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The Judicial Conference has asked Congress to reconsider the addition of three new rules to the Federal Rules of Evidence as contained in last year's crime bill, P.L. 103-322. The rules' implementation was delayed to allow for the Conference's review and recommendations.

New Evidence Rules 413, 414, and 415 would admit evidence of a defendant's prior sexual assault or child molestation acts in civil or criminal cases involving sexual assault or child molestation. By forwarding its views with its alternative recommendations to Congress on February 9, 1995, the Conference automatically delayed the implementation of the new Rules 413-415. They will now take effect 150 days after transmittal of the report, unless Congress adopts the Conference's recommendations or provides otherwise by law.

The Conference, through its Advisory Committee on Evidence Rules, conducted an expedited but thorough review of the new rules. This review included a solicitation of public comment from all federal judges, approximately 900 evidence law professors, 40 women's rights organizations, and 1,000 other individuals and interested organizations.

The Advisory Committee on Evidence Rules submitted a report to the Conference Committee on Rules of Practice and Procedure (Standing Committee). The report concluded that the new rules were unnecessary and could diminish significantly the protections that safeguard persons accused in criminal cases and parties in civil cases from undue prejudice. The committee was concerned that the new rules would lead to more convictions based on past-as opposed to charged- behavior, particularly if the admission of such evidence was mandatory. Many public commentators had asserted that the Rule 403 balancing test was eliminated under the new rules, apparently depriving a judge of any discretion in deciding whether to exclude such evidence. The committee also noted that rebutting evidence of prior bad acts would lead to trials within trials.

The Advisory Committees on Criminal Rules and Civil Rules agreed with the Advisory Committee on Evidence Rules's report and opposed the new rules. The Standing Committee approved the report of the Advisory Committee on Evidence Rules. The Judicial Conference unanimously agreed by mail ballot and recommended that Congress reconsider its decision. If Congress chooses not to alter its decision, alternative amendments incorporating the provisions of new Rules 413-415 as amendments to Rules 404 and 405 were proposed.

The alternative amendments would eliminate ambiguities and possible constitutional infirmities contained in the new rules 413, 414, and 415. The alternative amendments would:

- expressly apply the other rules of evidence to evidence offered under the new rules;

- expressly allow the party against whom such evidence is offered to use similar evidence in rebuttal;

- expressly enumerate the factors to be weighed by a court in making its Rule 403 determination;

- render the notice provisions consistent with the provisions in existing Rule 404 regarding criminal cases;

- eliminate the special notice provisions of Rules 413-415 in civil cases so that notice will be required as provided in the Federal Rules of Civil Procedure; and

- permit reputation or opinion evidence after such evidence is offered by the accused or defendant.

Copies of the report may be obtained from the AO Rules Committee Support Office at (202) 273-1820.

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