[Congressional Record Volume 140, Number 132 (Tuesday, September 20, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: September 20, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                        SIMILAR-OFFENSE EVIDENCE

  Mr. DOLE. Mr. President, the crime legislation signed into law last 
week contains a critical reform designed to protect the public from 
crimes of sexual violence: new Federal rules of evidence establishing a 
general presumption that evidence of past similar offenses in sexual 
assault and child molestation cases is admissible at trial.
  Congresswoman Susan Molinari and I initially proposed this reform in 
February 1991 in the Women's Equal Opportunity Act, and we later 
reintroduced it in the Sexual Assault Prevention Act bills of the 102d 
and 103d Congresses. The proposal also enjoyed the strong support of 
the administration in the 102d Congress, and was included in President 
Bush's violent crime bill of that Congress, S. 635. This Chamber passed 
the proposed rules on Nov. 5, 1993, by a vote of 75 to 19, as an 
amendment to the crime bill. The House of Representatives endorsed the 
same rules on June 29, 1994, by a vote of 348 to 62, through a motion 
to instruct conferees offered by Representative Molinari.
  The enacted rules are substantially identical to our earlier 
proposals. Provisions that temporarily defer the effective date of the 
new rules, pending a report by the Judicial Conference, were added in 
order to accommodate procedural objections raised by opponents of the 
reform. However, regardless of what the Judicial Conference may 
recommend, the new rules will take effect within at most 300 days of 
the crime bill's enactment, unless repealed or modified by subsequent 
legislation.
  The need for these rules, their precedential support, their 
interpretation, and the issues and policy questions they raise have 
been analyzed at length in the legislative history of this proposal. 
Two earlier statements deserve particular attention:
  The first is section 801 of the section-by-section analysis of S. 
635, which President Bush transmitted to Congress in 1991. That 
statement appears on pages S3238 through S3242 of the Congressional 
Record for March 13, 1991.
  The second is the prepared text of an address--entitled ``Evidence of 
Propensity and Probability in Sex Offense Cases and Other Cases''--by 
Senior Counsel David J. Karp of the Office of Policy Development of the 
U.S. Department of Justice. Mr. Karp presented this statement on behalf 
of the Justice Department to the Evidence Section of the Association of 
American Law Schools on January 9, 1993. The statement provided a 
detailed account of the views of the legislative sponsors and the 
administration concerning the proposed reform, and should also be 
considered an authoritative part of its legislative history.
  These earlier statements address the issues raised by this reform in 
considerable detail. In my present remarks, I will simply emphasize the 
following points:
  The new rules will supersede in sex offense cases the restrictive 
aspects of Federal rule of evidence 404(b). In contrast to rule 
404(b)'s general prohibition against evidence of character or 
propensity, the new rules for sex offense cases authorize admission and 
consideration of evidence of an uncharged offense for its bearing ``on 
any matter to which it is relevant.'' This includes the defendant's 
propensity to commit sexual assault or child molestation offenses, and 
assessment of the probability or improbability that the defendant has 
been falsely or mistakenly accused of such an offense.
  In other respects, the general standards of the rules of evidence 
will continue to apply, including the restrictions on hearsay evidence 
and the court's authority under evidence rule 403 to exclude evidence 
whose probative value is substantially outweighed by its prejudicial 
effect. Also, the government, or the plaintiff in a civil case, will 
generally have to disclose to the defendant any evidence that is to be 
offered under the new rules at least 15 days before trial.
  The reform effected by these rules is critical to the protection of 
the public from rapists and child molesters, and is justified by the 
distinctive characteristics of the cases to which it applies. In child 
molestation cases, for example, a history of similar acts tends to be 
exceptionally probative because it shows an unusual disposition of the 
defendant--a sexual or sado-sexual interest in children--that simply 
does not exist in ordinary people. Moreover, such cases require 
reliance on child victims whose credibility can readily be attacked in 
the absence of substantial corroboration. In such cases, there is a 
compelling public interest in admitting all significant evidence that 
will shed some light on the credibility of the charge and any denial by 
the defense.
  Similarly, sexual assault cases, where adults are the victims, often 
turn on difficult credibility determinations. Alleged consent by the 
victim is rarely an issue in prosecutions for other violent crimes--the 
accused mugger does not claim that the victim freely handed over his 
wallet as a gift--but the defendant in a rape case often contends that 
the victim engaged in consensual sex and then falsely accused him. 
Knowledge that the defendant has committed rapes on other occasions is 
frequently critical in assessing the relative plausibility of these 
claims and accurately deciding cases that would otherwise become 
unresolvable swearing matches.
  The practical effect of the new rules is to put evidence of uncharged 
offenses in sexual assault and child molestation cases on the same 
footing as other types of relevant evidence that are not subject to a 
special exclusionary rule. The presumption is that the evidence 
admissible pursuant to these rules is typically relevant and probative, 
and that its probative value is not outweighed by any risk of 
prejudice.
  In line with this judgment, the rules do not impose arbitrary or 
artificial restrictions on the admissibility of evidence. Evidence of 
offenses for which the defendant has not previously been prosecuted or 
convicted will be admissible, as well as evidence of prior convictions. 
No time limit is imposed on the uncharged offenses for which evidence 
may be admitted; as a practical matter, evidence of other sex offenses 
by the defendant is often probative and properly admitted, 
notwithstanding substantial lapses of time in relation to the charged 
offense or offenses. See, e.g., United States v. Hadley, 918 F.2d 848, 
850-51 (9th Cir. 1990), cert. dismissed, 113 S.Ct. 486 (1992) (evidence 
of offenses occurring up to 15 years earlier admitted); State v. 
Plymate, 345 N.W.2d 327 (Neb. 1984) (molestations more than 20 years 
earlier admitted).
  Finally, the effectiveness of the new rules will depend on the 
faithful execution by judges of the will of Congress in adopting this 
critical reform. The courts should liberally construe the rules so that 
the defendant's propensities, as well as questions of probability in 
light of the defendant's past conduct, can be properly assessed.

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