Deviance, Due Process, and the False Promise of Federal Rule of Evidence 403

77 Pages Posted: 7 Nov 2005 Last revised: 14 Jun 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, Federal Rules of Evidence 413 and 414 (concerning rape and child abuse, respectively) allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity. Courts have rejected due process challenges to the new rules, holding that Federal Rule of Evidence 403 serves as a check on any fairness concerns. However, courts' application of Rule 403 in cases involving these sexual propensity rules is troubling. Relying on the legislative history of the new rules and announcing a presumption of admissibility, courts have forsaken the traditional operation of Rule 403. Thus, while touting Rule 403 as the guarantor of due process, these courts have limited - and, in some cases, abandoned - their essential role as gatekeepers. The article rejects what it dubs 403-lite, an uncritical, acontextual and rote application of the Rule 403 standard. It proposes new ways for courts to apply Rule 403 in the context of Rules 413 and 414, permitting them to follow the new and dubious course charted by Congress without abandoning the basic guarantees of fairness or derogating the vital discretionary powers of the trial judge to determine admissibility on a case-by-case basis. Courts can limit the dangers these rules present by carefully monitoring the emotional aspects of the evidence, the methods of proof and the time spent on such uncharged offenses, all with an eye to diminishing jury confusion and distraction. Rules 413 and 414 raise significant issues concerning the integrity and power of the courts. In legislating new rules of evidence, Congress cannot pre-balance prejudice and probative value in individual cases. By retaining the crucial judicial functions of weighing evidence and exercising discretion, courts can achieve a balance between the Congressional mandate to admit particular evidence and the judicial role of ensuring a fair trial.

Keywords: due process, federal law, evidence

Suggested Citation

Orenstein, Aviva, Deviance, Due Process, and the False Promise of Federal Rule of Evidence 403. Cornell Law Review, Vol. 90, p. 1487, 2005, IU Law-Bloomington Research Paper No. 36, Available at SSRN:

Aviva Orenstein (Contact Author)

Indiana University Maurer School of Law ( email )

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United States
812-855-8736 (Phone)

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