Rules of Evidence

URE 0404. Character evidence not admissible to prove conduct; exceptions; other crimes. Amend. Establishes the conditions for admission of evidence of similar crimes in child molestation cases.

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5 thoughts on “Rules of Evidence
  1. Nelson Abbott

    I’m confused by (c)(7). Rule 404(c) seems to impose several new requirements on the admission of prior acts of child molestation. By its own terms 404(c) applies only to criminal cases in which a party wishes to introduce other acts of child molestation. Previously, the admissibility of this evidence was governed by Rule 404(b).
    Rule 404(c) adds numerous requirements that were not required under Rule 404(b). For example, a hearing must be held outside the presence of the jury, pretrial notice must be given and the court must find by clear and convincing evidence that the prior molestation actually occurred.
    Strangely, (c)(7) then says that the new rule 404(c) does not restrict the admissibility of evidence under the existing rules, including 404(b). Since prior acts of child molestation were sometimes admitted under rule 404(b), this clause creates confusion.
    I would assume that the drafters wanted to make clear that Rule 404(c) applies only to prior acts of child molestation in criminal cases and intended (c)(7) to make that clear. (c)(7) goes further than that. If read literally, (c)(7) states that prior acts of child molestation may be independently admitted under 404(b).
    That is where the confusion comes in. (c)(7) appears to state that 404(c) should be read to create a new avenue for admitting prior acts of child molestation without shutting down the old methods.
    I suggest that (c)(7) be dropped. The first sentence of 404(c) makes it clear that 404(c) does not apply to all evidence but only to prior acts of child molestation in criminal cases. (c)(7) is superfluous.

  2. Timothy Miguel Willardson

    (c)(3)(A) is somewhat nebulous. As written, it is easy to foresee that a judge in a case will take a voluntary plea, made as a result of a plea bargain, as sufficient and irrebuttable evidence. The rule ought to point out that voluntary pleas may be attacked in order to avoid discouraging plea bargains.

  3. Sam McVey

    Regarding the “proximity in time” prong of the test for admission of other instances of child molestation, what is the committee’s intent? Does “proximity” mean recent or remote. Recent crimes may be more probabtive but more prejudicial. Remote crimes may be less probative but less prejudicial. Realizing this test comes from judicial decisions, what exactly is meant by it? Thank you

  4. Professor Paul Cassell

    Dear Rules Committee,
    I believe it would be a mistake adopt the new proposed rule 404(c) when there is another superior alternative available: Utah should adopt Federal Rules of Evidence 413, 414, and 415, which cover some of the same terrain with far clearer language.
    Turning first to the proposed Rule 404(c), the language will lead to considerable litigation, as it is uncerrtain what it means. The rule says that certain evidence of child molestation is admissible if “the evidence is otherwise admissible under these rules and …[additional requirements explained].” The otherwise-admissible language appears to allow a defense attorney objecting to the admission of child molestation evidence to simply rely on other parts of the rules of evidence to exclude such evidence – in particular Rule 404(b). Accordingly, how the rule change would expand the admission of such evidence (the seeming intent of the provision) is not immediately clear. Other interpretation problems are suggested by the comments posted on this website.
    It would be far better if Utah did not try to “reinvent the wheel” on this subject. The Federal Rules of Evidence contain three provisions – Federal Rules of Evidence 413, 414, and 415 – that very specifically address the subject of sex crimes evidence in criminal and civil cases. Adopted more than 10 years ago, these rules have been used in federal courts in a many cases, producing a significant body of caselaw about their interpretation. As a federal judge for more than five years, I can attest to the fact these rules are relatively easy to apply and generate relatively few interpretation problems (because of the extensive available caselaw). Moreover, they have the advantage of covering not merely child molestation crimes (as proposed Rule 404(c) does) but also sexual assault cases and sex crimes evidence in civil cases.
    The Utah Evidence Rule Advisory Committee considered whether to adopt Federal Rules 413 to 415 in around 1997 (I can’t recall the exact date). At that time, the Committee decided not move forward with the federal rules. As I recall, the Committee had concerns about constitutional questions and other similar issues. In light of the fact that there is now more than a decade worth of experience with the federal rules, many of those concerns have now been resolved. Accordingly, it would appear to be time for the Advisory Committee to reevaluate the question. It is worth noting that Utah’s Rules of Evidence typically follow the Federal Rules of Evidence, presumably to avoid generating unnecessary litigation about the meaning of particular provisions.
    I have discussed this issue at great length in my law review article – “Evidence of Repeated Acts of Child Molestation and Rape: The Need to Reform Utah Law to Insure Admissibility,” 1998 Utah L. Rev. 145 (co-author with Evan Strassberg). Contemporaneously with the publication of that article – which criticized the Utah Supreme Court’s restrictive view of admissibility of child molestation evidence in State v. Delporto, 935 P.2d 484 (Utah 1997) – the Utah Rules were amended to abandon the Delporto requirements. See Utah R. Evidence 404(b), Advisory Committee Note. My law review article urged Utah to adopt the federal rules of evidence on this subject. I would be interested in making a presentation to the Advisory Committee regarding this approach, if that would be of interest to the Committee.
    If I can provide any further information, please do not hesitate to call.
    Professor Paul Cassell
    S.J. Quinney College of Law
    University of Utah
    332 South, 1400 E., Room 101
    Salt Lake City, UT 84112
    (801) 581-6833
    (801) 581-6897 (fax)

  5. Paul W. Boyden

    Statewide Association of Prosecutors
    Comment on proposed Rule of Evidence 404(c)
    We are grateful that the issue of propensity evidence in child sexual abuse cases is being addressed in the Utah Rules of Evidence, however we have serious reservations regarding the proposed language of 404(c). We strongly urge the adoption of Federal Rule of Evidence 414 as a better alternative.
    Relatively soon after the adoption of Federal Rule 414 by Congress in 1994 (effective July 9th of 1995) the issue was considered in Utah. The proposed rule is largely a product of that earlier time and reflects the tentative mood of the time in moving toward the admission of propensity evidence. In fact it appears to be a begrudging attempt to give as little leeway as possible in the use of such evidence. We recall that at the time most practitioners including many prosecutors were wary of the rules coming out of Congress which we thought may or may not be constitutional or wise. That was then. Prosecutors are now comfortable with the concept that the law should recognize what everyone else does – that the propensity to sexually abuse children is very probative.
    Several provisions of the proposed rule are problematic:
    Subsection (c)(1) is a minor problem in that it sounds as though the evidence must be found admissible under some other rule before being admitted under this rule. Common sense would dictate that it really means “if not otherwise inadmissible” but it does create immediate and unnecessary argument. Similarly artless language is found in Federal Rule 412(b)(1). It is clear from other comments that this is a source of instant confusion to a reader of the rule.
    Subsection (c)(2) is a perfectly adequate notice requirement.
    Subsection (c)(3) begins an unnecessary and counter productive replacement of a Rule 403 analysis. There is no need for a procedural direction on holding the hearing outside the presence of the jury as that is how all 403 hearings are held. There is absolutely no reason to adopt a “clear and convincing” standard for establishing that the other acts were committed when no such standard is required under Rule 403 for any other type of evidence which might be prejudicial. It is particularly counter productive to place the burden of persuasion on the proponent to show by “clear and convincing evidence” (a fact- finding standard) that “the probative value of the evidence outweighs the danger of unfair prejudice” (a value balancing issue). The same balancing analysis applied by Rule 403 to the purposes allowed under 404(b) -motive, intent etc. – is perfectly adequate to address the same type of evidence for purposes of establishing propensity. I am told that the original committee took some expert testimony to the effect that prior sexual abuse of a child is a strong indicator of the likelihood that the offender will do the same thing again. That sort of policy finding should create a presumption that a prior offense is highly probative, and therefore admissible unless found too prejudicial under a Rule 403 analysis. Nonetheless the draft discards that policy finding and requires the proponent to “prove” not only the offense but that the probity outweighs the prejudice by “clear and convincing evidence”. This is not only an extreme inconsistency, but it renders the rule nearly unusable. One cannot really fault the drafters, as this was a product of the general uneasiness of the times concerning this issue.
    Subsection (c)(4) is an unnecessary cross reference to Rule 105.
    Subsection (c)(5) is the most counter productive of all. The trial court should be free to consider all relevant factors when balancing interests under Rule 403, yet the committee of a decade ago felt it necessary to set up a separate list of criteria. This list is not only unhelpful, it is not based on valid policy considerations. Subsection (c)(5)(A) sets up as the first consideration “proximity in time of the crime charged”. The fact that prior child molestation occurred many years before the crime charged is not mitigating! To the contrary, evidence of sexual activity with children over a protracted period may be an indication that the defendant is an entrenched pedophile. Then again if the evidence is of a offense which took place when the defendant was an adolescent with a victim not too many years his junior, the balance could be tipped the other way even if it is only a short time ago. The circumstances of the individual offense – not its recency – make the difference. None of this will have been aided in the least by the factors listed in Subsection (c)(5). The list will only have added confusion because the judge will have concluded that there must be a close proximity between the act and the charged crime for it to be probative. Please allow Rule 403 to work unobstructed as it has for many years.
    Subsection (c)(6) is a reasonable definition. Federal Rule 414 if adopted will have to be modified slightly to fit Utah law.
    Subsection (c)(7) is a useful addition. Other comments which have criticized it actually demonstrate the need to spell out what should be obvious – that this section (dealing with evidence to show propensity ) does not create additional restrictions on evidence which is admitted under 404(b) to show motive, intent etc..
    Professor Cassell stated that the Federal Rules 413 through 415 “have been used in federal courts … producing a significant body of case law … [they have been] relatively easy to apply and generate relatively few interpretation problems….”
    It is our position that Rule 414 should be reconsidered in light of this decade of experience since the proposed rule was drafted. Although some are urging that 413 through 415 all be adopted, we realize that there is greater urgency to deal with 414 and that it is likely better to deal with the specific issues of 414 at present. Rule 414 can be adapted to Utah law with a minimum of modification and without losing the advantage of the collective interpretive experience with the Federal Rule.
    Paul W. Boyden
    Executive Director
    Statewide Association of Prosecutors