United States v. Warren

BROSMAN, Judge

(concurring in the result) :

Although I accept my brothers’ disposition in this case, there are several expressions and implications found in Section III of the principal opinion with which I cannot agree unreservedly. For this reason I am required to dissociate myself from the contents of this part of it and to concur in result only.

I do not understand the majority to limit the admission of evidence of similar misconduct in sexual cases either to antecedent acts or to those between the same parties — this for every purpose and under all circumstances. If I did not read the opinion thus, it would be necessary that I qualify my action further. I have no sort of quarrel with the finding of error here — but it must not be forgotten that other misconduct possessing features in common with the act charged may be offered in such cases under a number of theories and to serve widely differing probative aims. See Wigmore, Evidence, 3d ed, §§ 300 et seq, 357 et seq, and 394 et seq. 1 am, therefore, anxious that, unlike some courts, we avoid overgen-eralization.

I am sure that Judge Latimer is wholly free from guilt here. Indeed, unless I mistake him, he does not hold outright that evidence of like misconduct is admissible in any trial for a sexual crime as such. For my part, I would be willing to go further than he does, and to admit various sorts of it in many cases of this genre.