Fatti Maschil, Parole Femine: Will Maryland Adopt Version of Sexual Character Evidence Rule?

Federal Rule of Evidence 404(b) states in pertinent part that

Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

That said, Federal Rules of Evidence 413–415, passed in 1994, allow for the admission of prior acts of sexual assault and child molestation to be admitted against a civil or criminal defendant in a case involving similar behavior. After a constitutional amendment was passed in Missouri last year, 12 states have adopted state counterparts to these federal rules. Will Maryland soon make it a baker’s dozen?

An article in today’s Baltimore Sun talks about the case of Nelson Bernard Clifford, a man who has been acquitted of four separate sex offense charges since 2010. According to the article,

Prosecuting Nelson Clifford was part of a larger vow by [Baltimore City State’s Attorney Marilyn] Mosby to push for sexual assault legislation in Annapolis that would allow prosecutors to introduce evidence of similar crimes previously committed by sexual assault suspects. Mosby partnered with Del. Aisha Braveboy to introduce legislation that would change Maryland law in that area to mirror the federal rules of evidence, which are also used in several states. The bill died in a legislative committee without being put to a vote.

The State’s Attorney’s Office said the bill is being drafted again. Mosby will have to find a new sponsor, as Braveboy ran unsuccessfully for Attorney General and is no longer in the House of Delegates.

As always, this issue promises to be divisive. Some support state laws similar to Federal Rules of Evidence 413–415 based upon the poor reporting and conviction rates involving alleged sexual crimes. Others claim that sexual character evidence is no more probative and no less prejudicial than evidence that, say a person accused of a drug-related crime had committed a drug-related crime in the past, which is inadmissible. It will be interesting to see what happens with the proposed Maryland bill.

-CM