Where There’s Smoke: Will Evidence Of Other Acts Of Child Molestation Be Admissible Against Jerry Sandusky?

An e-mail on the Evidence Professor listserv yesterday raised an interesting question: When former Penn State assistant football coach Jerry Sandusky is tried criminally and likely civilly for acts of child molestation, will evidence of uncharged/other acts of child molestation be admissible under the Pennsylvania Rules of Evidence? I think that the answer is likely “yes,” but the question of admissibility won’t be as easy as it is under the Federal Rules of Evidence and many other state evidentiary codes.

Federal Rule of Evidence 414(a)

 provides that

In a criminal case in which the defendant  is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

Meanwhile, Federal Rule of Evidence 415(a)

In a civil case in which a claim for damages or other relief is predicated on a party’s alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party’s commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.

These Rules, along with Federal Rule of Evidence 413, were

enacted in 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994…and became effective in 1995….The drafters’ purpose was to supersede Rule 404(b)’s prohibition on evidence of like conduct showing propensity in sexual assault cases.

As is made clear in Jessica D. Kahn, He Said, She Said, She Said: Why Pennsylvania Should Adopt Federal Rules of Evidence 413 and 414, 52 Vill. L. Rev. 641 (2007), however, unlike some other states, Pennsylvania does not have state counterparts to Rules 413-415.

That said, Pennsylvania Rule of Evidence 404(b)(2) provides that

Evidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof or motive, opportunity, intent, preparation, plan knowledge, identity or absence of mistake or accident.

Under this Rule, then, the prosecution/plaintiffs’ attorneys can present evidence of other acts of child molestation, not to prove, “Once a child molester, always a child molester,” but to prove common plan or scheme/modus operandi. For instance, in Commonwealth v. O’Brien, 836 A.2d 966 (Pa.Super. 2003), the Superior Court of Pennsylvania found no problem with the admission under Rule 404(b)(2) of evidence concerning the defendant’s prior sexual assaults against two minor boys in his prosecution for sexually assaulting a third minor boy.

-CM