No Presumptive Time Limits Apply to FRE 414 Prior Child Molestation Evidence

In a trial involving aggravated sexual abuse of a minor in Indian country, evidence of the defendant’s prior child molestation convictions, over 20 to 40 years earlier, was admissible under FRE 414 despite the lapse of time between the prior offenses and the current charged conduct because the strong similarity of the incidents made them relevant, in United States v. Benally, 500 F.3d 1085 (10th Cir. Aug. 29, 2007) (No. 06-4173)

In 1994, over vigorous objection from the U.S. Judicial Conference, Congress added three rules dealing with the admission of evidence of prior sexual abuse conduct. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, tit. XXXII, § 320935(a), 108 Stat. 1796, 2136 (1994). These congressionally-designed rules provide an exception to restrictions FRE 404(b) might otherwise impose in sex offense cases concerning the admission of evidence of uncharged sexual offenses. FRE 413 applies in sexual abuse cases, FRE 414 is used in child molestation cases, and FRE 415 authorizes FRE 413 and FRE 414 in civil litigation. The rules became effective on July 9, 1995.

Under FRE 414, in a child molestation case, the trial court may admit evidence that the defendant committed other “offenses” similar to child molestation under state or federal law. The prior molestation evidence is admissible “for its bearing on any matter to which it is relevant.” FRE 414(a). In applying this standard, the courts should exclude evidence when its prejudicial effect exceeds its probative value under FRE 403. See ACN 414. The Tenth Circuit assessed the relevance of the time that passed between the prior molestation conduct and the charged offense. FRE 414 sets no specific time limit on the use of this evidence, unlike FRE 609(b) which sets a ten year limit between a prior conviction and the changed offense. In the Tenth Circuit case, the admission of other sexual assault or molestation evidence that occurred over 20 to 40 years prior to the charged crime was admissible. The case provides a useful example on the operation of this rule.

In the case, defendant Benally was charged with aggravated sexual abuse of a minor under the age of 16 while in Indian Country for trying to rape N.W., his twelve year old granddaughter, by holding a knife to her neck in the process. Prior to trial, the defendant filed a motion in limine to exclude evidence of one prior sexual assault and three child molestation crimes. The trial judge denied the motion and admitted the defendant’s three prior child molestation crimes under FRE 414. The jury convicted the defendant and he appealed contending the evidence did not qualify for admission under FRE 414.

The Tenth Circuit affirmed the conviction, finding no error in admitting the evidence of the defendant’s prior molestation convictions, despite the large gap of over twenty years and forty years between the prior crimes and the tried offense. The circuit reasoned that the modus operandi displayed by the defendant in these prior offenses -- whether sexual assault or child molestation -- was relevant to the currently charged offense because of the significant similarities of the prior and the charged incident.

Although the case involved a charge of sexual abuse, rather than child molestation, FRE 413 and FRE 414 had a significant overlap. As noted by the circuit, because the victim was under 14 years of age, evidence of certain sexual acts that constituted sexual assault would also be considered acts of molestation and thus “certain sexual acts involving a child may be admitted under either Rule 413 or Rule 414.” Benally, 500 F.3d at 1090 n.1 (both FRE 413 and FRE 414 rules allow for the admission of prior sexual acts involving a child); see id. at 1092 n.2 (noting that the prior sexual abuse and child molestation incidents were “four incidents … all substantially similar to one another”).

In Benally, the circuit noted the similarity of the foundational elements for the admission of evidence under FRE 413 and FRE 414. The common threshold requires a showing that (1) the defendant is accused of a crime involving child molestation; (2) the evidence proffered is evidence of the defendant's commission of another offense involving child molestation; and (3) the evidence is relevant. Benally, 500 F.3d at 1090 (citing United States v. McHorse, 179 F.3d 889, 898 (10th Cir.), cert. denied, 528 U.S. 944 (1999)).

The circuit concluded that the trial court correctly applied these foundational factors. The three child molestation convictions were sufficient to establish by a preponderance of the evidence that a jury could reasonably find the other act occurred. In assessing the probative value of the prior convictions, the circuit agreed that prior acts and charged conduct were similar as the victims involved young female family members who were similar in age at the time of the assault and the incidents all involved the use of force. Benally, 500 F.3d at 1091.

For purposes of assessing the probative value of the FRE 414 evidence, the circuit considered a variety of factors, including:

“(1) the similarity of the prior acts and the charged acts, (2) the time lapse between the other acts and the charged acts, (3) the frequency of the prior acts, (4) the occurrence of intervening events, and (5) the need for evidence beyond the defendant's and alleged victim's testimony.”
Benally, 500 F.3d at 1090 (emphasis added) (citing United States v. Guardia, 135 F.3d 1325, 1331 (10th Cir. 1998)). In this connection, the circuit rejected that the evidence was too remote. In fact, the “significant time lapse between the incidents” and the charged offense would not “in itself negate the probative value of testimony about the prior incidents” where they were “highly probative, despite their age.” Benally, 500 F.3d at 1091 (citing United States v. Drewry, 365 F.3d 957, 960 (10th Cir. 2004) (“Sufficient factual similarity can rehabilitate evidence . . . that might otherwise be inadmissible due to staleness.”), vacated on other grounds, 543 U.S. 1103 (2005), and remanded, 133 Fed. App'x 543 (10th Cir. 2005)).

The Benally case is significant for its observations about the application of FRE 414 and FRE 413. In addition, its reiteration that there is “no bright line rule regarding the timing of charged conduct relative to prior acts,” Benally, 500 F.3d at 1092-93, is substantially reflected by numerous other cases. As the following cases demonstrate, the courts have not found FRE 414 or FRE 403 as a bar to admit evidence of the defendant’s prior sexual abuse conduct even if committed many years before the charges:

  • United States v. Gabe, 237 F.3d 954, 959-60 (8th Cir. 2001) (although time lapses raised “reliability issues,” affirming admission of sexual abuse incident some 20 years earlier under FRE 414)
  • United States v. Angle, 234 F.3d 326, 341 (7th Cir. 2000) (admitting evidence or prior 1977 sodomy conviction and 1982 child molestation conviction under FRE 413 and FRE 414)
  • United States v. Meacham, 115 F.3d 1488, 1492 (10th Cir. 1997) (prior child molestation evidence occurring 25-30 years before trial admitted under FRE 414 or FRE 404(b); “Although it appears that the district court admitted the evidence under Rule 404(b), we recognize that it relied upon the congressional findings set forth in the legislative history of Rules 413 and 414 in its Rule 403 balancing and felt that it could not have admitted the evidence without Rule 414 being in place. To the extent that the district court admitted the evidence under Rule 414, we likewise cannot say it abused its discretion. Under Rule 414 the prior acts evidence must still be relevant and followed by a Rule 403 balancing. Both conditions were met and, under the circumstances of this case, the prior acts evidence was not so prejudicial as to violate the defendant’s constitutional right to a fair trial.”)
  • United States v. Larson, 112 F.3d 600, 602, 604-05 (2d Cir. 1997) (timing requirement under Rule 414 is broad, so that sexual assaults 16-20 years earlier were admissible under FRE 414, but rejecting an incident that was over 21-years old as “too remote in time to have any probative value”)

Federal Rules of Evidence