Federal Rules of Evidence 413-415 and the Struggle for Rulemaking Preeminence

Abstract

This paper considers Federal Rules of Evidence 413-415, governing admissibility of similar crimes evidence in sexual assault and child molestation cases in federal courts. Enacted by Congress in 1995 despite the objections of the Judicial Conference, the American Bar Association, and many legal scholars, and in contravention of the established process for promulgating rules of procedure and evidence set out in the Rules Enabling Act, these rules carve an exception out of the rule against the use of propensity evidence where the acts are sexual in nature. In the ten years that the rules have been in effect, the issue that has emerged is the proper scope of trial court discretion to exclude similar acts evidence in sexual assault cases under the general supervisory authority of Rule 403. Should that discretion be constrained in recognition of Congress's wish that such evidence be broadly admissible? Or should courts use their supervisory power to reestablish consistency in the area of similar acts evidence, as well as to push back against congressional encroachment into the judicial sphere?

This issue invites a broader consideration of which branch of government ought to have primacy in the area of evidence rulemaking. Congress would appear to have delegated that aspect of its legislative power to the courts through the Rules Enabling Act, but recent years have seen a contraction in the scope of that delegation. This paper considers the question of which branch should enjoy rulemaking preeminence from the perspective not of power, but of institutional competence, considering the nature and purpose of particular evidentiary rules rather than determining the question categorically. I conclude that the rules regarding similar acts involve interests that are fundamentally judicial rather than legislative, and that, accordingly, courts should implement a robust Rule 403 balancing inquiry when presented with similar acts evidence under Rules 413-415.

This version of the article is a submission draft and does not reflect any law review edits.