Propensity and the Sex Offender

Over at VC, Eugene Volokh posts about the Iowa Supreme Court’s decision in State v. Cox, in which the court held that the use of propensity evidence, permitted by Iowa Code § 701.11, violated due process.

The policy against admissibility of general propensity evidence stems from ‘a fundamental sense that no one should be convicted of a crime based on his or her previous misdeeds.’ ‘A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not for who he is.’ This concept is ‘fundamental to American jurisprudence.’

Of all the various forms of evidence, propensity is among the most insidious.  It taints the defendant, labels him an inherently bad person, and compels a jury to believe that he deserves conviction regardless of whether he committed the particular crime for which he’s on trial.  It’s a pure appeal to prejudice.

Eugene notes of the Iowa decision:

In this, the court departed from the view of federal courts and most state courts, and adhered to the minority view, which until then apparently was followed only by the Missouri Supreme Court.

This statement requires some clarification, as it gives a very misleading impression.  While true of the use of prior bad acts for sex offenders (see FRE 414 and 415), it is not the general rule.  In New York, the rule is Molineux, and Larry Cunningham offers a good explanation (via Judge Barry Kamins) at his modestly named New York Criminal Law and Procedure Blog

But Eugene then offers a very curious, albeit unexplained, position.

An interesting decision; I’m not sure it’s right, but I wanted to pass it along. Since it interprets the Iowa Constitution, the U.S. Supreme Court can’t review it, though Iowans could amend the constitution if they disapprove of this decision.

No explanation is given as to why Eugene doesn’t think it’s right, and whether it may relate to the sex offender aspect or whether Eugene thinks propensity evidence is a good idea in general.  It would be appreciated if Eugene could clear this up for me.

The distinction when it comes to sex offenders is clear.  They are, as far as the criminal justice system is concerned, incurable.  They are recidivists.  Once a sex offender, always a sex offender.  Therefore, their prior history (including uncharged bad acts) leads to the inexorable conclusion that they must be guilty of any new crime charged.  So the argument goes.

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.  It’s the sex offender aspect, then; that they are so hated, and so presumed to reoffend, that they neither deserve a fair trial nor the slightest concern on the part of good people.  They are animals and unworthy of a fair trial.  This is borne out in the comments, where most of Eugene’s readers make clear their feelings toward sex offenders in particular, and criminals in general.

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.

Outside of some very limited circumstances where prior bad acts carry particular relevance, most of which occurs only after the defendant has raised issues as discussed in Molineux, the use of propensity evidence is fundamentally wrong and foreign to the constitutional presumption of innocence and the demand of proof beyond a reasonable doubt.  If a person is sufficiently proven to have committed a crime, then convict him.  But not because we hate him for what he did before.

4 comments on “Propensity and the Sex Offender

  1. Sarah

    In Kansas, our statute governing prior bad acts evidence has for years explicitly stated that such evidence cannot come in as propensity evidence. Last year our legislature (at the urging of our Supreme Court) amended that statute. Under the new statute, prior bad acts evidence is still inadmissible to prove propensity. But when the charged offense is a sex offense, any prior sex offenses by that defendant (whether they resulted in conviction or not) are admissible. The statute is so new that the obvious legal challenges to it have not yet reached appellate courts. But I’m not terribly optimistic as it was the court who recommended the legislative change in the first place. Thanks for pointing out the Iowa case, though, as at least now we have some persuasive authority to cite when we do challenge the statute.

  2. tsj

    I’ve been on four criminal juries: drive-by shooting, murder 1, assault and battery, and child (teenager) molestation, in that order. I assure you, the molestation case was far different than the others.

    The jury pool gasped when the nature of the case was announced. People wept. People claimed they couldn’t possibly sit on such a jury. And not a piece of evidence had been presented.

    There was no prior bad act claim. Only 35 years of unblemished help getting underprivileged young women full ride scholarships to major universities via sports.

    The jury was ready to vote guilty even for the charges for the defendant who said only “I can’t remember” to every question. Presumption of innocence was nowhere to be found.

    Only by holding the jury out for eight days until a hung jury was finally declared, and only by then working closely with the defendant’s attorney to prevent a guilty verdict during the retrial, was a decent and honorable man allowed to return to his family and a half-million dollar legal bill.

    The lawyer made a name for himself. It just doesn’t happen that a person charged with multiple-victim, multiple-count child molestation walks free.

    And still the simple accusation of being a child molester is insufficient for the State. They want to pile on any prior bad acts they may find or hear of, regardless if proven.

    It was a life changing event for me. I’ll never see the justice system with the same eyes.

  3. Derek Fallenone

    We have rape shield laws to prevent the character of an accuser for attacks, but why in sex cases the accused has not the same dignity? When it comes to sex crimes, the accused is guilty unlesss proven innocent.

    A few relevant cases:

    Argument # 4: “Risk alone” does not justify “regulatory action.”

    * The mere knowledge of a person’s past behavior does not justify a belief the person will automatically re-offend (Tot v. US, 319 US 463.)
    * The courts also established in order to prove conspiracy, there must be some concrete action related to specific acts [US v. Cintolo, 818 F. 2d. 980, 1003 (1987)].
    * The Courts have also struck down punishment based on a degraded status alone, like a drug addict [Robinson v. California, 270 US 660 (1962)].

  4. Lee

    Here in good old Liberal CA, propensity evidence is admissible in both sex and domestic violence cases.

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