Propensity or Stereotype?: A Bad Evidence Experiment in Indian Country

33 Pages Posted: 9 Feb 2010 Last revised: 9 Jul 2013

See all articles by Aviva Orenstein

Aviva Orenstein

Indiana University Maurer School of Law


In a significant break with traditional evidence rules and policies, the Federal Rules of Evidence concerning rape and child abuse, Rules 413 and 414, permit the government to admit the accused’s prior sexual misconduct as evidence of character and propensity. Although these rules have been roundly criticized, insufficient attention has been paid to the fact that in allowing propensity evidence for federal sex offenses (as opposed to offenses under state law), these rules disproportionately affect one distinct civilian population: Indians.

The de facto concentration of Rules 413-414 cases in Indian Country raises troubling questions regarding what it means to have just and neutral evidence rules. The selective application of these character rules to a particular population violates important goals of evidence law, such as equal application, fair process, and focus on the event charged. The concentration of Indians among criminal defendants subject to Rules 413-414 exposes Indians to rules that allow jurors to convict relying on the accused’s propensities and prior sex offenses. This focus on prior bad acts can be unfair to the accused and distracting for the jury. It may also perpetuate stereotypes about Indians, subtly influencing the development and application of the rules.

Relying on theories of how fact-finders use stereotypes, this Essay posits that applying Rules 413-414 to a discrete minority makes the propensity arguments seem more intuitively appealing, because the appearance of Indians as regulars at the defense table works to reinforce the perception that propensity evidence is valuable. Therefore, this Essay argues, the evidence experiment in Indian Country has helped pave the way for judicial acceptance of a dangerous new doctrine permitting propensity evidence in sex offense cases.

Keywords: Evidence, propensity stereotypes, character, Indians, Rule 414, Rule 413

Suggested Citation

Orenstein, Aviva, Propensity or Stereotype?: A Bad Evidence Experiment in Indian Country. Cornell Journal of Law and Public Policy, Vol. 19 (2009), Indiana Legal Studies Research Paper No. 148, Available at SSRN:

Aviva Orenstein (Contact Author)

Indiana University Maurer School of Law ( email )

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