- United States
Fred LeMay, a 24 year old Native
American Indian, sexually assaulted his two sisters who were 5
and 7 at the time.
His sisters children were 7 and 9.
They testified to the assault.
Cross-Examination (Boys had motive)
LeMays counsel suggested that the
boys did not remember the events accurately.
They had motive to lie, because they
were in foster care and wanted to return home.
Prosecution (Past Rape Conviction)
Then was permitted to introduce
testimony that the Df had a juvenile rape conviction stemming
from two 1989 sexual assaults of a 2 year and eight month old
Trial judge conducted a 403
Admitted evidence under FRE 414.
LeMay Due Process
Contends that admitting this
evidence was a violation of his due process.
changes this general rule with respect to child
It makes such evidence admissible,
criminal case in which the defendant is accused of an
offense of child molestation,
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
LeMay Rule 414 violate due process
The traditional rule preclude prior
bad acts to prove his disposition to commit the type of crime.
LeMay has a very high burden of proving a due process
It was not met.
In Dowling v. United States,
The Court held that a rule or
practice must be a matter of "fundamental fairness" before it
may be said to be of constitutional magnitude.
The defendant determines if the rule
is deeply rooted not the State.
- No shown
LeMay has NOT shown that the
traditional ban on propensity evidence involves a "fundamental
conception of justice."
Determining if a rule if fundament as to be embodied in the
This determination is a historical
Does not lead to a clear conclusion.
Courts have routinely allow
propensity evidence in sex-offense cases.
States that do not have FRE 414
415, will stretch 404(b) by resorting to the so-called lustful
Nothing Fundamentally unfair about allowing propensity
evidence under FRE 414.
As long as FRE 403 protections
remain in place.
District judges retain the
discretion to exclude evidence that is far more prejudicial than
With FRE 403 intact, LeMay loses
much of his force in his due process challenge.
Molestation Evidence indisputably relevant
The introduction to relevant
evidence is not a constitutional violation.
Rule 404(b) to prove preparation,
identity, intent, motive, absence of mistake or accident, and
for a variety of other purposes.
When it is unconstitutional?
Only if its prejudicial effect far
outweighs it probative value.
- LeMay's prior acts of molestation
Admitting was proper.
The evidence of LeMay's prior acts
of child molestation was highly relevant.
The 1989 molestations were very
similar to the charged crimes.
Each case involved forced oral
In each case the victims were young
relatives of LeMay, and each instance occurred while LeMay was
Prior acts bolster victims credibility, after LeMay said they
The prior acts evidence was relevant
to bolster the credibility of the victims after LeMay suggested
they could be fabricating the accusations.
11 years had passed between LeMays
abuse of his nieces and his trial for the abuse of D.R. and A.R.
There was also evidence of another
incident, which suggest frequency
Have little relevant in this case.
Relevance of prior acts was in the details (Necessity Factor)
Francines testimony was necessary
to establish that LeMays 1989 molestations were similar.
Her testimony was necessary to fill
in all the details.
The record shows that the district
judge struck a careful balance between LeMay's rights and the
clear intent of Congress that evidence of prior similar acts be
admitted in child molestation prosecutions