Where There’s A Will(iam’s): Florida Opinion Reveals Florida Counterpart To Federal Rule Of Evidence 414

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.

This Rule was created by the Violent Crime Control and Law Enforcement Act of 1994. Florida’s counterpart to Rule 414(a) is section 90.404(2)(b)1, Florida Statutes, which provides that

In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.  

And, as the recent opinion of the District Court of Appeal of Florida, Fifth District, in Arrascue v. State, 2010 WL 3359371 (Fla.App. 5 Dist. 2010), makes clear, Florida’s rule was in place well before its federal counterpart.

In Arrascue, Luis Arrascue was convicted of two counts of lewd and lascivious molestation of a child. He thereafter appealed, and the appellate court noted that 

At trial in this case, the State had sought to introduce “William’s Rule” evidence from another alleged child victim. The trial court ruled that the State could not use this evidence unless Arrascue “opened the door” to its admission through cross-examination of the victim. Yet, defense counsel could not get a definitive response from the trial court as to what cross-examination, if pursued, would open the door for admission of the State’s proffered evidence. The trial judge indicated that he would need to hear the testimony to make that assessment. Rather than proffer the desired cross, and secure a definitive ruling, counsel simply elected to forgo his desired cross as to a number of topics.

Accordingly, the court found that

Because defense counsel did not proffer his cross-examination outside of the presence of the jury, we have no way of knowing how the trial court would have addressed the issue given questions that might (or might not) have been asked and responses that might (or might not) have been given. Additionally, we have no way to assess whether the contemplated cross-examination would have made any difference in the outcome….Although the record does contain some very generalized statements about the nature of the abandoned cross-examination, it does not contain enough information to permit meaningful appellate review as to this issue.

I agree with the court’s ruling and have a couple of points to add. First, the “William’s Rule” mentioned by the court comes from the Supreme Court of Florida’s 1959 opinion in Williams v. State, 110 So.2d 654 (Fla. 1959), which allowed for the admission of evidence of a defendant’s past act of sexual misconduct. Florida eventually codified that Rule in section 90.404(2)(b)1, Florida Statutes, and I find it somewhat odd that the court solely cited to “William’s Rule” and not its codification.

Second, I find it odd that the trial judge found that the State could not use the “other act” evidence unless and until Arrascue engaged in a certain type of cross-examination of the victim. I don’t see any requirement for such door opening in Williams or section 90.404(2)(b)1, and I don’t see how vigorous cross-examination of the alleged victim in Arrascue would have increased the probative value of “other act” evidence.

-CM