
10. Id. at 564.
11. Id.
12. Michelson v. United States, 335 U.S. 469 (1948).
13. Id.
14. Id.
15. See Robert F. Thompson, Character Evidence and Sex Crimes in the Federal Courts: Recent Developments, 21 U. Ark. Little Rock L. Rev. 241 (1999).
16. Fed. R. Evid. 413, 414 and 415.
17. See Sherry L. Scott, Fairness to the Victim: FRE 413 and 414 Admit Propensity Evidence in Sexual Offender Trials, 35 Hous. L. Rev. 1729 (1999).
18. See Adam Kargman, Note, Three Maelstroms and One Tweak: Federal Rules of Evidence 413 to 415 and Their Arizona Counterpart, 41 Ariz.L.Rev. 963 (1999)(describing studies that show that sexual misconduct evidence is highly emotional to juries and may entice them to convict defendants where there is insufficient evidence that a crime occurred).
19. Id.
20. Joseph A. Aluise, Note, Evidence of Prior Sexual Misconduct in Sexual Assault and Child Molestation Proceedings: Did Congress Err in Passing Federal Rules of Evidence 413, 414, and 415?, 14 J.L. & Pol. 153 (1998) (presents an excellent examination of current sociological data concerning sexual assault offenders and victims).
21. Thompson, supra note 15.
22. Id.
23. 140 Cong. Rec. S12990-01 (daily ed. Sept. 20, 1994) (statement of Sen. Dole).
24. Id.

25. See Debra Sherman Tedeschi, Federal Rule of Evidence 413: Redistributing "the Credibility Quotient," 57 U. Pitt. L. Rev. 107, 124-25 (1995).
26. 140 Cong. Rec. S12990-01 (daily ed. Sept. 20,1994) (statement of Sen. Dole).
27. Scott, supra note 17.
28. Id.
29. Bureau of Justice Statistics, U.S. Dept. of Justice, Pub.No. NCJ-163392, Sex Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault (Feb. 1997) (available on the internet at http//www.ojp.usdoj.gov/bjs/).
30. Aluise, supra note 20, at 183.
31. Sourcebook of Criminal Justice Statistics, U.S. Dept. of Justice, Pub.No. NCJ-172837, Estimated Percentage of Persons Raped or Physically Assaulted During Lifetime (1998) (available on the internet at http//www.albany.edu/sourcebook/).
32. See Arthur J. Lurigio et al., Child Sexual Abuse: Its Causes, Consequences and Implications for Probation Practice, 59 Fed. Probation 69 (1995).
33. Aluise, supra note 20, at 183.
34. United States v. Meacham, 115 F.3d 1488 (10th Cir. 1997).
35. Id.
36. Fed. R. Evid. 403.
37. Meachum, 115 F.3d at 1488.
38. United States v. Enjady, 134 F.3d 1427 (10th Cir. 1998).
39. Id.
40. Id.
41. United States v. Guardia, 135 F.3d 1326 (10th Cir. 1998) (upholding trial courtís refusal to admit evidence under Rule 413 after evidence failed the courtís 403 analysis).
42. Enjady, 134 F.3d at 1433.
43. Id.
44. United States v. Castillo, 140 F.3d 874 (10th Cir. 1998).
45. Id.
46. Id. at 881-882.
47. Id.
48. Id.
49. State v. Toole, 640 A.2d 965 (R. I. 1994).
50. Id.
51. State v. Edward, 398 S.E.2d 123 (W. Va.1990).
52. Id. at 128-130.
53. Id. at 131.
54. Id.
55. Id.
56. See generally, Lisa M. Segal, Note, The Admissibility of Uncharged Misconduct Evidence in Sex Offense Cases: New Federal Rules of Evidence Codify the Lustful Disposition Exception, 29 Suffolk U. L. Rev. 515 (1995).
57. Mo. Rev. Stat. ß 566.025 (1999).
58. State v. Burns, 978 S.W. 759 (Mo. 1998).
59. Id.

60. Id.
61. Mo. Rev. Stat. ß 566.025.
62. Scott, supra note 17, at 1768.
63. Lannan v. State, 600 N.E.2d 1334 (Ind.1992).
64. Ind. Code Ann. ß 35-37-4-15 (1999).
65. Day v. State, 643 N.E.2d 1, 3 (Ind. 1994).
66. Alaska R. Evid. 404(c) (1999).
67. Alaska R. Evid. 404(b)(2) (1999).
68. Alaska R. Evid. 404(b)(3) (1999).
69. Ariz. R. Evid. 404(c) (2000).
70. Id.
71. Ariz. R. Evid. 404(c)(1) (2000).
72. Cal. Evid. Code ? 1108 (1999).
73. See State v. Glodgett, No.98-221, 2000 NH Lexis 10 (March 16, 2000) (following the reasoning of Montgomery in overturning the conviction of defendant where evidence of past sexual misconduct was held improperly admitted by the trial court); see also State v. Marti, 140 N.H. 692 (1996) (a case similar to Montgomery, overturning defendantís conviction for sexual assault because the trial court improperly admitted evidence of past uncharged sexual assaults allegedly perpetrated by the defendant).
74. N.H. R. Evid. 403 (1999) (this rule is identical to its federal counterpart).

The Author
Danielle Matton, Class of 2001,
Franklin Pierce Law Center,
Concord, New Hampshire.

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