NCJ Number
223360
Journal
Journal of Criminal Law and Criminology Volume: 98 Issue: 1 Dated: Fall 2007 Pages: 31-70
Date Published
2007
Length
40 pages
Annotation
This article explores a hypothetical situation involving the amendment of the Federal Rules of Evidence to impose a rule of categorical admissibility for propensity and other evidence in any matter to which it was relevant.
Abstract
This article presents the supposition that, in response to a growing public perception that homicides were too frequently going unpunished, and that rules of evidence unreasonably insulated juries from the graphic horror of the crime of murder, Congress passed a statute that amended the Federal Rules of Evidence. For discussion, “Rule 416” was provided as follows: “autopsy photos--any photograph of the body of a victim of an alleged homicide, including any photograph taken during a medical examination, shall be admissible on any matter to which it is relevant.” This hypothetical was posed, the author asserted because Federal trial and appellate courts' implementation of the rules relating to evidence of similar crimes in sexual assault and child molestation cases has produced precisely these surprising outcomes. This article also considered whether a rule of judicial discretion, such as depicted in Federal Rule of Evidence 403, was the proper vehicle for reasserting judicial preeminence in an interbranch power struggle as described. The article contends that having demonstrated that the special rules regarding the admissibility of similar acts of evidence in cases of sexual assault are within the sphere of special competence of the judiciary, as recognized by Congress in the Rules Enabling Act, the corollary conclusion follows that admissibility of such evidence ought properly to be constrained by a robust application of Rule 403. Rule 403 provides that "although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." 153 notes