Prior Sexual Misconduct Evidence in State Courts: Constitutional and Common Law Challenges

Abstract

Prosecuting sex crimes is a sensitive, challenging process, and many who commit these crimes end up going unpunished. While a defendant may have a history of prior sexual misconduct, the rules of evidence in most states and at the federal level generally prohibit the introduction of prior misconduct to show a defendant’s propensity to commit a present crime. In response, the federal government and numerous state legislatures have adopted rules of evidence that permit the introduction of prior sexual misconduct in cases where a defendant is charged with a sexual crime.

While commentators have written in great detail about federal rules regarding sexual misconduct propensity evidence, comparatively little attention has been paid to analogous rules at the state level. And while much of the commentary on rules of evidence permitting the introduction of prior sexual misconduct focuses on whether these rules are good or bad policy, questions of whether the rules violate due process rights or separation-of-powers requirements often fall by the wayside.

This article fills these gaps in the literature. In this article, I offer the first systematic review of challenges to state rules of evidence that permit the introduction of evidence of a defendant’s prior sexual misconduct. These challenges include claims that these rules violate due process, that they violate constitutionally mandated separation of powers, and that they contradict the common law. This article examines both the successful and unsuccessful challenges to state rules, evaluates the merits of the arguments, and emphasizes procedures and considerations that states must address if they seek to change their rules to permit evidence of prior sexual misconduct.

Keywords: criminal law, evidence, constitutional law, due process, state courts, history, propensity, character