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Ninth Circuit: Law Permitting Evidence of Sexual Assault Propensity Survives Scrutiny
Opinion Says Code Section Allowing Admission in Sexual Assault Cases Is Constitutional
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held Friday that a federal evidence code section permitting the admission of prior acts in sexual assault cases does not violate the Due Process Clause of the Fifth Amendment, finding that the fact that the evidence will be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion, or delay provides sufficient guardrails to protect the rights of the accused.
At issue is Federal Rule of Evidence §413 which provides that “[i]n a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault.”
Rule 403, in turn, gives a court discretion to “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Finding guidance in the 2001 Ninth Circuit decision in U.S. v. Lemay which held that a sister statute permitting the admission of evidence of past acts in child molestation cases does not violate due process principles, the court said “[t]he logic of Lemay extends to Rule 413.”
Yosemite Attack
Challenging his judgment of conviction based on the admission of testimony by a former girlfriend was Charles Porter, who was found guilty by a jury of committing multiple sexual assault crimes relating to his attack on a fellow employee at Yosemite National Park in April 2020.
According to the victim, identified as T.D., both men worked and lived in staff housing at the park. On the night of the incident, Porter entered T.D.’s cabin while heavily intoxicated and tried to rape him.
During the trial, and over Porter’s objection, District Court Judge Jennifer L. Thurston of the Eastern District of California allowed the testimony of the defendant’s ex-girlfriend, A.H., who testified that the convict had repeatedly forced himself on her.
Before allowing the testimony, Thurston analyzed the evidence under Rule 403 and found that “the acts of sexual assault about which A.H. would testify are substantially similar to those alleged by victim T.D,” involving “parallel accusations of strangulation, biting,” and other assaultive acts, making the evidence “highly relevant” and not unduly prejudicial.
Following the trial, Thurston sentenced Porter to 12 years and four months in prison.
Circuit Judge Daniel A. Bress wrote the opinion affirming the judgment. Circuit Judge Lawrence VanDyke and Senior Circuit Judge Marsha S. Berzon joined in the opinion.
Usual Rule
Bress acknowledged that “[t]he usual rule is that a criminal defendant’s prior crimes or bad acts cannot be admitted to show he had the propensity to commit the charged offense” but said that “[i]n 1994, Congress enacted exceptions…for sexual assault and child molestation offenses in Federal Rules of Evidence 413, 414, and 415.”
Rule 414 allows the introduction of prior acts of child molestation in criminal cases in which a defendant is accused of that offense and the provisions of Rules 413 and 414 are extended to civil cases in Rule 415.
Porter argued on appeal that Rule 413 violates the Due Process Clause because allowing evidence of criminal propensity is fundamentally unfair, creating an unacceptable risk that defendants will be convicted based on predisposition rather than the charged offense.
At oral argument, Porter’s attorney, Benjamin P. Lechman was questioned by VanDyke, who mentioned the Lemay decision and inquired as to whether the three-judge panel was bound to be guided by it. Lechman responded by pointing out that no published Ninth Circuit opinion has addressed Rule 413, as opposed to Rule 414, and cited U.S. Supreme Court and Ninth Circuit jurisprudence disfavoring propensity evidence.
Lechman argued that there is “some data-driven basis to believe that propensity may be different in child cases” and, in those cases, “you are talking about a class of alleged vitims who don’t potentially have a voice.”
Unpersuaded, Bress said in yesterday opinion that “[o]ur reasoning in Lemay applies with equal force to Rule 413 and controls this case.”
Lemay Decision
Turning to the Lemay opinion, authored by then-Circuit Judge Stephen S. Trott (now on senior status), Bress wrote:
“Lemay…conducted ‘an independent inquiry into whether allowing propensity inferences violates fundamental ideas of fairness.’….On this score, we held that ‘as long as the protections of Rule 403 remain in place so that district judges retain the authority to exclude potentially devastating evidence, Rule 414 is constitutional.’….With the guardrails of Rule 403, ‘there is nothing fundamentally unfair about the allowance of propensity evidence under Rule 414.’ ”
He continued:
“The logic of Lemay extends to Rule 413. Although Porter posits potential differences between child molestation and sexual assault offenses, those differences are insufficiently material. And they are ultimately irrelevant under Lemay given the protections of Rule 403. Indeed, in upholding Rule 414, Lemay relied on other circuits that applied ‘nearly identical reasoning’ in the case of Rule 413….When district courts retain discretion to exclude unduly prejudicial propensity evidence under Rule 403, Rule 413 is constitutional.”
The jurist remarked that although “[w]e understand the objections to Rule 413,…when the rule does not contravene due process, it is not our role to refashion it.” He declared:
“[W]e emphasize that Rule 413, like Rule 414, ‘is not a blank check entitling the government to introduce whatever evidence it wishes.’….District courts should carefully apply Rule 403 in these circumstances….As we explain in our accompanying memorandum disposition, the district court here conscientiously evaluated these factors and did not abuse its discretion in allowing A.H.’s testimony subject to an appropriate limiting instruction.”
The case is U.S. v. Porter, 22-10286.
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