The answer to this question is absolutely yes, and that's one of the biggest weapons they have in criminal prosecutions is to try and see if the person they are accusing of a sex crime — whatever the crime may be — whether it be rape or any other crime — and see if they have any prior criminal record related to sex offenses.
The formidable power of evidence, Code Section 1108, is evident in its allowance for prosecutors to introduce uncharged conduct, as long as it's a sex offense. This means that even a mere allegation, without any conviction, can be used against the defendant. It's a common sight to see sex crimes being charged, followed by prosecutors notifying the defense attorney of their intent to bring in prior sex offenses related to other alleged victims.
Propensity Evidence Against a Criminal Defendant
Many of these sex offenses are charged crimes and have been convicted. Those are much easier to get in than a non-charged crime. Other crimes are non-charged crimes. Either there was a weak case, or the alleged victim didn't report it to anybody.
Whatever the case may be, the problem is, this Evidence Code Section 1108 allows the prosecutors to get in what's called propensity evidence against a criminal defendant in a sex crime case.
You can't get that type of evidence in any other case except maybe domestic violence; you could get proof if the person has a propensity to commit other violent acts. Even that is limited, but this is the biggest opening I've seen for prosecutors in terms of introducing damaging evidence against a criminal defendant, as it ultimately becomes a trial within a trial.
In other words, not only does the person have to defend the serious sex crime charges that carry a stigma right from the beginning, but they also have to defend other allegations.
So, what ends up happening is that there are multiple fronts where the defense attorney tries to attack multiple witnesses, depending on how many 1108 witnesses the judge allows in. Then that starts to have a spillover effect on the charges that are the subject matter of the trial, because the reality is that jurors are just human.
They're going to say, Why are so many people coming forward against this guy? He must be guilty of something. We only have him charged with one thing, so we might as well find him guilty of that.
Balancing the Prejudicial Effect
This is probably one of the most unfair things I've encountered in my twenty-five years of practicing criminal defense. But whether I think it's unjust or you think it's unfair or whether anybody thinks it's unfair doesn't matter because the prosecutors are allowed to do it, and the Judges let this evidence in.
The only thing is they have to balance the prejudicial effect, how long ago the incident occurred, how it will impact the trial, but the Judge can say, I considered it, and I'm letting it in, and there's not much you can do about it.
Hopefully, the appellate court will eventually realize the absurdity of some of this evidence, as people are being convicted of crimes for which they would usually be found not guilty.
In other words, the prosecutors can't prove a particular crime beyond a reasonable doubt, so they bring in all this negative baggage against a criminal defendant. The jury is so disgusted by it that they convict the guy, regardless of the strength or weakness of the underlying offense.
Given the complexities and challenges of these cases, it's crucial to seek the guidance of a seasoned attorney who has navigated this terrain before. They can help you devise the best strategy for your defense, as going to trial is a daunting journey that requires meticulous preparation and unwavering confidence in your case.
