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Using Prior Sex Related Incidents in California Sex Crimes

Can Prosecutors Get Prior Sex-Related Incidents In Against a Defendant in a Sex Crime Case?

This is a big issue in sex crime defense across Los Angeles County and across the country.  In Los Angeles and in 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.

Defendant's Propensity to Commit Sex Crimes

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 type of evidence has never been allowed in against any defendant in any criminal case, but in sex crime cases the legislature has carved out this exception to allow in other incidences.

This is a very powerful exception because now the government can make the argument 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 type of incidences that are getting in are unbelievable.  Some of the incidences are conviction.  So, you don't actually have to be convicted of a sex crime offense for them to get an incident in 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, the police don't file a case because it's basically 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 you're 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.

California Evidence Code 1108

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 a statute of limitations issues.

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 it comes to a jury deciding whether that person is innocent or guilty.

So, the issue becomes how to you combat this evidence that is permitted in against you, even in cases where you haven't been convicted?  I think the answer to that is, it depends on what type of evidence.

Filing Motion to Prevent Prior Sex Crime Allegations

Sometimes you have to fight the evidence that they're trying to bring in against you if the judge lets it in.  The first thing I do when they're trying to bring in evidence against my client that has nothing to do with the charges — in other words, he's not charged with it, I file a motion to say, first of all this evidence is relevant.

He's not charged with it.  Secondly, it's going to have a prejudicial effect on the jury.  They're going to convict him because of the other evidence and 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 then obviously don't have to worry about it.  If you're unsuccessful, you have to make the decision whether you want to fight that this evidence that they're bringing in.

Basically having a side or mini trial within the trial that you're doing — or you want to just accept it and zero-in on the evidence — the weak case that's before you.  So, that's a strategic decision that has to be made by the attorney, depending on the evidence.

If your client has pled guilty to a prior rape charge, you're going to have a real tough 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 of the crime?  Now they're going to try to litigate that just like they're trying to litigate this open case they lost before and they should lose again.  That's a real tough road to hoe.

Contact Hedding Law Firm for Help

So, you have to zoom-in on exactly what evidence is it that they're trying to get in 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, absolutely 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 big 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.

Hedding Law Firm is a top-ranked criminal defense law firm located at 16000 Ventura Blvd #1208 Encino, CA 91436. We also have an office at 633 West Fifth Street Los Angeles, CA 90071. Contact us for a free case evaluation at (213) 542-0979.