In 1994 Congress enacted Federal Rules of Evidence 413-415 into law. (These Rules went into effect in 1995.) Rules 413-415 openly proclaimed that some criminal conduct of a person on another occasion (criminal conduct of a sexual nature) could be used by the trier of fact to determine whether or not the person had engaged in some sexual wrong that is at issue in some trial. Although the workings and wrinkles of the preexisting character evidence rule, the traditional prohibition against "circumstantial" use of "uncharged" crimes and wrongs, was often more pretense than reality -- particularly in cases involving charges of criminal sexual wrongdoing against children -- Rules 413-415 were, at an important level, a major break with the traditional body of evidence law and principles in criminal cases -- precisely because these Rules openly sanctioned a major breach in the traditional character evidence rule, whose gist is effectively if somewhat misleadingly conveyed by the saying that a person must be tried for what the person did, not for what the person is.
The enactment of Rules 413-415 was preceded, accompanied, and followed by much controversy: the U.S. legal academic community -- that part of it that spoke out, in any event -- stood virtually unanimously in opposition. This opposition raised a number of fundamental questions, questions about the workings of the American adversary criminal justice system, the capacities and limits of the jury, the basic purposes of nonconstitutional exclusionary rules in general and the character or propensity rule in particular, the empirical underpinnings and assumptions underlying both the traditional character evidence prohibition and Rules 413-415, and, finally, the extent or nature of constitutional constraints on rules of evidence in criminal cases.
The multi-pronged academic assault on Rules 413-415 failed. After the Rules were enacted, the only effective practical form of opposition to the Rules was by an assault on the constitutionality of the Rules. (Repeal of the Rules was and is a political impossibility.) Courts, however, uniformly rejected the claim that Rules 413-415 violate the federal constitutional due process guarantee or other federal constitutional rights. See, e.g., United States v. Meacham, 115 F.3d 1488 (10th Cir. 1997). (It may be sobering -- to academics, in any event -- to see how cursory judicial discussions of this constitutional question were and are in comparison with the typical academic treatment of the matter in law journals.)
One important lingering question (there are others) is whether Federal Rules of Evidence 413-415 did or did not portend a major shift in the direction of the law of evidence in general or in the character evidence prohibition (and related legal principles such as relevance and undue prejudice) in particular. Or will it turn out, in the very long run, that Rule 413-415 were an eruption born of a particular political constellation in Congress at a particular time and largely limited to a particular sector of the America legal process, to federal trials involving claims of sexual wrongdoing? What is relatively clear is that Rules 413-415, despite their importance in their own domain, did not usher in a quick, sweeping, and widespread change in the law of evidence or in the way that civil and criminal wrongs and rights are tried in the United States. But did Rules 413-415 leave a mark on the way the legal profession thinks about evidentiary processes in adversary adjudication?
Coming soon: the law of evidence on Spindle Law