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Can Prosecutors Get Non-Charged Sex Offenses In at Trial?

Posted by Ronald D. Hedding | Sep 30, 2019

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.

Evidence Code Section 1108 allows the prosecutors to bring in uncharged conduct as long as it's a sex offense.  You don't have to be convicted of any crime.  It could just be an allegation.  I see a lot of sex crimes being charged and then the prosecutors giving notice to the defense attorney that they're going 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 the prosecutors as far as getting in damaging evidence against a criminal defendant because it ends up being 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 there are multiple fronts where the defense attorney is trying to attack multiple witnesses depending on how many 1108 witnesses the Judge lets in. Then that starts to have a spill-over effect in the charges that are the subject matter of the trial because the reality is jurors are just humans.

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.

Balancing the Prejudicial Effect

This is probably one of the most unfair things that I've seen in practicing criminal defense for twenty-five years.  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.

So, hopefully, eventually, the appellate court will ultimately realize how idiotic some of this evidence is because what's happening is that people are getting convicted of crimes they would usually be found not guilty of.

In other words, the prosecutors can't prove a particular crime beyond a reasonable doubt, so what they do is bring in all of this bad 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.

So, if you've got one of these cases, you better get with a good attorney who's been down this road before and can advise you of your best strategy because going to trial is not an easy road, and you have to have your evidence in line and be confident with your case.

About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.

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