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Prosecutor’s Use of Prior Allegations in California Sex Crimes

Posted by Ronald D. Hedding | Dec 07, 2020 | 0 Comments

Can the Prosecution Enter Evidence Regarding Past Misconduct or Alleged Sexual Assault Allegations to My Current California Sex Crime Case?

The answer depends on the type of evidence the prosecution is trying to get in.

Unfortunately, if you're charged with a sex crime and you have prior conduct that is very similar to the type of conduct alleged in the current case, California Evidence Code 1108 allows the prosecutors to use that prior conduct as evidence against you, though there are some limitations and a whole host of requirements for doing so.

First, the prosecutors must turn the evidence over to your defense attorney, and then, if there's going to be a trial or even a preliminary hearing, the prosecution can try to get the evidence admitted.

Motion in Limine

Your defense attorney can object to the evidence being used at trial by filing what's called a motion in limine, which is a motion that tries to block the evidence from coming in, and the judge will rule on it prior to the trial.

Prosecutor's Use of Prior Allegations in California Sex Crimes

I've had cases where my client had ten prior allegations of different types of sexual behavior that the prosecutors were trying to enter into evidence for a Los Angeles criminal trial, but the judge only let five in.

Allowing prior conduct to be used can easily go overboard and create prejudice against the defendant before the trial even begins. Unfortunately, our legislature allows this to a large degree in sex crime cases under the theory that:

  • if you've done this before, then;
  • prosecutors can attempt to get it in against you in order to;
  • show the behavior is part of the same common plan and scheme in the new case.

Prior conduct can be very damaging to defendants. Jurors do not like defendants who have a whole host of prior conduct, and it tends to spill over into the criminal case.

As a result, if you or a loved one is charged with a sex crime and the prosecutors are trying to get in 1108 evidence against you, make sure you hire an attorney like me who's been practicing now for 27 years and has handled these types of offenses successfully.

Use of Prior Sex Crime Cases That Were Dropped

If a previous sexual assault case was dropped or proven false, will the prosecution still try to use that against me? Yes, the prosecutors will always try to bring in these other cases because priors support their allegations against you.

The question is whether the judge will let these other cases in:

  • if the previous cases went to a jury trial and you were found not guilty of the charges, then;
  • there is a strong possibility we can keep those allegations from being used against you.

If, on the other hand, the allegations were simply investigated but didn't produce enough evidence to prosecute you, that's not going to stop those charges from coming in during your current case.

The prosecution does this all the time—they get a bunch of weak cases and use those in a new case to try to secure a conviction against a defendant.

When the judge decides whether to allow these prior allegations to be used as evidence, they will consider whether the conduct seems to be a common plan and scheme, or whether the defendant is doing something similar or exactly the same as in the previous cases.

Use of Non-Sexual Related Charges

Can the prosecution bring up other non-sexual charges against me, such as an assault charge or a burglary charge?

It would be highly unlikely in a sex crime case for the prosecution to bring up non-sex-related offenses, unless they can somehow make a tie-in between the current case and the prior offense.

Use of Non-Sexual Related Charges in California Sex Crime Cases

Under Section 1109 of the Evidence Code, prosecutors can sometimes use offenses involving violence to mount an argument that your prior violent conduct can come in against you in the current offense. It's much more difficult to get this type of evidence in. If it was my case, I would obviously be:

  • filing a motion to block the prior offense from coming in;
  • due to the spillover effect, which;
  • makes these other non-related instances highly inflammatory and prejudicial to the defendant.

The prosecution's case should rise or fall on its own merits, which is the biggest argument the defense has.

In other words, the prosecutors are only trying to use those other cases because they don't have the evidence to prove their current case.

When their position stinks, they'll try anything they can to dirty the defendant, to impugn their character, in order to get a conviction. All the more reason why a good defense attorney fighting on your side to block that evidence is key.

Rape Shield Law in California

If the alleged victim has made allegations that proved to be false before, can we use that information in the current sex crime case?

In Los Angeles, California, there's something called a rape shield law, which is intended to protect victims involved in past incidences from having the defense use that against them in the current case.

If the defense were to try to get in evidence of prior allegations made by the alleged victim, the prosecutor would cite this rape shield law.

It's up to the defense attorney to navigate around the rape shield law by casting doubt on the current case due to the false allegations made previously.

If the defense can compare the current facts to the prior case when the alleged victim made false allegations and show that there are similarities, that would present a strong argument that the alleged victim is once again making up false allegations. Successfully getting around the rape shield law would depend on:

  • the facts and circumstances of the current case,
  • what evidence the prosecution is trying to get in, and
  • what happened in the other case.

Let's say that the alleged victim testified in a previous trial, and their testimony was found by the judge to be perjured testimony. Then that would certainly be evidence to show the alleged victim is capable of lying under penalty of perjury.

The defendant's only chance of getting this evidence admitted into the current trial, however, would be a skilled defense attorney researching the prior case and being ready to confront the alleged victim with this information on the stand.

When the prosecution objects, the defense has to be ready to convince the judge to allow the false allegation as evidence for this particular sex crime case.

Criminal Defense for California Sex Crimes

You can put yourself in a better position by hiring an attorney like me who's been doing this for a long time and has successfully challenged this prior evidence from coming in.

Criminal Defense for California Sex Crimes

It's important to remember that prior allegations are extremely damaging in a criminal jury trial. Los Angeles jurors tend to believe that where there's smoke, there's fire.

If you've been accused of a sex-related offense in the past and you have a new offense now, it's more likely than not that you will be found guilty.

You obviously want to do everything you can to block that evidence from coming in.

Hedding Law Firm is a criminal defense law firm located in Los Angeles County at 16000 Ventura Blvd #1208 Encino, CA 91436. Contact our office for a free case evaluation at (213) 542-0979.

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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