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Constructions of Deviance and Empirical Fallacies of Evidence Law: A CriticalLook at the Admission of Prior Sex Crimes by the Accused Under Federal Rules413-414 and their State AnalogsTamara Rice Lave, University of Miami (tlave@law.miami.edu)Aviva Orenstein, Indiana University (aorenste@indiana.edu)This paper looks critically at the sexual propensity rules. We begin by discussing the history andtraditional justifications for Rule 413 and 414, focusing on the assumption that prior sex crimesare particularly probative. We then examine whether the high probative value assigned to priorbad acts in sex cases is supported by the psychological and criminological research on sexoffenders. We focus in particular on recidivism, the effect of age on dangerousness, and the risksthat different offenders pose. We conclude that the overbroad propensity rules are not justifiedby the empirical data. We then discuss whether judges are effective at determining whether anaccused offender is likely to have reoffended. Although we disapprove of Rules 413-414 onmany grounds, only one of which is the overvaluing of such propensity, we are realistic thatthese rules and their state law analogs are here to stay. As such, we offer specific advice tojudges regarding how to use their broad discretion when admitting propensity evidence. Finally,again relying on the psychological evidence, we suggest that even when propensity evidence isrelevant, judges should seriously consider ruling it inadmissible on the grounds of unfairprejudice. Psychologists tell us that prospective jurors are so biased against sex offenders that theaccused will not be able to receive a fair trial as guaranteed by the Sixth Amendment.Disturbing, Distressing, Disgusting, Desired Gruesome Pictures, What’s the Lawto Do with Them?Christina Spiesel, Yale University (Christina.Spiesel@yale.edu)In four thousand years of history of trials in the West (Kadri 2006), I am struck by the elaborateand frequently bloody rituals historically employed by legal authority. Certainly, one intention ofthese devices is to use fear to promote obedience. In addition, however, it is safe to presume thattheir use also serves to satisfy needs – of participants, of leaders, and of followers as theyconstruct the social order by rule-governed display. Now in the twenty first century, Americanlaw has become, in large measure, invisible law. Most cases are now negotiated to settlement orplea bargained or resolved through alternative methodologies for dispute resolution, also takinglegal procedures behind closed doors and out of the public eye. Perhaps in compensation,television entertainment has risen to fill this void, offering crime and its resolution nightly withplenty of disturbing pictures; user generated video presents seemingly unlimited quantities ofdocumentary horribleness on-line as well. In this paper I look at this class of pictures: thedisturbing, disgusting, or gruesome that can come up in either criminal or civil litigation andform an experiential culture that people bring with them to the law. Why use them?240