Rules of Evidence

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.

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

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