Empirical Fallacies of Evidence Law: A Critical Look at the Admission of Prior Sex Crimes

45 Pages Posted: 8 Sep 2012 Last revised: 12 Jul 2013

See all articles by Aviva Orenstein

Aviva Orenstein

Indiana University Maurer School of Law

Tamara Rice Lave

University of Miami, School of Law

Date Written: 2012


In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on this image of sex crime perpetrators, legislators and judges have ignored the contrary psychological and criminological evidence. Most critiques of the sex-propensity Rules concentrate on the unfairness part of the Rule 403 equation, but we approach them in a novel way, focusing instead on the absence of empirical support for their so-called probative value. This article examines the empirical support for the probative value of such evidence, revealing that current policy rests on bogus psychology and false empirical assertions. Rules 413-414 typify the regrettable seat-of-the-pants psychologizing on which evidence rule drafters rely too often; the approach eschews a nuanced approach to questions of recidivism and the different types of sex offenders. We argue that rulemakers should look to the disciplines engaged in the empirical study of perpetrator behavior before asserting notions of deviance and recidivism to justify radical changes to evidence law. Finally, we offer specific guidance to judges about how to conceptualize the probative value of evidence of prior sexual misconduct and how to incorporate this knowledge in applying their discretion in admitting sex-crime propensity evidence.

Keywords: Child molestation, Rape, Recidivism, Propensity, Character Evidence

Suggested Citation

Orenstein, Aviva and Lave, Tamara Rice, Empirical Fallacies of Evidence Law: A Critical Look at the Admission of Prior Sex Crimes (2012). University of Cincinnati Law Review, Vol. 81, p.795 (2013), Indiana Legal Studies Research Paper No. 209, Available at SSRN: https://ssrn.com/abstract=2143174 or http://dx.doi.org/10.2139/ssrn.2143174

Aviva Orenstein (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States
812-855-8736 (Phone)

Tamara Rice Lave

University of Miami, School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States

HOME PAGE: http://www.law.miami.edu/facadmin/tlave.php

Here is the Coronavirus
related research on SSRN

Paper statistics

Abstract Views
PlumX Metrics