Commercial Litigation and Arbitration

Evidence: How Does Rule 403 Apply to Propensity Evidence Allowed by Rules 413 and 414? — Circuit Split

Pilati v. United States, 2016 U.S. Dist. LEXIS 99541 (N.D. Ala. Mar. 23, 2016):

A court cannot admit evidence of a person's character or traits in order to "prove that on a particular occasion the person acted in accordance with the character or trait." Fed. R. Evid. 404(a)(1), (b)(1). However, Rule 413 provides an exception to the general rule which permits propensity evidence in cases involving sexual assault and child molestation. See United States v. Batton, 602 F.3d 1191, 1196 (10th Cir. 2010). Under Rule 413(a), "[i]n a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault." "The evidence may be considered on any matter to which it is relevant."20 Fed. R. Evid. 413(a). The court also must conduct a Rule 403 balancing test. See United States v. McGarity, 669 F.3d 1218, 1244 n. 32 (11th Cir. 2012); Batton, 602 F.3d at 1198. Rule 403 permits the court to "exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice, confus[ion of] the issues, [or] misleading the jury ...." Fed. R. Evid. 403. Significantly, the Court of Appeals for the Eleventh Circuit has not explicitly enumerated the factors courts should consider when applying Rule 403 balancing to Rule 413, but it has consistently deferred to the discretion of district courts and cautioned that Rule 403 is a rule of inclusion. [*44]  See United States v. Lopez, 649 F.3d 1222, 1247 (11th Cir. 2011) (directing courts to "look at the evidence in a light most favorable to its admission, maximizing its probative value and minimizing its undue prejudicial impact") (citation omitted); see also United States v. Adleta. 2013 WL 4734824, *2 (M.D. Fla. Sept. 3, 2013).21

20   Rule 413 reflects Congress's view that propensity evidence from other sexual abuse and child molestation "is typically relevant and probative" and should ordinarily be admitted. United States v. Kelly, 510 F.3d 433, 437 (4th Cir. 2007) (citation omitted).

21   The Adleta court also noted:

    A Circuit split exists regarding the precise application of Rule 403 to Rules 413 and 414. See generally Martinez v. Cui, 608 F.3d 54, 60 (1st Cir. 2010) (discussing the varying emphases different Circuits place upon the judicially constructed factors that courts should consider while applying a 403 balancing test to 413 or 414 evidence).

Id. at 2013 WL 4734824 n.1.

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