On Balance: 2nd Circuit Finds Child Molestation Evidence Presumptively Admissible Under Rule 403

Federal Rule of Evidence 414(a) provides that

In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

Enacted as part of the Violent Crime Control and Law Enforcement Act of 1994 to increase the likelihood of sexual offense convictions, the Rule was accompanied by the was accompanied by the following statement from its sponsors:

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.

Given this statement, some courts conclude that evidence admissible under Rule 414(a) (as well as Rules 413(a) and 415(a)) should almost never be excluded under Federal Rule of Evidence 403 while other courts conduct an independent Rule 403 analysis and determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. So, where does the Second Circuit stand on the issue?

In United States v. Donaldson, 2014 WL 4290333 (2nd Cir. 2014), Kevin Donaldson was convicted of attempted and actual transportation of his minor step-daughters and niece with intent to engage these adolescents in criminal sexual activity. After he was convicted, Donaldson appealed, claiming, inter alia, that the district court erred by allowing the prosecution to admit evidence “of his past sexual assaults of the aforementioned victims.”

Donaldson did not dispute that this evidence was admissible under Rule 414(a), but he claimed that the district court should have excluded it as unduly prejudicial under Rule 403. The court quickly rejected this argument, finding that the evidence had solid probative value and then noted that this

conclusion comports with our observation that Rule 403 balancing in the context of Rule 414 is necessarily informed by Congress’s expectation “that convictions within [Rule 414‘s] ambit would normally be admitted and that their prejudicial value would normally not be outweighed by the risk of prejudice,” which was “an expectation normally to be honored unless application of the rule would offend the Due Process Clause.” United States v. Davis, 624 F.3d 508, 512 (2d Cir.2010) (recognizing that evidence of prior child molestation by defendant charged with sexual exploitation of minor “may be highly prejudicial but not necessarily unfairly prejudicial.”

Donaldson also argued “that even if evidence of his prior convictions for sexual assault of minors was admissible, victim testimony regarding the actions underlying those convictions was not.” The Second Circuit again disagreed, concluding that “[t]his argument is defeated by precedent. See United States v. Larson, 112 F.3d 600, 605 (2d Cir.1997) (recognizing admissibility pursuant to Fed.R.Evid. 414 of testimony regarding similar molestation by defendant occurring 16 to 20 years prior to trial).”

-CM