FRE 413, 414, 415

Rule 404 prohibits the use of propensity evidence to prove the character of an individual. These three rules—413, 414, and 415—are exceptions to the character propensity rule. That is, the prosecution is permitted to show past acts of sexual assault as propensity evidence against the defendant. The prosecution can take this kind of evidence directly through the propensity box.

Lannan v. State

600 N.E.2d 1334 (Ind. 1992).

Rules 413–414 were enacted in 1994, leaving states to determine for themselves what the rule should be before then. In Indiana, they previously had an exception called the “depraved sexual instinct,” essentially the equivalent of the federal rules today. Previously, the purpose of the exception was to discourage recidivism (this type of crime has a high recidivism rate and should be punished), and to bolster the testimony of witnesses who may have society set against them. Today, recidivism wasn’t a good reason for the exception because the exception doesn’t apply to other crimes with a high recidivism rate; bolstering credibility isn’t a good reason because the perception of society has changed to recognize this type of crime occurs frequently.

So, character evidence based on sexual assault was out in this case unless it falls under an exception in 404(b), that is, it goes around the propensity box.

State v. Kirsch

139 N.H. 647 (1995).

The defendant had used his position as a church member to target young women who came from poor homes with no father figure. In this case, the state sought to present evidence of several past sexual acts as stated in the testimonies of several young women who the defendant targeted.

The means of admission at trial was through 404(b) stating that it showed the motive, intent, and common plan of the defendant. Motive doesn’t work because the purpose was to show his propensity, same goes for intent. According to the majority, common plan does not work because the state needs to show that each individual act was part of a grand scheme, not the same act carried about in the same manner. However, the dissent argues that the method of finding the young victims was common and the victim utilized the same plan. Thus, the majority would exclude the evidence and the dissent would admit based on 404(b) common plan.

Additional Notes

About 20 states have passed the equivalent of 413–415. Other states are left to battle with rule 404(b) to determine whether the evidence is admissible.

United States v. Guardia

135 F.3d 1326 (10th Cir. 1998).

For 413 to apply, (1) the defendant must be charged with a sexual assault, (2) the evidence proffered must be of a sexual assault, and (3) the evidence must be relevant subject to 402 and traditional notions of 403.

Dr. Guardia was accused by two patients of sexual assault during an examination. The prosecution wished to present evidence from four previous patients of similar conduct. At trial, the court denied the request because the admission would confuse the jury based on 403. Considering whether this was an abuse of discretion, this court affirmed because admission would require several expert witnesses, essentially creating several mini trials.

United States v. Mound

157 F.3d 1153 (8th Cir. 1998).

Mound argued Rule 413 was a violation of Constitutional due process. The court, however, disagreed. Essentially, because Rule 403 exists, the defendant still has the opportunity to challenge admission and so it is not fundamentally unfair.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 2L Spring, Evidence

Will Laursen

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