The change in California law was modeled in part after a similar change in a federal statute passed as part of former president Bill Clinton's sprawling 1994 crime bill. It garnered little notice at the time, possibly because only a small number of sex crimes are tried in federal courts. The provision was strongly criticized by many federal judges.
The following year, James E. Rogan, a former prosecutor then serving as a Republican assemblyman in the California legislature, introduced the bill that would enter law as 1108. Though the legal battles and police investigations of Jackson were very much in the news then, Rogan says they were not an inspiration for the amendment.
Santa Barbara County District Attorney Tom Sneddon wants to introduce earlier incidents of Michael Jackson's alleged sexual contact with minors, claiming a "propensity" by Jackson to commit such acts.
(Pool Photo Aaron Lambert Via AP)
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"It was clear to me and many of my colleagues that child molestation cases are something of a unique crime," says Rogan, who went on to serve in Congress and is now an attorney with Washington-based Venable LLP. "We thought there ought to be a mechanism to give a jury a clearer picture of who this person is committing these alleged offenses."
The provision requires that judges determine whether to allow the evidence, and to disallow it if its potential to prejudice the jury outweighs its usefulness.
Only a few other states, including Indiana and Arizona, permit propensity evidence. Others have similar rules on the books but with tighter constraints. In Louisiana, prior behavior can be used only in sex crimes against minors, while in Maryland it can be used only to discuss earlier offenses against the same victim.
In California, prosecutors say they now regularly use evidence of past offenses, and that it has dramatically improved their ability to win sex-crime cases.
"It has allowed us to actually file cases we would not have been able to prosecute in the past," says Rosanne Froeberg, assistant district attorney for Orange County. She estimates that the sexual assault unit she oversees used evidence of past offenses in at least a third of the roughly 45 sex crimes they took to trial last year -- and that judges accepted it in almost every case.
"If it's a little girl telling us that the guy down the street has [molested] her and we didn't get any DNA because she reported it three days later, I ask myself, how can I go forward?" she says. But if authorities then look into their records and find previous investigations of the same guy, with victims willing to talk about it, then it "takes my one-on-one-with-no-corroboration into a situation where I can prosecute."
In Oakland's Alameda County, Deputy District Attorney Kevin Murphy says his sex-crimes unit probably uses prior evidence in a third of its cases. In the San Diego County district attorney's office, Summer Stephan says the law has helped her sex-crimes and stalking division boost its conviction rate. She says prior evidence is used in about 20 percent of cases.
Recently, her office had to pass on prosecuting a suspect for whom they could not develop a strong enough case. Within two months, he allegedly committed another sex crime -- and now Stephan is confident that "in the right court," they will be able to use the abandoned case to win a conviction in the new one.
"When they say the victim wanted it, that might work the first time, but the second time it's not going to work," she says.
For defense attorneys, though, the provision has troubling implications. "The whole purpose is to make you think the defendant is a rapist, a child molester, that he does this all the time -- and that since he's done it before he'll do it again," says George L. Schraer, an appellate lawyer in private practice in Southern California.
Jack M. Early, president of California Attorneys for Criminal Justice and a defense lawyer in Irvine, recalls a case in which prosecutors had weak evidence to support their charges against his client but compelling testimony from a crime he had allegedly committed 30 years earlier.
The trial ended in a plea after prosecutors presented the old evidence but before they brought up the new. Interviewing jurors later, Early was stunned to find them convinced of his client's guilt -- even though they had heard nothing of the case at hand. "It was a snapshot of the jurors' mental state," he says. "They were ready to convict based just on the priors."
But state and federal appeals courts have denied challenges to the provision. Although some older judges are "offended" by the provision, says Matt Braner, a deputy public defender for San Diego County, "the majority of the time they admit."
Paul Rothstein, a professor at Georgetown University Law Center and an expert in evidence, says many critics of 1108 fear a reliance on prior evidence will encourage investigators to "just haul in the usual suspects" and not work very hard to solve the case.
And he questions some of the rationale for the provision: Although some studies have shown that sex offenders are indeed more likely to commit their crimes again, other studies show little difference from other kinds of criminals.
Rogan, though, notes there are plenty of reasons that prosecutors might not want to rush forward with old evidence. Jurors may question why alleged victims from years gone by never pressed their claims earlier. In the case of Jackson, the defense team could claim that the earlier accusations were attempts to extort money.
"If a jury thinks some of your evidence stinks, they might think all of it stinks," Rogan says.
Rothstein, meanwhile, says some of his earlier objections to prior evidence have lessened over the years, in part because of the special challenges of prosecuting sex crimes.
"In daily life, people do make decisions on this guy's character or past wrongdoing all the time -- you wouldn't hire as a babysitter someone who had a reputation or a record of child molestation," he notes. "A lot of people argue it just brings the law in line with common sense."
