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Article Excerpt
I. INTRODUCTION
Imagine that, in response to a growing public perception that homicides were too frequently going unpunished, (1) and that rules of evidence unreasonably insulated juries from the graphic horror of the crime of murder, (2) Congress passed a statute that amended the Federal Rules of Evidence to provide as follows:
Rule 416. Autopsy Photos
Any photograph of the body of a victim of an alleged homicide, including any photograph taken during a medical examination, shall be admissible on any matter to which it is relevant.
How would autopsy photos offered at a homicide trial after the effective date of this amendment be treated by the trial court? (3) What would be the nature and scope of the trial court's review of those photos under Federal Rule of Evidence 403? (4) Are the answers to these questions determinable exclusively by reference to the language of the amended rule, or the language of the entire body of rules of evidence? (5) Could the answers be found by reference to the legislative history of the amendment, and if so, what weight would the unanimous opposition of the judiciary and the bar have in that analysis? (6) How should the fact of congressional amendment--as opposed to judicial amendment--of the rules affect the longstanding practice of weighing the probative value of all relevant evidence against the danger of unfair prejudice posed by that evidence?
Although no such amendment has, in fact, been enacted, it would be surprising if trial courts implementing such a rule did not resist, to some degree, congressional imposition of a categorical approach to admissibility in a context in which individualized determinations of probativeness and prejudice by a trial judge have been the norm. It would be still more surprising if trial courts began routinely admitting autopsy photos on the theory that the new rule expressed an "underlying legislative judgment ... that [such evidence] is normally not outweighed by any risk of prejudice or other adverse effects." (7) Most surprising would be the complete failure of reviewing courts to recognize the rule as a manifestation of the now long-simmering feud between Congress and the courts over the politics of evidence rulemaking. (8)
I pose this hypothetical because federal trial and appellate courts' implementation of the rules relating to evidence of similar crimes in sexual assault and child molestation cases (9) has produced precisely these surprising outcomes. (10) Like autopsy photos, evidence of similar crimes to prove character or propensity has provided the paradigmatic context for the exercise of judicial discretion under Rule 403 to exclude evidence that, although relevant, is also highly prejudicial. (11) Accordingly, a congressional amendment that would, as Rules 413-415 have done, radically alter the' legal landscape and impose a rule of categorical admissibility for propensity evidence poses many of the questions that the hypothetical rule regarding autopsy photos might provoke.
Almost a dozen years into the life of the special Federal Rules of Evidence governing the use of similar evidence in sexual assault cases, (12) rules whose enactment by Congress was heatedly contested both substantively (13) and procedurally, (14) and whose rationale remains elusive, (15) the battleground has shifted. The question now presented is not whether such rules should be enacted, but how, in trials alleging sexual violence, the general supervisory authority of the trial court under Rule 403 intersects with the broad congressional mandate to admit similar acts evidence of prior sexual assault "on any matter to which it is relevant." (16) The problem can be approached in a number of ways, from one of ordinary statutory construction (17) to one of constitutional due process. (18) This Article proposes to consider trial and appellate court struggles to integrate the similar acts rules with Rule 403 as an episode in the long history of conflicts rooted in norms of institutional competency and separation of powers. (19) Interestingly, the decisional law that has emerged since implementation of the special similar crimes rules demonstrates a very limited degree of judicial resistance to the reassertion of legislative power in this traditionally and structurally judicial space. (20) This level of resistance is somewhat surprising given the long history of judicial primacy in the area of procedural rulemaking, as well as particular perceptions of institutional competency that these special similar acts rules are perceived to undermine. (21) Whereas there are examples of legislative resistance to judicial encroachment on peculiarly legislative functions, (22) and of legislative and judicial resistance to the assertion of executive power in spheres of judicial (23) and legislative authority, (24) so here one might expect courts to resist the congressional effort to strip them of their delegated authority to determine and construct the rules of admissibility in adjudicatory proceedings. (25) This expectation is heightened by the subject matter of the rules enacted by Congress, since similar acts evidence has long been an area in which fact-specific weighing by an experienced trial judge has been deemed essential to a fair trial. (26)
Moreover, beneath this debate over institutional competency is a foundational inquiry as to the nature of the rules themselves, and the corresponding political and prudential question of which branch of government is most competent to act with respect to those rules. (27) Much turns on this prior question. The rules at issue may be viewed as instantiations of a policy preference that places the public interest in punishment of sexual offenses above the interest in accurate and just adjudication (obtained, in part, by preventing the prejudicial use of prior bad acts). (28) That determination would seem to belong to the legislature--here, Congress--but only to the extent that it does not compromise fundamental constitutional norms of due process or separation of powers. If, however, the rules at issue do compromise constitutional norms, then they are plainly invalid and the proper subject of judicial attention.
As it happens, the constitutional question is a fairly easy one as a matter of law. (29) The more difficult question arises when, as here, the rules are indeed reflective of a considered legislative preference, but one that is ordinarily governed by a judicially determinable inquiry about relevance, probativeness, and prejudice. Returning to the autopsy photo hypothetical, the question is: should all such questions be left to the judiciary, or is the legislature wise to control or influence outcomes that hinge on such a balance? What is the proper scope of judicial review under the guise of the court's general supervisory authority, contained in Rule 403, when the legislature has spoken so clearly? This Article explores that foundational question. (30)
Second, this Article considers whether a rule of judicial discretion like Federal Rule of Evidence 403 is the proper vehicle for reasserting judicial preeminence in an interbranch power struggle such as the one I describe. (31) While the judiciary enjoys the power to alter the distribution of powers among the branches through its authority to adjudicate cases and controversies arising under the Constitution, (32) the use of an evidentiary rule of discretion to curtail congressional rulemaking power raises its own issues of legitimacy. This Article explores the justifications for invoking Rule 403 to limit the admissibility of similar acts in sex offense cases when Congress has indicated that a rule of broad admissibility should ordinarily apply.
Finally, this Article reviews the decisional law of trial and appellate courts presented with the question of the scope of their authority under Rule 403 to exclude that evidence made admissible by the new similar act rules, concluding that although the approach that has emerged to date gives adequate, if limited, play to judicial discretion, it does so without rooting that exercise of discretion in the legitimacy analysis offered herein. Instead, decisions under the new rules regarding similar acts evidence rest on a superficial and textualist rationale and do not explore the deeper question of authority that this clash between Congress and the courts evokes. I suggest that future decisions grounded in this prudential and frankly political analysis would enjoy greater coherence and legitimacy than those that rest exclusively on interpretive tools such a plain meaning and other norms of statutory construction. It would also legitimize a more robust exercise of Rule 403 discretion to exclude prior bad acts in sexual assault cases than has, to date, been applied under the new rules.
II. WHICH BRANCH BEST CONTROLS RULES OF PROCEDURE AND EVIDENCE?
The question of which branch is best suited to promulgate rules of evidence for application in civil and criminal trials has at least two possible answers. Preliminarily, such rules, like the Rules of Civil Procedure and the Rules of Criminal Procedure, were enacted by Congress, (33) and operate as code with the force of law; (34) as such, they are pieces of legislation and ought, one would suppose, to originate with the legislative branch. (35) Certainly, since their enactment, the Rules of Evidence have been accorded statutory authority and have been interpreted as would other legislatively enacted statutes. (36)
On the other hand, as Professor Linda Mullenix observed with respect to rules of civil procedure:
[F]or separation-of-powers purposes one may view the Rules Enabling Act as a codification of the constitutional limits. The constitutional limitation prevents Congress from compromising the constitutional independence of the judiciary by invading the inherent power of the judiciary to create rules of practice and procedure for the courts. The statutory limitation allocates the substantive law-making function to the legislative branch, and the procedural rule-making function to the courts. (37)
By this reasoning, Congress may not enact legislation that purports to determine rules of procedure without violating separation of powers principles, which principles the judiciary is charged with overseeing. Most scholars and courts have found this argument insufficiently persuasive to support the conclusion that Congress lacks the authority to enact rules of procedure, even against the advice of the judiciary. (38)
Despite its power to act in the areas of procedure and evidence, Congress chose to delegate its authority to the judiciary in its enactment of the Rules Enabling Act, which provides that "[t]he Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrates thereof) and courts of appeals." (39) This delegation is clear and unambiguous in its breadth, but has generated ambiguity in interpretation of its scope, as defined by the phrase "rules of practice and procedure." Those rules deemed to confer or infringe upon substantive rights have been correspondingly invalidated as beyond the judiciary's power to promulgate them pursuant to this delegation. (40) In the course of acting under this grant of authority, the Judicial Conference of the United States Supreme Court, through an ad hoc committee and, later, through the advisory committee appointed to draft rules of evidence, twice determined that rules of evidence were indeed "procedural" within the language of the Enabling Act. (41) This self-affirming conclusion provided the authority for promulgating the draft rules themselves. (42)
The authority to consider and frame rules regarding admissibility and exclusion of evidence has, then, to the extent that such rules have been regarded as categorically procedural rather than substantive in nature, long been deemed to be peculiarly within the institutional competence of the judiciary rather than the legislature. (43) Rules of both procedure and evidence have, for nearly a century, been drafted by members of the judiciary or their appointed delegates, usually lawyers and legal scholars, and not by general legislatures, either state or federal. (44) Despite the formal retention of veto authority for such rules, (45) for some forty years Congress did not see fit to second-guess the judiciary and its appointees to the relevant committees who drafted those rules. (46)
Not surprisingly given this provenance, the rules of procedure and evidence that have emerged are fundamentally different in character from the acts of a general legislature. As one commentator put it:
The Federal Rules of Evidence have very little in common with a typical statute. Most fundamentally, the Federal Rules of Evidence originated in, and were designed by, the judicial branch and not the legislative branch. In addition, the role of Congress in the process that generated the Federal Rules of Evidence was largely passive. Congress's primary function was to enact into law the will and intent of the Supreme Court and its Advisory Committee. Moreover, the judicial branch designed the Federal Rules of Evidence to operate as guidance for the exercise of discretion within the federal judiciary, and consequently, the Rules' intended function is very much unlike that of most statutes. (47)
That the special rules regarding similar acts evidence in sexual assault and child molestation cases did not emerge from the process contemplated and repeatedly employed by Congress via the Rules Enabling Act is itself a red flag that the resulting rules have a political subtext (48) and that they might not reflect the considered wisdom of those who preside over and practice before courts. (49) Does it also suggest that Congress intended the special rules regarding similar acts in sexual assault cases to operate independently of the body of rules whose provenance is so different? At least a few commentators and courts have said yes. (50)
The Rules Enabling Act can certainly be seen to represent a determination by Congress that those who practice as judges and lawyers are best suited to make the rules of procedure and evidence that apply in those tribunals. (51) It is a frank and complete delegation to the judiciary of the legislative process with respect to such rules, with only a supervisory approval role reserved for Congress itself. Indeed, during the period immediately following its enactment, from 1934 to 1974, Congress was entirely passive with respect to the Rules promulgated pursuant to the Enabling Act, including their drafting, enactment, and occasional amendment. (52) It was not until 1973, when the Supreme Court submitted the proposed Rules of Evidence to Congress, (53) that Congress reasserted its right to act in this arena. (54)
This episode is itself telling in its foreshadowing of the conflict over Rules 413-415: many observers have noted that congressional disapproval of the draft Rules of Evidence was centered on and exacerbated by the proposed rules regarding privilege, (55) and might not have been as intense had the drafters avoided this minefield of interest politics with its long history of state legislative preeminence. (56) As the Senate Judiciary Committee explained, a number of commentators had "questioned the wisdom of promulgating rules of evidence under the Rules Enabling Act, on the ground that in their view, the codification of the law of privilege should be left to the regular legislative process." (57) To the degree that the interests at play in the debate about similar acts evidence can be likened to the concerns that surrounded proposed federal privilege rules, the institutional tensions between Congress and the courts are predictable and deeply held. (58) Correspondingly, to the degree that rules regarding similar acts evidence can be conceptually distinguished from those regarding privilege, the question of institutional competency and corresponding preeminence should be answered quite differently. (59)
A second wave of congressional pushback in the area of rules drafting occurred after the implementation of the Federal Rules of Evidence, and these Congress-enacted rules again focused on matters as to which there was a congressional consensus that they were more substantive than procedural. (60) Since that time, there has been vigorous advocacy of the notion that the substance-procedure line is illusory; that, as one scholar has explained, it is impossible to assert "that civil process is normatively independent of substance, an idea that justified court rulemaking at its inception and sustained it through much of [the twentieth] century." (61) Still others contend that the Rules Enabling Act does not so much delegate additional legislative power to the judiciary as it does codify those rulemaking powers that the Constitution itself contemplated would be exercised by the courts under Article III. (62) Nevertheless, Congress has asserted that the power to promulgate rules of procedure is exclusively legislative, (63) even as that assertion has been dismissed as "nonsense." (64)
A. LEGISLATIVE HISTORY AS EVIDENCE OF INTERBRANCH CONFLICT
A brief overview of the process of rule enactment and amendment set out in the Rules Enabling Act is warranted here in order to highlight the very different provenance of the special rules regarding similar acts in sexual assault cases. Not only did Congress not delegate the drafting of such rules to the Supreme Court's Judicial Conference and its constituent committees, but Congress actually drafted these rules on its own and then enacted them in the teeth of explicit opposition from that body to Congress's fait accompli. (65) It would be hard to imagine a more complete repudiation of the Rules Enabling Act's design for delegation of rulemaking authority. (66) Accordingly, it is somewhat surprising that courts confronted by these special rules regarding similar acts in sexual assault cases, and mindful of their unique legislative history, have not chafed under their implementation in the trials they oversee. (67)
1. The Rules Enabling Act Process
The delegation of power to the Supreme Court in the Rules Enabling Act is clear and complete: it provides that "[t]he Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrates thereof) and courts of appeals." (68) Ordinarily, under the process designed by the Act, the Judicial Conference authorizes the appointment of a standing committee on rules of evidence which reviews recommendations regarding those proposals and makes recommendations to the Judicial Conference. (69) The Act further provides that the Supreme Court:
shall transmit to the Congress not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law. (70)
That is, rules promulgated under this process need only be transmitted to Congress to become effective; Congress's role is a passive one. (71)
Since the enactment of the Rules Enabling Act, hundreds of rules and amendments to rules have taken effect through precisely this process, with the judiciary taking the active role and Congress passively acquiescing. Such a history would be likely to, and in fact did, create a political culture of entitlement on the part of the judiciary that prefigured its response to Congress's assertion of greater autonomy in the area of rulemaking.
2. The Legislative History of Rules 413-415
Rules 413-415 were enacted as part of a larger anti-crime initiative, the Violent Crime Control and Law Enforcement Act of 1994. (72) Prior versions of the amendments appeared as early as 1991, in the Women's Equal Opportunity Act bill, and later, in the 102nd and 103rd Congresses, in the Sexual Assault Prevention Act bills, all sponsored by Representative Susan Molinari and Senator Robert Dole. (73) The Violent Crime Control and Law Enforcement Act was adopted on September 13, 1994, and became effective on July 9, 1995, 150 days after the Judicial Conference of the United States fulfilled its obligation under the congressional directive to "transmit to Congress a report containing recommendations for amending the Federal Rules of Evidence as they affect the admission of evidence of a defendant's prior sexual assault or child molestation crimes in cases involving...
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