The 1999 Sexual Assault Reform Act of 1999 proposed the addition of section 60.41 to Article 60 of the New York Criminal Procedure Law to allow prosecutors in sexual assault prosecutions to introduce evidence of a defendant's previous commission of any "offense or offenses of sexual assault.., on any matter to which it is relevant, including the defendant's propensity to commit an offense of sexual assault or the credibility of the alleged victim of the sexual assault . ." The author argues that this law would upset a century of New York law under the Molineux rule, which holds that prosecution may not introduce evidence of prior crimes solely to demonstrate a defendant's propensity to commit crime or to bolster credibility of a witness. The article examines the basic principles of the Molineux rule, and reviews U.S. Supreme Court and New York State Court of Appeals authorities that suggest a constitutional basis to the ban on criminal propensity evidence, as well as two Tenth Circuit opinions upholding the facial constitutionality of Federal Rules of Evidence 413 and 414. The article also examines decisions upholding the California Evidence Code, modeled on FRE 413 and 414. Finally, the author raises a number of questions about the constitutionality of CPL section 60.41, including: (1) the ambiguous historical practice of admitting propensity-type evidence in sexual assault prosecutions; (2) the impact of criminal propensity evidence upon the presumption of innocence and the prosecution's burden of proof, despite its argued probative value; (3) the evidentiary disparity that may exist between application of the proposed CPL section 60.41 and the Rape Shield Act; and (4) the questionable ability of courts to "balance" the prejudice of true criminal propensity evidence.



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