Prove the defendant’s bad character, not the crime
Let’s play a game. I will give you two quotes, both on the same issue. One is from an erstwhile liberal northeast state, the other from a state in “flyover country”. You guess which is which.
Compare:
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, [citation]. 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.
with:
that which makes the evidence more probative—the similarity of the prior act to the charged act—also makes it more prejudicial. As we explained in Reynolds, where a prior bad act is “similar to the incident in question, ‘it would be extremely difficult for jurors to put out of their minds knowledge that the defendant had assaulted the victim in the past and not allow this information to consciously or subconsciously influence their decision.’ ” [citation] (quoting State v. Henderson, [citation]). [Statute] violates the due process clause of the [State] Constitution as applied in this case because it permits admission of prior bad acts against an individual other than the victim in the case to demonstrate general propensity.
Which is which? I’ll tell you. The first is from State v. Dejesus, a Connecticut Supreme Court decision that I excoriated here. The latter quote is from a very recent decision of the Iowa Supreme Court in State v. Cox. Of course, this liberal standard in Connecticut is applicable only to sex offenders. Scott, writing on State v. Cox, highlights yet again the blindness caused by sex offender hysteria and the quick sacrifice of basic principles of constitutional law such as due process:
The obvious response is that if a defendant is alleged to have committed a crime, prove the crime, not the defendant’s bad character. Putting aside the trial within a trial aspect of using uncharged prior bad acts, itself a nightmare to defend, the use of propensity to smear a defendant seems far too obvious for someone as smart as Eugene to ignore.
Most people, including lawyers, find propensity compelling. This is what makes it so dangerous. It is marginally relevant, but it is also the most unduly prejudicial evidence available. As bad as it is for most, it’s worse for anyone accused of being a sex offender, since that characterization already creates a taint that few are able to overcome. There are few offenses that can turn a stomach faster or harder, particularly when the offense involves a child.
As much as the public would be just as happy to take anyone accused of a sex offense and hang them in a tree, after which they can have as fair a trial as they want, this is precisely why propensity evidence should not be permitted at trials involving alleged sex offenses. The mere allegation of a sex offense carries overwhelming prejudice. To further remove the need to prove the crime, by supplanting proof with the prejudice of propensity, reduces the trial to a farce. Defendants should be convicted for what they did, not because they’ve been smeared in the process.
Nowhere has this been more evident recently than in the trial of Tonya Craft, which I wrote about here and which is still underway. One need only peruse the live tweets by the media from the trial to get a sense of the circus that it has become, centered around proving the bad character of the defendant, rather than the crime itself. Once a sexual deviant, always a child molester.
Sex offender fear has seeped into the subconscious of our society. Ask any defense lawyer and they will tell you it is the worst kind of crime to be charged with. An accusation, almost always, is as good as a conviction. We keep believing adolescents and children who make these allegations, many of them years and decades after the assault is alleged to have happened, despite common sense and experience telling us that children are frequent liars of the worst kind. Hack “experts” spring out of the woodwork to explain away any action or behavior of the child as being “consistent with sexual assault”.
A typical cross-examination of these “experts” will seek to show that delayed disclosure is indicative of sexual assault and at the same time immediate disclosure also indicates the same; that good grades are just as indicative as bad grades; acting out and acting normal are both indicators of sexual abuse. No matter how the child acts, the “expert” will tout it as a definite reaction to sexual abuse.
Yet juries don’t seem to care. A sex offender is dangerous and we must believe children. Child sexual assault, to be sure, is an ugly crime. But to automatically assume that any person accused of such is guilty is fearmongering of the worst kind that can only come back to bite us in the ass.
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about 2 years ago
Excellent post! I think that the way these cases are tried is a threat to our entire criminal justice and child welfare system.
about 2 years ago
Let us preface this with a bit of history.
April 1 2008 Mr. Henke, the ex husband begins calling the 2 other parents in this case. Tonya had spoken to him about his wife’s inappropriate behavior with their daughter. (based on phone records)
April 3 of 2008, Tonya Craft goes to DFCS with a complaint about inappropriate touching of her daughter by her stepmother (step mother was showering with the child and showing her how to “shave” parts of her body. Child is 6).
Amazingly a few weeks later, the 2 parents and Henke then file a report against Tonya Craft alleging she molested their children.
10 months of “counseling” and 4 to 5 forensic interviews later after denying anything happened all that time, the children finally say something happened. The stories are wildly different from each other. One child says, “my mom told me what was what and where I was touched”, another child says “I don”t don’t remember, but my father told me she did.”
Because there is literally no evidence in this case, and the interviews are so obviously contrived complete with leading questions (one interviewer asks the child 16 times is there more before the child finally says something. Horrible!
We were treated to a 4 hour cross examination of the defendant by ADA Gregor. In that 4 hours he asked probative questions such as;”Did your zipper (dress) break at the gala? A: No. Followed by “Were you wearing a thong (underwear). A: No. We then moved on to him talking about men she had dated between her marriages even going to far as to read emails (that contained zero but fond comments) out loud in court. From there he rambled in a self monologue for over 4 minutes that never ended in a question. He simply rambled tearing apart her character for *horror* dating men.
In 3 hours, he asked very few questions that actually referred to the 22 counts against her.
1.You’re saying that (accuser 1) never spent the night at your house, right?” “That’s correct.”
2.“And you’re saying that (accuser 2) only spent the night one time at your house?” “Yes.”
3.“And you never gave anyone a bath at your house?” “I never gave anyone a bath at my house.”
5.Did you ever touched (accuser #1) or touched her bottom or private areas or given her a bath and scrubbed her hard and between her legs. A: No.
4.Mr. Gregor asked about (accuser 1) being at the Craft home when her own children weren’t there and her reply was that this had never happened.
The rest of the “questioning” consisted of rambling self monologues, questions about her ex husband, the fact she is a fitness instructor and other anane items.
He turned to the court as a whole and pointed out the people sitting in the audience who were wearing yellow (supporting Ms. Craft) and called them “Team Tonya” and asked if they were going to do the wave. He complained that she was making eye contact with him.
He went on then to insinuate that Dr. Ann Hazzard, nationally renown expert on child abuse had “lied” for money.
Three hours and more mud slinging than a tractor pull later, he finally stopped embarrassing himself. This would be funny if a woman’s life wasn’t on the line.
The prosecutors presented contrived evidence, brought forth by experts who range from one no degree to one who decided to NOT document astonishing verbal graphic accounts of abuse that were “just remembered” after FOUR forensic interviews to a counselor who was ordered to have “no contact” with the Craft children in another case and decided to ignore both the court order and the subpoena that went with that.
Let us add in the perjury we saw by the states witnesses, the judges refusal to allow the defense to offer the proof of that perjury, the hour long phone call between the judge and a witness PRIOR to testimony which was NOT disclosed in open court and you get a glimpse into the circus that is the Craft Trial.
about 1 year ago
I certainly HOPE these laws get looked at more closely. There are more innocent men,usually, who have been falsely accused because of the hysteria. The laws are so out of control and too few people seem to know or care. Youth who are put on the registry is the worst injustice. But there are SO many others who should not be, like the MAJORITY of people on there who are NOT DANGEROUS ! .But it is an amusing source for the curious and for nutjob vigilantes. What a disgrace this is. Taking one of the most extreme cases of harm to a child and applying the law to ANYONE who commits the slightest sexual behavior, such as urinating in public (and not trying to be seen but being seen), men who frequent an underage, post-pubescent prostitute who lied about her age, admits it was consensual , men downloading porn that happens to have an adolescent in the package looking sexual…most could care less how old she is because she doesn’t look 8 or 10. But these are men who would NOT be interested in a child. It SOUNDS terrible…to look at CHILD PORN so it sounds so much worse than what it is. (OR people download porn and don’t screen it to check ages and it even might have kids but that’s not what they were looking for). WHAT IS WRONG WITH AMERICA ??? It’s like an obsession with sex and a hate for sex that appears to be driving these crazy crazy laws. And it is ruining lives, not just the mostly men it catches in it’s net, but their families and their children who suffer along with them. These laws got traction in the Bush administration and the drama-driven media, esp. FOX and opportunistic politicians and overzealous states attorneys.