California Evidence Code Sections 1101 and 1108 become relevant when you're talking about prosecutors that have filed a criminal sex crime case against somebody, and they're trying to use that person's past against them.

It's not just past criminal convictions for sex crimes; it could just be past evil acts related to sex crimes that were not even charged.  So, they're going to give the defense the police reports or whatever information they have associated with those prior sex crimes because they're giving the defense notice that they're going to try to use those sex crimes against their client.

Filing a Motion in Limine

I've seen them used at the preliminary hearing.  I've seen them used in the trials.  If they're going to use them in the trial, you don't want them used against your client. The defense attorney will have to file a motion in limine to block the prosecutor from using those prior sex-related offenses.

Because what the prosecutors are trying to do is poison the jury's mind against the defendant so that when they start to deliberate and evaluate the actual charges in the open case, they're so disgusted, angered, prejudiced, and inflamed about the defendant's prior bad-act behavior that they're more likely to find the person guilty of the case(s) that they're charged with.

A jury instruction says you can consider that prior case or cases if the prosecutors have proved those cases by a preponderance of the evidence.  So, in other words, 51% is just one of the factors you're considering in deciding whether the person is innocent or guilty.

California Evidence Codes 1101 and 1108

Those cases, or that case alone — the California Evidence Code 1101 or 1108 — cannot be used to find the person guilty.  They can't just say, well, he was guilty of this, so he's guilty of the other thing.

They have to have independent evidence that meets all the elements of the crime, and they have to find the person guilty beyond a reasonable doubt to get a conviction in the case.

Of course, the problem is that when they get that kind of evidence, they're usually so angered and so disgusted, and they're much more likely to find the person guilty of the crime or crimes that they're charged with. Interestingly, I've been doing this for twenty-five years — the rule would always be that you couldn't use a person's prior record even in a sex crime case in Los Angeles.

You couldn't use a prior sex-related offense to say that because they committed that sex offense or offenses, they must have a propensity to commit the latest crime.  But now, Evidence Code Section 1108 has changed that.

It directly speaks to saying that you can consider propensity evidence.  You can say, look, he did this sex crime, so he must be guilty of the other one.  It makes it okay.  Section 1101 always ruled and is still relevant, with certain factors that allow the prosecutors to argue to the jury in a criminal sex crime case in Los Angeles that the person used a specific joint plan and scheme to commit these prior sex offenses. We believe that the new charge is the same standard plan or strategy, and you're allowed to consider it for that purpose.

Case Examples

There are other examples.  There's intent on showing the person's intent.  Suppose somebody brushes by a person, touches them in their private part and then tries to claim that it was an accident or mistake.

The prosecutors can use prior cases where the person has done similar conduct.  They say, see, he did it before on this occasion; now look, he's doing it again.  It's not an accident.  It's not a mistake.  He intended to touch the person privately and be convicted for it.

They also could be used to show motive and opportunity.  Signature crimes where the person does the same type of signature every time he commits the crime.  So, there's a lot of different ways, especially in sex crime cases, that prosecutors can get in these other acts.

California Evidence Code Section 352

The only balance against it is Code Section 352, which forces the Judge to weigh.  On the one hand, the Judge will consider the evidence trying to be admitted against the defendant as a prior evil act and see how relevant it is; see how probative it is.

Then once the Judge decides how relevant it is to the case, that will be weighed against its prejudicial effect.  In other words, how much is it going to inflame the jury improperly?

That's where some attorneys get confused.  They're yelling and screaming, this is horrible for my client, and the Judge is going to say, that's precisely why it's being admitted because it does show your client has committed these types of offenses in the past and is more likely to do it again.

That's 1108 right there.  It does make him look bad about a standard planner scheme.  He does the same thing every time — picks the same type of victim and does the same thing.  That makes him look terrible, and the Judge is going to say that's precisely why it's coming in against your client.  It does make him look awful, and that is a permissible use.

It's the use that is not permissible that you're trying to argue to the Judge that this is very prejudicial.  It's going to inflame the jury.  It's going to take up a bunch of time.  That's another argument that can be made.  This usually is and two-three day trial.  With all this other evidence that he's not even charged with, it's now going to make a week-two-week trial.  So, that's an argument that the Judge is supposed to weigh and balance.

Blocking Damaging Evidence

Because this 1108 or 1101(b) Evidence Code Section evidence can be so damaging, it's imperative that you get out in front of the evidence, realize what it is and get an argument together to try to block this evidence from coming in against your client.

This is something that you want to talk to your attorney about and decide whether it makes sense for you to go to trial if there's a strong possibility that this other flawed sex act evidence will come in against you.  The best way to figure that out — the best way to make a decision — is, to be honest about that evidence.

Look at the evidence.  Talk about it and see what type of impact it's going to have if it does come in against you and what are some moves that can be made to try to block or defense this evidence.

This is the problem with this 1101 and 1108 Evidence Code Section evidence in Los Angeles is that most of the time, the Judges let it in, and it ends up being a trial within a trial.  So, now you're trying to fight off evidence that you're not even charged with while at the same time trying to defend yourself in the open criminal case.

That's why the prosecutors bring this evidence in.  They know how damaging it can be.  They know how it can cause the jury to think about that evidence instead of the evidence in your case.

Retaining an Experienced Criminal Lawyer

I often see the prosecutors bringing in prior evil acts in a weak case.  They don't have a good chance against the person, but they've got this other evidence, and they're hoping — improperly by the way — that this evidence is so bad, so damaging, it makes the defendant look so bad, that all-in-all, the jury's going to say, I don't care if they have a weak case.

This guy's a bad guy.  Look at all of this bad stuff that he did.  I'm going to find him guilty.  That's an impermissible use of 1101, 1108 evidence, but it happens all the time in courtrooms across Los Angeles County.

So, you need to be aware of this.  You need to make sure you hire a criminal defense attorney that knows how to handle these types of cases — knows how to advise you so that you can end up with the best possible result in your sex crime case in Los Angeles.