This Note argues that the federal circuits’ current approaches in applying the FRE 403 balancing test in the context of FRE 413–415 are inadequate to ensure the constitutionality of FRE 413–415. Under the FRE 403 balancing test, evidence is inadmissible only if the probative value of the evidence is substantially outweighed by a danger of unfair prejudice. Federal circuits rely on FRE 403’s balancing test as the constitutional guarantor for FRE 413–415, which allow the admission of evidence of the defendant’s prior sexual assaults or child molestation, despite its significance of propensity reasoning and huge potential to mislead the jury. In addition, this Note introduces and provides detailed analysis on the current approaches used by different federal circuits in applying the FRE 403 balancing test to evidence admissible under FRE 413–415. Finally, this Note proposes a new approach for federal circuits where the lower-threshold, proexclusion balancing test utilized in FRE 609(a)(1)(B) is applied in the context of FRE 413–415. The new approach, which is a combination of the balancing test utilized in FRE 609(a)(1)(B) and five factors set forth in United States v. LeMay, takes into account both the Congressional intent to admit evidence of the defendant’s prior sexual misconduct and the unfair prejudice of propensity reasoning that character evidence of this kind can generate.
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