Propensity Evidence Re-Invigorated: The Second Circuit Affirms Expansive Use of Federal Rules 413-415 and Narrow Review of Evidentiary Rulings

Introduction

The consolidated opinions in Carroll v. Trump, 124 F.4th 140 (2d Cir. 2024), and the Court’s 2025 denial of rehearing en banc, mark the most significant Federal Court of Appeals pronouncement on Rules 413-415 in more than a decade. By a 6-4 vote the active judges refused en banc review, leaving intact a panel decision that:

Upholds the admission of decades-old propensity evidence of sexual misconduct under Rules 413-415.
Endorses admitting the infamous “Access Hollywood” recording alternatively under Rule 404(b) to prove “pattern” and “corroboration.”
Declares that Rule 403’s balancing test rarely requires exclusion of remote sexual-assault evidence because Congress “deliberately declined” to impose temporal limits in Rules 413-415.
Rejects broad challenges to the district court’s exclusion of evidence offered to defeat “actual malice” in a public-figure defamation claim.

The opinions splinter the court: a four-judge concurrence (Pérez, J.) affirms deferential review; a two-judge dissent (Menashi, J.) warns the ruling “eviscerates” Rule 404(b), “rewrites” Rule 403, and converts “simple assault” into “sexual assault.” A separate statement by two senior judges (Chin & Carney) defends the panel and emphasises limits of en banc procedure.

Summary of the Judgment

Donald J. Trump appealed a $5 million civil verdict for sexual assault and defamation. He argued that the district judge (Kaplan, J.) erred by:

Admitting three categories of “other-act” evidence—the Access Hollywood tape, testimony of Jessica Leeds (1978 airplane incident) and of Natasha Stoynoff (2005 Mar-a-Lago incident).
Excluding material relevant to show Carroll’s alleged political motive and Trump’s subjective belief (“truth/actual malice” defence).

A unanimous three-judge panel affirmed. After a poll, the full court refused rehearing en banc; concurring judges said no “exceptionally important” question existed, while the dissent argued the panel “embraced anomalous holdings” that conflict with precedent and endanger evidentiary fairness.

Detailed Analysis

A. Precedents Cited and Their Roles

United States v. Tsarnaev, 595 U.S. 302 (2022) – recited for the “manifest abuse-of-discretion” standard governing evidentiary review.
United States v. Schaffer, 851 F.3d 166 (2d Cir. 2017) – earlier Second Circuit recognition that Rules 413-415 create “an exception to the general ban on propensity evidence,” yet still subject to Rule 403.
United States v. Larson, 112 F.3d 600 (2d Cir. 1997) – guide for evaluating remoteness under Rule 403; the panel read it as permitting very old allegations.
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) – sets “actual malice” standard. The dissent says excluded evidence was vital under Sullivan.
Multiple Rule 404(b) “modus operandi” cases (Benedetto, Berkovich, Smith) weighed by the dissent to show conflict with panel’s broader reading.

B. The Court’s Legal Reasoning

1. Applicability of Rules 413-415

The panel accepted the district court’s threshold findings that all three “other acts” were “crimes” or “attempts” of sexual assault as defined in Rule 413(d). Key logical steps:

“Sexual assault” need not be labelled as such by statute; any crime involving non-consensual sexual contact—or an attempt to commit such contact—qualifies.
The Leeds incident—although charged under contemporary simple-assault statute 18 U.S.C. §113(e)—could reasonably be viewed by a jury as an “attempt” to make non-consensual genital contact (Rule 413(d)(5)).
The Stoynoff incident satisfied Florida battery law and likewise could be an “attempt” under Rule 413(d)(5).
Because Congress purposefully omitted any statute-of-limitations analogue, remoteness (45 years for Leeds) does not extinguish probative value.

2. Rule 403 Balancing

The panel reiterated that Rule 403 applies, but “great deference” to trial judges means reversal only if balancing is “manifestly erroneous.” Citing legislative history (Rep. Molinari) as corroborative, it held the district court reasonably found probative value not substantially outweighed by prejudice—even for decades-old acts.

3. Admission under Rule 404(b)

For the Access Hollywood tape, the panel offered an independent ground. It viewed the recording as:

Evidence of a pattern of sudden non-consensual kissing/grabbing that “corroborated” Carroll’s account.
Proof rebutting Trump’s claim that Carroll fabricated the assault (“act in accordance with plan,” not “bad character”).

Thus, even if Rule 415 were misapplied, admission was harmless or permissible under Rule 404(b).

4. Exclusion of “Actual-Malice” Evidence

Trump proffered cross-examination and documents suggesting Democratic donor funding, delayed DNA searches, and coaching of witnesses. The panel held the district court acted within discretion to constrain the material as cumulative or minimally probative of credibility. The concurrence stressed appellate restraint; the dissent believed the exclusion gutted Trump’s Sullivan defence.

C. Impact of the Judgment

Wider Admissibility of Old Allegations – Litigants in sexual-assault civil suits (and criminal prosecutions via Rule 413/414) may now cite Second Circuit authority admitting 40-plus-year-old accusations.
Broad Definition of “Sexual Assault” – Even conduct chargeable only as common assault can qualify if the jury could see an “attempt” at sexual contact. This lowers threshold for Rule 415 admission.
Elevated Deference on Appeal – The majority reiterates that evidentiary decisions seldom warrant reversal; appellants must show both abuse and substantial influence on the verdict.
Defamation Strategy – Defendants relying on “no actual malice” may face stricter trial-court gatekeeping of motive/bias evidence, with limited appellate recourse.
Potential Circuit Split Brewing – Menashi’s dissent signals tension with Eighth, Ninth, and Tenth Circuit cases requiring closer Rule 403 scrutiny and distinctiveness for modus-operandi evidence. Future petitions for certiorari may invoke this dispute.

Complex Concepts Simplified

Actual Malice (Defamation): A plaintiff who is a public figure must prove the defendant knew the statement was false or recklessly ignored its truth.
Rule 404(b) vs. Rules 413-415: Rule 404(b) generally bars “bad character” evidence unless it shows motive, intent, identity, etc. Rules 413-415 are special exceptions allowing propensity evidence in sexual-assault/child-molestation cases, subject to Rule 403.
Rule 403 Balancing: Even relevant evidence must be excluded if its unfair prejudice “substantially outweighs” probative value. The scale tips only when prejudice is very high relative to usefulness.
Propensity Evidence: Proof offered to show “because the person did X before, they probably did it again.” Normally inadmissible—but permitted under Rules 413-415 for sexual offences.
En Banc Review: Rehearing by all active circuit judges, granted only for intra-circuit conflict or questions of exceptional importance. Here denied because majority saw neither.

Conclusion

The Second Circuit’s disposition in Carroll v. Trump cements a notably liberal approach to admitting propensity evidence under Rules 413-415, tolerates extreme temporal remoteness, and underscores the narrow scope of appellate review for evidentiary rulings. While the dissent highlights doctrinal tensions—particularly around Rule 403 and definition of “sexual assault”—the precedential effect is clear: future litigants in sexual-assault contexts within the Second Circuit will find it easier to introduce prior allegations, and defendants will face steeper barriers on appeal. Whether the Supreme Court will intervene to harmonize the federal circuits remains an open, and increasingly pressing, question.