Balancing Interests under Washington's Statute Governing the Admissibility of Extraneous Sex-Offense Evidence

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Abstract: American courts traditionally exclude evidence that a defendant has committed crimes other than the crime with which the defendant is charged. This rule, with exceptions, is codified as Federal Rule of Evidence 404(b) and Washington Evidence Rule 404(b). However, courts and legislatures have increasingly adopted the view that evidence of other sex offenses should be admissible in sex-offense prosecutions. The Washington State Legislature recently adopted a statute, RCW 10.58.090, which governs the admissibility of evidence of other sex offenses. This Comment argues that Washington courts should use precedent applying Rule 404(b) as a guide in applying robust Rule 403 balancing under the new statute. This interpretation of the statute is consistent with its legislative history, preserves the traditional gate-keeping role of trial courts in evidence-admissibility determinations, and avoids a potential separation-of-powers question about which branch of government has ultimate authority over evidentiary rules in Washington.


Seventy-nine-year-old Roger Schemer was tried and convicted in King County Superior Court for molesting a relative when she was seven years old.1 Trial testimony revealed that Scherner had also molested other young girls, all of them either family members or daughters of family friends, over a period of several decades.2 In addition to the victim's testimony, jurors heard four previous victims recount the abuse they had suffered as young girls.3 Their testimony was admitted under a new Washington evidence statute, section 10.58.090 of the Revised Code of Washington (RCW), which makes it easier for prosecutors to submit evidence of other sex offenses in sex-offense cases.4

When a defendant is charged with a sex offense, the new law allows evidence of other sex offenses to be admitted, notwithstanding the traditional bar on extraneous offense evidence. Defense attorneys who observed Schemer's trial said they expect the law will soon face challenges in Washington appellate courts.5 These challenges will likely question not only the applicability of the statute in cases where the evidence of other sex offenses is not as factually similar as it was in State v. Scherner, but also the Washington State Legislature's authority to enact rales of evidence that conflict with judicial rules.6

This Comment argues that Washington courts should interpret the new statute in a way that preserves the trial court's traditional gatekeeping role in evidence admissibility determinations. The statute requires trial courts to determine whether the probative value of evidence of other sex offenses is outweighed by the danger of unfair prejudice under Rule 403. 7 Washington courts should use the Washington State Supreme Court's well-developed body of case law governing the admission of evidence of other sex offenses under Rule 404(b) to guide Rule 403 balancing under the new statute. This interpretation respects the legislature's judgment that evidence of other sex offenses is different than other types of propensity evidence. It is also consistent with the text and legislative history of the statute, and avoids difficult separation-of-powers questions about the authority of the legislature and judiciary to promulgate evidentiary rales.

Part I of this Comment reviews the general bar on evidence of other offenses in American law and exceptions specific to sex-offense cases. Part II describes Federal Rules of Evidence 413 and 414, which deal with sex-offense evidence in the federal courts, and analyzes the cases construing these rules. Part II also discusses similar evidentiary provisions enacted by states. Part III summarizes Washington law that addresses the respective powers of the Legislature and Judiciary to promulgate evidence rales. Part IV describes RCW 10.58.090 and summarizes its legislative history, while Part V describes the approach Washington courts have taken with regards to evidence of other sex offenses under Rule 404(b). …


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