Abstract

http://ssrn.com/abstract=2137045
 


 



Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause


Colin Miller


University of South Carolina School of Law

August 27, 2012

Nebraska Law Review Bulletin, Forthcoming

Abstract:     
In Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with the Ex Post Facto Clause, including “[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” But, in its opinion in Carmell v. Texas, the Court determined that ordinary rules of evidence do not violate the Clause because they (1) are “evenhanded, in the sense that they may benefit either the State or the defendant in a given case;” and (2) “do not at all subvert the presumption of innocence….”

Federal Rules of Evidence 413 and 414 as well as state counterparts, however, are neither evenhanded nor consistent with the presumption of innocence. Instead, these rules can only be used to benefit the prosecution, and they subvert the traditional presumption of innocence maintained by the propensity character evidence proscription. Accordingly, courts across the country have erred in finding that the retroactive application of these rules does not violate the Ex Post Facto Clause.

Number of Pages in PDF File: 10

Keywords: Ex Post Facto Clause, Federal Rules of Evidence 413 & 414

JEL Classification: K14, K42

Accepted Paper Series





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Date posted: August 30, 2012 ; Last revised: October 27, 2012

Suggested Citation

Miller, Colin, Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause (August 27, 2012). Nebraska Law Review Bulletin, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2137045 or http://dx.doi.org/10.2139/ssrn.2137045

Contact Information

Colin Miller (Contact Author)
University of South Carolina School of Law ( email )
Main & Greene Streets
Columbia, SC 29208
United States
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