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Tuesday, March 18, 2014

"Reverse" 413-414 Evidence and the Limits of Accusing Alternate Suspects

At EvidenceProf Blog, Colin Miller discusses the case, United States v. Thunder, (8th Cir. 2014 WL 944752), and some interesting questions the case raises. In Thunder, the defendant was convicted of sexual assault. At trial, the defendant had attempted to introduce evidence that another person, Speker, had committed the assault and sought to introduce evidence of Speker's prior conviction for sexual abuse.

The trial court did not permit evidence of the alternate suspect's prior conviction, noting that the evidence would be unduly prejudicial under Federal Rule of Evidence 403 and would likely cause confusion to the jury. The Eighth Circuit affirmed this ruling, noting that there was no evidence that the alternate suspect had been near the victim when she was attacked.

Miller asks the broader question about whether the Federal Rules of Evidence permit evidence of a third party's prior sexual assault or abuse convictions:

My second question relates to Federal Rule of Evidence 414(a) and Federal Rule of Evidence 413(a), which covers prior acts of sexual assault. These rules generally allow the prosecutor to present evidence of any prior sex crimes committed by a criminal defendant to prove any relevant purpose, subject only to a very lenient Rule 403 analysis. 
The Speker evidence didn't satisfy Rule 403, but what if it did? For instance, what if the defendant did have evidence that Speker was alone with the victim? Techinically, Federal Rule of Evidence 414(a) only allows for the admission of evidence against a defendant. And while courts do allow defendants to use Federal Rule of Evidence 404(b) to prove the motive, intent, etc. of an alternate suspect (reverse 404(b) evidence), a defendant generally cannot present evidence of the general criminal propensities of alternate suspects. So, for instance, a defendant would be precluded from presenting evidence of an alternate suspect's prior rape conviction to prove "once a rapist, always a rapist." 
But should a suspect be able to introduce "reverse" 413/414 evidence to prove just such a thing? Is that what fairness requires?
I agree with Miller that the text of the rules does not support the introduction of "reverse" 413-414 evidence. Not only do rules 413 and 414 refer only to admission of evidence against the defendant, but Rule 404's broader prohibition on the use of propensity evidence refers to generic "persons" and is not limited to preventing evidence of the defendant's prior crimes or bad acts.

But whether allowing evidence of prior crimes by alternate suspects is a good policy is a far more complicated question.

One could argue in favor of disallowing prior sexual crime evidence by third parties on the grounds that exceptions to the general prohibition on propensity evidence should be narrowly construed. The prohibition on evidence that parties have a propensity to commit crimes or bad acts is a fundamental bar on evidence and should only be abandoned in narrow circumstances.

Furthermore, Rule 413-414 evidence is not restricted to evidence of prior convictions -- the rules permit evidence that the defendant "committed" a similar crime. Permitting reverse 413-414 evidence would allow evidence of allegations that a third party convicted sexual crimes in the past even if that third party was never convicted. While this evidence would still need to meet Rule 403's requirement that the evidence not be unduly prejudicial or misleading, allowing reverse 413-414 evidence could permit admission of a wide scope of allegations that could do significant damage to third parties' reputations.

On the other hand, Rules 413-414 are notable exceptions to the broad prohibition on propensity evidence, and critics of the rules argue that allowing evidence of prior sex crime evidence is unfair to defendants. But this perspective might support a permissive approach of prior sex crime evidence that third parties have committed. Allowing defendants to introduce this type of evidence to implicate third parties would give the defendant an additional tool to raise doubt in cases against them.

Reverse 413-414 evidence is not supported by the text of the rules and may harm the reputations of third parties. But for those courts or critics that worry that evidence of prior crimes renders defendants' trials unfair, allowing defendants to use similar evidence to implicate other suspects may mitigate these fairness concerns.

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