In 1995, Federal Rule of Evidence 413 became law. It states that “[in] a criminal prosecution in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault [and] [t]he evidence may be considered on any matter to which it is relevant.” Thus, Rule 413 allows evidence of an uncharged sexual assault to show a defendant’s propensity to commit sexual assault. It is an exception to the general ban on propensity evidence set forth in Rule 404(b).

Following last month’s reversal of Harvey Weinstein’s sexual assault convictions, a bill is receiving consideration in the New York State Legislature that would essentially adopt Rule 413 for New York. See NY Lawmakers Seek to Widen Berth for Prior Bad Acts Evidence, NYLJ, 5/10/24. Should it become law?

History