Oh (de)Jesus! Calling propensity propensity

(I warn you at the outset: this is a very long post about general evidentiary principles and the CT Supreme Court’s jurisprudence on prior misconduct evidence. If you’re a CT lawyer, you probably should read it. If you’re not, you might as well read it anyway, because I spent an hour researching and writing it and it will bother you by the end, just as it bothers me.)

Scott at Simple Justice expands upon Bobby G.’s post about the common scheme and plan exception to uncharged misconduct.

Scott argues that a vast majority of the jurisprudence in the country is based upon a misreading of People v. Molineaux – a 1901 NY case.

Connecticut, on the other hand, seemed to get Molineaux right at first. The earliest mention I could find was in State v. Gilligan1, a 1918 case. The court seems to have gotten in mostly right for the better part of the century – until as recently as 1983 in State v. Williams2 .

At most, the first incident represented an act of misconduct on the part of the defendant which may have indicated a propensity to commit sexual assault. It is precisely this type of evidence which may permit the jury to draw the erroneous and prejudicial inference which the rule is meant to avoid.

Then it all seems to fall apart. First comes State v. Esposito3, in which prior sexual assault evidence is admitted because there are “sufficient marks of similarity to justify the conclusion that it is at the very least a reasonable facsimile”.

Then comes what, until 2008, I would have called one of the worst non-capital decisions from the CT Supreme Court: State v. Kulmac 4.

The Court explains the “new” test for admitting prior misconduct in sexual assault cases:

To guide this analysis, we have held that evidence of prior sex offenses committed with persons other than the prosecuting witness is admissible to show a common design or plan where the prior offenses (1) are not too remote in time; (2) are similar to the offense charged; and (3) are committed upon persons similar to the prosecuting witness.” We are more liberal in admitting evidence of other criminal acts to show a common scheme or pattern in sex related crimes than other crimes. State v. Hauck, 172 Conn. 140, 145, 374 A.2d 150 (1976).

The dissent [pdf], authored by Justice Katz and joined by Justice Berdon, explains just why this is wrong (you should read the whole dissent to get the full picture):

Second, even if the alleged assaults on S and C and K were more similar and therefore shared more in “common,” there is no evidence whatsoever that these assaults were connected as part of an overall plan. To be admissible, the uncharged act of misconduct must be “so intertwined with the crime charged as to indicate that they are separate components of a general plan.” United States v. Dothard, 666 F.2d 498, 504 (11th Cir. 1982). “Courts have admitted extrinsic act evidence to show a defendant’s design or plan to commit the specific crime charged, but never to show a design or plan to commit crimes of the sort with which he is charged.” Id., 502. This court adopted that principle in State v. Conroy, 194 Conn. 623, 626, 484 A.2d 448 (1984), which held that “evidence of similar but unconnected crimes is generally not admissible to prove a criminal defendant’s guilt. Such evidence can show no more than the defendant’s bad character or an abstract disposition to commit a crime; it provides no proof of guilt of the specific offense in question.

The majority cannot and does not claim that the charged and uncharged acts of misconduct in this case were connected by a true plan in the defendant’s mind. Indeed, the only connection they claim between the charged and uncharged acts is the defendant’s desire to sexually abuse young girls. Such a desire does not amount to a plan

I believe that the majority is bending the rules of evidence in order to carve out, for sexual assault cases, a special exception to the rule against admitting misconduct evidence…The problem with creating such a special exception is that two similar but distinct acts of sexual misconduct, separated in time, do not necessarily establish a propensity or disposition on the part of the defendant.

And carve out a special exception the Court did. Fast-forward to 2008 and the recent decision of State v. DeJesus (DeJesus is remarkable for something else besides this liberal exception: the Court held that the Code of Evidence is merely advisory and that appellate courts retain the power to change the law of evidence on a case-by-case basis and it also reversed its decision in Sanseverino – issued a few weeks prior – in regards to the remedy)

I’ll give you the holding first. Take a minute to absorb it:

we further conclude that evidence of uncharged misconduct admitted under the liberal standard of admissibility ordinarily does not reflect the existence of a genuine plan in the defendant’s mind. Nonetheless, because strong public policy reasons continue to exist to admit evidence of uncharged misconduct in sexual assault cases more liberally than in other cases, we will maintain the liberal standard, but do so as a limited exception to the prohibition on the admission of uncharged misconduct evidence in sexual assault cases to prove that the defendant had a propensity to engage in aberrant and compulsive criminal sexual behavior.

So basically, once a rapist always a rapist. In fact, the Court blatantly states that it agrees that uncharged misconduct doesn’t fit the “true scheme” requirement of admissibility. However, the Court has no qualms about buying into the sex offender hysteria  by stating that since these are sex crimes, however, it is always better to let that evidence in, even if there is no rational connection between the uncharged misconduct and the conduct at issue. I doubt we will ever see a case again where uncharged sexual misconduct is deemed inadmissible. As if sex assault convictions weren’t easy enough for the State to obtain.

Nonetheless, we recognize that crimes of a sexual nature are unique and distinct from crimes of a nonsexual nature because they often are “committed surreptitiously, in the absence of any neutral witnesses” and exhibit an “unusually aberrant and pathological nature . . . .” State v. Merriam, supra, 264 Conn. 669-70. Accordingly, we conclude that evidence of uncharged misconduct properly may be admitted in sex crime cases under the liberal standard, provided its probative value outweighs its prejudicial effect, to establish that the defendant had a tendency or a propensity to engage in certain aberrant and compulsive sexual behavior.

DeJesus now takes on the mantle of the worst decision ever. [On a side note: the Court, in State v. Randolph, which DeJesus relies heavily on, does seem to have gone back to the Molineaux “true scheme” requirement for non sex crimes]

Justice Katz, now alone on the Court due to Justice Berdon’s retirement, dissents again:

Although I conclude that this court lacks the authority to overrule our case law setting forth a more liberal standard for the admission of prior bad acts in sex crime cases once that case law was codified into the code, I reiterate my view that we should not have adopted this rule in the first instance. See State v. Merriam, 264 Conn. 617, 679-88, 835 A.2d 895 (2003) (Katz, J., dissenting); State v. Kulmac, 230 Conn. 43, 79-88, 644 A.2d 887 (1994) (Katz, J., dissenting). Moreover, I find it troubling that the majority essentially has rationalized maintaining a rule permitting admission of prior sex crimes evidence on the basis of facts particular to pedophiles. It is little comfort that this court finally has abandoned the legal fiction that this evidence is not being used for propensity purposes. See State v. Merriam, supra, 682-83 (Katz, J., dissenting) (criticizing liberal admission of prior sex crimes evidence under guise of common scheme when evidence was in actuality being used as propensity evidence); State v. Kulmac, supra, 83 (Katz, J., dissenting) (same).

Wait, you thought this was the end? Sorry, my friends, this is CT (gay marriage notwithstanding). There’s more. Shortly after DeJesus, the Court decided State v. Snelgrove:

we must consider as a threshold question whether our new rule allowing the admission of propensity evidence in sex related cases may be applied when the defendant has not been charged with a sexual offense. We conclude that it may be. In DeJesus, we explained that the admission of propensity evidence in sex related cases is supported by two public policy considerations. “[F]irst, in sex crime cases generally . . . the offense often is committed surreptitiously, in the absence of any neutral witnesses. Consequently, courts allow prosecutorial authorities greater latitude in using prior misconduct evidence to bolster the credibility of the complaining witness and to aid in the obvious difficulty of proof. . . . Second, because of the unusually aberrant and pathological nature of the crime of child molestation, prior acts of similar misconduct, as opposed to other types of misconduct, are deemed to be highly probative because they tend to establish a necessary motive or explanation for an otherwise inexplicably horrible crime . . . and assist the jury in assessing the probability that a defendant has been falsely accused of such shocking behavior.” Id., 468-70. Moreover, “[i]t is inherently improbable that a person whose prior acts show that he is in fact a rapist or child molester would have the bad luck to be later hit with a false accusation of committing the same type of crime or that a person would fortuitously be subject to multiple false accusations by a number of different victims . . . .” (Internal quotation marks omitted.) Id., 470.

We conclude that this rationale for the exception to the rule barring propensity evidence applies whenever the evidence establishes that both the prior misconduct and the offense with which the defendant is charged were driven by an aberrant sexual compulsion, regardless of whether the prior misconduct or the conduct at issue resulted in sexual offense charges. Although  we stated in DeJesus that “[t]he scope and contours of the propensity exception to the rule prohibiting the admission of uncharged misconduct . . . [is] rooted in this state’s unique jurisprudence concerning the admission of uncharged misconduct evidence in sex crime cases, and must be construed accordingly”; (emphasis added) id., 473 n.35; nothing in that case suggests that it is the specific nature of the charges brought against a defendant that renders the evidence especially probative in such cases. Rather, DeJesus makes it clear that it is the aberrant and compulsive nature of the defendant’s prior misconduct that permits a fact finder to infer that, because the defendant previously had engaged in such conduct, it is likely that he did so again. As a matter of pure logic, this rationale applies whenever the state is using the evidence of prior sexual proclivities “to establish a necessary motive or explanation for an otherwise inexplicably horrible crime”; (internal quotation marks omitted) id., 469; regardless of whether the crime itself was a sexual offense. Because, in the present case, the defendant’s sexual proclivities clearly were aberrant and compulsive, and the state sought to introduce evidence of those proclivities to explain why the defendant murdered the victim, we conclude that our newly adopted rule allowing propensity evidence in sex related cases applies even though the defendant was not charged with a sex offense.

Then there’s this remarkable conclusory statement:

Because we conclude that the prior misconduct evidence was admissible to establish propensity…

The bottom line, in CT at least, is this: If you’re charged with a sex assault, you’re screwed. Any evidence, any allegation of a prior sexual assault or a crime that had a sexual component will come in at trial. You will be convicted and you will serve a very long time in prison.

What a sham.

  1. 92 Conn. 526 (1918)
  2. 190 Conn. 104 (1983)
  3. 192 Conn. 166 (1984)
  4. 230 Conn. 43 (1994)

8 thoughts on “Oh (de)Jesus! Calling propensity propensity

  1. Mark in Jersey

    Nonetheless, we recognize that crimes of a sexual nature are unique and distinct from crimes of a nonsexual nature because they often are “committed surreptitiously, in the absence of any neutral witnesses” and exhibit an “unusually aberrant and pathological nature . . . .” State v. Merriam

    Really? Arson, Stalking, Domestic Violence, Embezzlement, and many other crimes are committed in secret, without witness, damage victims greatly, and are pathological in nature…

    Should we allow evidence that someone is a compulsive gambler in larceny crimes? Should we allow prior drug treatment reports in the trial of a pharmacist accused of embezzling oxycodone tablets to get himself high? Evidence that the accused was obsessed with an old high-school sweetheart and use those old threatening letters, in a case involving the stalking of his current girlfriend?

    Does this open up the door to the change in the rules of evidence in all crimes of a secretive and pathological nature?

    Of course it is popular, and more and more “judicially correct” to not protect rights, but to bend over and cite “strong public policy concerns“, a sneaky way that masks, and is a synonym for political reasons. However, isn’t the protection of rights a strong “public policy reason”?

    It is easy to ignore the low recidivism rates for sexual offenders, especially those in treatment, when it is politically expedient to demonize sex offenders, and lump them all in together as untreatable, sociopathic scum, even though this is rarely the case (i.e. predatory, violent offenders).

    Also this gem from Snelgrove:

    Moreover, “[i]t is inherently improbable that a person whose prior acts show that he is in fact a rapist or child molester would have the bad luck to be later hit with a false accusation of committing the same type of crime

    Does the Court understand the principle of the presumption of innocence? Or is that down the toilet as well?

  2. womanwearingblack

    Holy crap. I think your state is the only one stupider than mine on 404(b)/ uncharged misconduct evidence! We have an immense test we now have to use, but in fact, if any lip service at all is given to the test, the appellate court defers to the ruling of the trial court.

  3. Rauch

    As one who has been obsessed with this issue for over 15 years, it is time for lawyers across the country get united to fight these horrible decisions. And if you want to know how it all started, go read the briefs submitted to the courts. Remember, appellate judges only know what we tell them. If anyone has this issue coming up I will be happy to supply them with the articles and briefs I have written. e-mail me at rauch at emeraldis dot com

  4. Woman in Blackw

    Just today my appellate court amended our rule (404(b)) to include a horrific sentence about “the prosecutor has to give notice, but if there is good cause, it’s okay to bring up other misconduct evidence in the midst of trial without notice.” Paraphrasing, but not by much. Trial, within trial, within trial. With no opportunity to prepare.

  5. Daniel

    Wow. Just. Wow.

    Am I the only one think that the aberrant and compulsive, not to mention abhorrent, criminals are the ones sitting on the court itself? Seriously, this matter does not require the filing of another legal brief. These judges can be held politically accountable for their decisions and that is the only way to solve this problem; kick them off the bench.

    I am not from CT but I doubt the state constitution has an asterisk that goes “except for people accused of of sex offenses.”

  6. Pingback: Prove the defendant’s bad character, not the crime | a public defender

  7. Crime Central

    Okay, I know I’m posting a year late. Whatever. Here’s my concern; apparently none of you read the 10 page letter Snelgrove wrote to a New Jersey sentencing judge explaining he has uncontrolable sexual thoughts about rendering women helpless and posing their dead bodies to fulfill his sexual fantasies. Or his letters to a Berlin High School classmate discussing how he wanted to be known as a serial killer who was smarter than Ted Bundy. I know for you this is a legal discussion on how the rights of sexual offenders are being trampled, but the reality is, he was a killer, who would have gladly killed more women if given the opportunity. Perhaps looking at the entire case, including the defendants history, rather than just the legal rulings would have prompted a more common sense discussion on the legal issues surrounding the rulings. I know I misspelled several words and probably hacked the English language to bits with my inarticulate prose but I’m tired and cranky and just wanted to make my point. I promise next time I’ll be more literate . . .


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