William & Mary Bill of Rights Journal


This note presents a Due Process analysis of Federal Rules of Evidence 413 and 414. These rules, which took effect in July 1995, overturn the exclusionary requirements of Rule 404 exclusively in cases involving sexual assault and child molestation. The new rules allow similar crimes to serve as evidence for purposes other than those stated in Rule 404(b). Now, federal prosecutors may offer evidence of a defendant's prior uncharged sexual misconduct to demonstrate that the defendant committed the sex offense for which he currently is being charged. Rules 413 and 414 reevaluate the historic concern that evidence of prior acts is inherently unfair because such evidence may allow judges and juries to make inferences of guilt based not only on the evidence of the specific crime with which the defendant is charged but on his past misdeeds as well.

After a discussion of the scope and effects of Rules 413 and 414, this Note argues that such use of "propensity evidence" violates the Due Process Clause because it is "fundamentally unfair." The rules, it is maintained, increase the risk of jury misdecision by allowing extremely prejudicial evidence to be heard, arguably even without first being scrutinized under the Rule 403 balancing test. This Note concludes that the new rules must either be abolished or, at the very least, amended so that the prosecution is required to show that the probative value substantially outweighs the prejudicial effect of the sexual propensity evidence.

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