Show Me, Take 3: Missouri’s Evidentiary Amendment & the Victims’ Bill of Rights

On Wednesday, Jeff posted an entry about voters in Missouri approving an amendment to the state’s constitution which creates a state counterpart to Federal Rule of Evidence 414 (allowing for the admission of evidence of other acts of child molestation in child molestation prosecutions). In the post, he noted that “Colin probably knows if this is the only example of this type of rule enacted directly by voters, but it is interesting to see the level of popular support for the rule.”). 

I don’t, but my guess is that this is the first popular vote on this type of law, and that’s because of the uniqueness of what happened in Missouri. First, Missouri is (I think) aberrational in that

although Missouri’s Constitution leaves it to this Court to develop rules of procedure, it specifically prohibits the Supreme Court from creating rules of evidence. Mo. Const. art. V, sec. 5. See State v. Williams, 729 S.W.2d 197, 201 (Mo. banc 1987) (“[T]he legislature has plenary power to prescribe or alter the rules of evidence….”).  State Bd. of Registration for Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. 2003).

Second, the Missouri legislature already passed a similar law twice, only to have the Supreme Court of Missouri strike it down.

So, aside from Missouri’s constitutional amendment, what is the most significant evidentiary amendment that voters have approved? Probably this:

On June 8, 1982, California voters amended the California Constitution by passing Proposition 8, popularly known as the Victims’ Bill of Rights, thereby creating potentially the most dramatic change in the rules of evidence in the history of this state. Prior to Proposition 8, California rules of evidence protected criminal defendants by restricting the admissibility of prior misconduct impeachment evidence to felonies. The public, “perceiving an imbalance in favor of defendants in the rules regarding the admissibility of evidence,” voted for relaxing the rules of evidence. Hank M. Goldberg, The Impact of Proposition 8 on Prior Misconduct Impeachment Evidence in California Criminal Cases, 24 Loy. L.A. L. Rev. 621 (1991).

-CM