Using Prior Sex-Related Incidents in California Sex Crimes
This is a big issue in sex crime defense across Los Angeles County and the country. In Los Angeles and California, Evidence Code Section 1108 allows the prosecution to get in other offenses against a criminal defendant in a trial where the person is on trial for a sex-related offense.
These crimes that are being permitted to go in against the defendant are to show that the defendant has the propensity to commit sex crimes. This evidence has never been allowed against any defendant in any criminal case. Still, in sex crime cases, the legislature has carved out this exception to let in other incidences.
This is a very powerful exception because now the government can argue that even if we have a weak case against this particular defendant in our open case against them, look at all this other bad stuff that he's done, so he must be guilty of this crime.
That's a crazy argument — a crazy concept — in criminal defense, and the types of incidences that are getting in are unbelievable. Some of the incidences are convictions. So, you don't have to be convicted of a sex crime offense for them to get an incident against you.
In other words, it could be an allegation. Let's say you go out on a date, and someone claims that you were too aggressive with them and you tried to rape (CALCRIM 1000) them. That case gets investigated, but the police don't file a case because it's a bogus charge against you.
California Evidence Code 1108
Now, you get a new crime — a sex-related offense. You're being tried for that case and in jury trial. Prosecutors will now try to get that other case in against you — parade that case in front of the jury using Evidence Code Section 1108 and say, look what he did to this person — he must be guilty of this new crime.
But wait a minute. He was never convicted of that crime. But that's what this 1108 evidence allows prosecutors to do because they were losing a lot of these sex crime cases, so now they have this weapon, and it is a powerful weapon.
It's the same weapon that got Bill Cosby in his case. They let in a bunch of other cases that weren't charged against him. Maybe they couldn't be charged. Maybe there was an issue with the statute of limitations.
Whatever the case may be, once you pile up a stack of different cases against a person, that tends to have a spill-over effect when a jury decides whether that person is innocent or guilty.
So, the issue becomes, how do you combat this evidence that is permitted against you, even in cases where you haven't been convicted? The answer depends on the type of evidence.
Filing Motion to Prevent Prior Sex Crime Allegations
Sometimes, you have to fight the evidence they're trying to bring against you if the judge lets it in. The first thing I do when they're trying to get evidence against my client that has nothing to do with the charges—in other words, he's not charged with it—is file a motion to say, first of all, this evidence is relevant.
He's not charged with it. Secondly, it will have a prejudicial effect on the jury. They will convict him because of the other evidence, not necessarily because the prosecutors have proven their case beyond a reasonable doubt in the original sex crime case. So, the judge will rule on that motion before any testimony.
If you're successful in the motion, you obviously don't have to worry about it. If you're unsuccessful, you have to decide whether you want to fight this evidence that they're bringing in.
Having a side or mini-trial within the trial that you're doing—or you want to accept it and zero in on the evidence—the weak case that's before you. So, that's a strategic decision that the attorney has to make, depending on the evidence.
Suppose your client has pled guilty to a prior rape charge. In that case, you're going to have an adamant time trying to re-litigate that rape charge because the prosecutor is going to have the advantage against you in the sense that they're going to be able to say, wait a minute.
Why was the person found guilty of this crime? Or why did the person plead guilty? Now, they will try to prosecute that just like they're trying to prosecute this open case they lost before, and they should lose again. That's a tough road to hoe.
So, you have to zoom in on exactly what evidence they're trying to use against you and whether you have a realistic defense related to that evidence.
So, the answer to whether or not prosecutors can get other sex offenses in against you is they can if the judge lets them in if they're relevant to the case. You couldn't get in if somebody committed a murder, for example, when they're being charged with a rape case. That has nothing to do with rape.
But if the person committed some other sex offense and was convicted of it, most of the type prosecutors, number one, are going to try to get it in, and number two, the judge is going to let it in, and now you have to figure out what to do about it.
That's a significant consideration for people when they're deciding whether to take a deal on a sex crime offense or whether the best thing to do is to work out a resolution.
