Metropolitan News-Enterprise


Friday, August 10, 2001


Page 5


Ninth Circuit Upholds Use of ‘Propensity’ Evidence Against Child Molester


By a MetNews Staff Writer


A rule allowing evidence of past acts of child molestation to be admitted to prove that a defendant has a propensity to commit such crimes is constitutional, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

While the exclusion of such evidence is traditional under the common law, Judge Stephen S. Trott wrote, “[t]he Constitution does not encompass all traditional legal rules and customs, no matter how longstanding and widespread such practices may be.”

Supreme Court rulings, he added, do not require “the wholesale importation of common law and evidentiary rules into the Due Process Clause.”

The ruling upholds the 1994 amendment creating Rule 414 of the Federal Rules of Evidence. The amendment provides that in child molestation cases, “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.”

Rule 414 creates an exception to Rule 404(b), which bars the use of prior bad acts solely to prove a defendant’s bad character. The latter rule, Trott concluded, isn’t “so ingrained in Anglo-American jurisprudence as to the be embodied in the due process clause.”

Yesterday’s ruling affirms the conviction of Fred LeMay on two counts of child molestation. A jury in the District of Montana found LeMay guilty of orally copulating two nephews for whom he was babysitting on the Fort Peck Indian Reservation.

The prosecution offered evidence that LeMay had been convicted of raping two infant cousins while babysitting for them when he was 12 years old. U.S. District Judge Donald W. Molloy admitted the evidence, rejecting LeMay’s constitutional challenge and concluding that the evidence was more probative than prejudicial, and thus not barred by Rule 403.

The trial judge was correct on both aspects of his ruling, Trott concluded.

Many U.S. jurisdictions, he noted, admit propensity evidence in sex-offense cases. So long as a trial judge engages in the balancing required by Rule 403, the appellate jurist said, there is no constitutional bar to doing so.

In this case, Trott said, the balance weighed in favor of admission. He noted that the evidence bore heavily on the credibility of the victims, since the attack wasn’t reported in time for the police to build a case with forensic evidence, and that the evidence of the past offense was “highly reliable” given that it related to conduct for which the defendant was convicted.

The similarity of the crimes further weighed in favor of admission, Trott added.

The case is United States v. LeMay, 00-30193.


Copyright 2001, Metropolitan News Company