Growing Consensus On Relation Of FRE 403 To FRE 414

In trial of a child exploitation enterprise (CEE) and related offenses, Eleventh Circuit joins four other circuits in concluding that evidence admitted under FRE 414(a) (Similar Crimes in Child-Molestation Cases) “must satisfy” FRE 403, so that the defendant's confession regarding his failure to resist his attraction to young children and that he had molested his two-year old daughter nine years earlier was admissible under FRE 414 since it satisfied FRE 403 in providing a “necessary context to the plethora of evidence introduced against” the defendant while making the prosecution's case “not only ... ‘believable but also understandable,’” in United States v. McGarity, 669 F.3d 1218, __ (11th Cir. Feb. 6, 2012) (No. 09-12070)

Ever since the promulgation of FRE 414 by Congress as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322 (September 13, 1994), the close interrelationship of FRE 414 making certain child molestation propensity evidence admissible and FRE 403 governing exclusion of relevant evidence has been a matter of attention. As described by one of the sponsors of the bill, Representative Susan Molinari, "the general standards of the rules of evidence will continue to apply" to FRE 414 evidence and that this included "the restrictions on hearsay evidence and the court's authority under Evidence Rule 403 to exclude evidence whose probative value is substantially outweighed by its prejudicial effect." See Cong. Record H8991-92 (Aug. 21, 1994)- Floor Statement, Representative Susan Molinari, Concerning the Prior Crimes Evidence Rules for Sexual Assault and Child Molestation Cases. Nearly twenty years later, circuit application of the rule is beginning to flesh out. A recent case from the Eleventh Circuit provides the latest demonstration of how the circuits are beginning to collease in viewing the application of FRE 414 as subject to the balance articulated by FRE 403 of probative value with unfair prejudice.

In the case, as a result of monitoring of Internet traffic, law enforcement had uncovered a ring of web users who uploaded over 400,000 images which "portrayed child pornography, many depicted the sexual abuse of minors in graphic and grotesque detail." The defendant was arrested as part of that ring and tried as convicted. He appealed to the Eleventh Circuit, challenging the trial court's application of FRE 414 to admit into evidence a statement he had previously made that admitted to an intent and a history of child molestation. McGarity, 669 F.3d at __ .

The Eleventh Circuit found no error in admission of the defendant's incriminating statement. While the statement seemed much in the way of propensity evidence and excludable as unfairly prejudicial under FRE 403, the circuit concluded it was admissible because FRE 414 provides "a specific exception for “child molestation” cases. The circuit noted that other circuits had determined that FRE 414 provided a specific exception for evidence such as that objected to by the defendant. According to the Eleventh Circuit, "we have not previously determined, in a published decision, whether such [FRE 414] evidence must satisfy Rule 403," but it recognized that "other circuits had.McGarity, 669 F.3d at __ .

The Eleventh Circuit noted four other circuits with published opinions endorsing the idea. The Eleventh circuit then joined in finding that "evidence admitted under Rule 414(a) must satisfy Rule 403." McGarity, 669 F.3d at __ (note 32). The other circuits cited by the Eleventh as maintaining such an interpretation of the rule included:

Fourth Circuit: United States v. Kelly, 510 F.3d 433, 437 n.3 (4th Cir. 2007) ("[E]vidence admitted under Rule 414 is subject to Rule 403's balancing test. Thus, even if a prior conviction qualifies for admission under Rule 414, evidence of that conviction may nonetheless “be excluded if its probative value is substantially outweighed by the danger of unfair prejudice” to the defendant" under FRE 403)
Seventh Circuit: United States v. Hawpetoss, 478 F.3d 820, 824 (7th Cir. 2007) (Noting that a "five factor approach [used in the Ninth Circuit to considering admission of FRE 414 evidence] finds its roots in the particular considerations employed by the Tenth Circuit in United States v. Guardia ... to determine whether evidence otherwise admissible under Rule 414 survives the “microscope” of Rule 403.")(citations omitted)
Ninth Circuit: United States v. LeMay, 260 F.3d 1018, 1026-27 (9th Cir. 2001) ("The judge also reserved the Rule 403 decision until after the prosecution had introduced all its other evidence, in order to get a feel for the evidence as it developed at trial before ruling on whether LeMay's prior acts of child molestation could come in." )
Tenth Circuit: United States v. Castillo, 140 F.3d 874, 882-83 (10th Cir. 1998) ("[T]he Rule 403 balancing test applies to evidence admitted under Rule 414. Rule 403 excludes evidence, even if it is logically relevant, if its prejudicial effect substantially outweighs its probative value. Because of the presence of these protections, only a very narrow question remains—whether admission of Rule 414 evidence that is both relevant under 402 and not overly prejudicial under 403 may still be said to violate the defendant's due process right to a fundamentally fair trial. To ask the question is to answer it.) (citation omitted)

Having joined with four other circuits in explicitly tying application of FRE 414 to FRE 403, the circuit concluded the defendant's statement was admissible: "McGarity's written confession could be properly admitted against him, so long as its admission satisfied other relevant Rules of Evidence. Our primary concern is therefore whether the admission of McGarity's written confession was proper under Rule 403. We find that it was." McGarity, 669 F.3d at __ (footnote omitted).

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