Prosecutors, defense debate admitting prior bad acts evidence

The general prohibition on evidence of a criminal defendant’s prior bad acts from being introduced at trial should be relaxed in sexual assault cases, said Maryland prosecutors.

This evidence, used in an effort to show the defendant’s evil methods, is often the only way to prove the sexual assault when the primary evidence is the alleged victim’s testimony, the prosecutors added.

But criminal defense attorneys counter that permitting juries to hear evidence of a defendant’s prior assault — for which they have might neither have been convicted, nor even charged — enflames jurors against the person on trial while providing no direct link to the crime charged.

The Federal Rules of Evidence have favored prosecutors in this balance by largely dispensing with the general prohibition on admitting evidence of a prior assault.

Rule 413 permits federal judges to “admit evidence that the defendant committed any other sexual assault.” The only caveat is that prosecutors must disclose their intention to use the prior bad acts evidence, including witness statements, at least 15 days before trial.

Maryland, by contrast, has not adopted the federal rule and has no law specifically addressing the use of prior bad acts evidence in sexual assault cases.

However, in 2008, the state’s high court found “sexual propensity” exception to the general rule against admission. But to the dismay of prosecutors, the prior assault must not only have mirrored the tactics used in the crime charged but have been committed against the same victim, the Court of Appeals held in State v. Westpoint.

“That’s all well and good when you have the same victim,” said Baltimore County State’s Attorney Scott D. Shellenberger. “That case does not solve the problem of multiple victims.”

Hard cases to prosecute

The ability of prosecutors to use evidence of a defendant’s prior sexual assaults against other victims is critically important in cases where the defense is that the alleged victim consented, which are “incredibly difficult” to prosecute, he added.

“For the most part it’s he said, she said,” Shellenberger said. “If it changes to he said, she said, she said, she said that would go a long way to establishing credibility in that particular case.”

The issue on non-admissibility of prior bad acts came to stark public light last month when convicted rapist Nelson Bernard Clifford was sentenced in Baltimore City Circuit Court to more than 30 years in prison. Clifford’s conviction was particularly notable, as he had been found not guilty in four previous alleged attacks.

In those cases, the judge barred the admission of evidence of prior bad acts, including his having pleaded guilty in the 1990s to second-degree sex offense and first-degree assault against another woman. He served about 10 years in prison, WBALTV reported.

Legislation to adopt a specific evidentiary rule relaxing the general prohibition has been introduced in eight of the last 11 General Assembly sessions but has never made it to either the Senate or House floor for a vote, according to a review of past legislative terms.

‘Far more restrictive’

Montgomery County State’s Attorney John McCarthy said Maryland’s rules of evidence have “always been far more restrictive” than the federal rules. “This rule in particular,” he added.

Evidence of a past, similar act by the accused is often essential for a successful sexual assault prosecution, McCarthy said.

Such evidence of a prior, similar assault can illustrate a pattern of conduct by the defendant that shows consent was not given, he said, citing the uncharged allegations of sexual assault brought by more than a dozen women against comedian Bill Cosby

“There are instances when, without the admissibility of other crimes evidence, the realistic possibility of obtaining a conviction is zero,” McCarthy said.

“Individual cases standing alone would not stand up to the scrutiny of a jury,” he added. “[But] once you see the pattern of activity, you see these are premeditated calculated attacks.”

McCarthy used the example of a serial rapist who has “perfected a methodology for victimizing people.”

If you as a juror “look at one instance standing alone, you’re not sure what you’re looking at,” he said. But if “you put it in a larger context, you say ‘I know what I’m looking at.”

 A crucial ‘safeguard’

But criminal defense attorney Andrew V. Jezic called the Maryland high court’s restriction on the admissibility of prior sexual assaults “absolutely necessary to safeguard fair trials.”

Being told of a prior sexual assault creates among jurors “an instantaneous belief, a ratcheting up of belief that he [the defendant] did it, which is directly counter to the presumption of innocence,” said Jezic, of Jezic & Moyse LLC in Silver Spring. “It is so hugely, unfairly prejudicial.”

Fellow criminal defense attorney J. Wyndal Gordon agreed that judges should be loath to permit into evidence a defendant’s prior acts of sexual assault as they are “far more prejudicial than probative” for the jury.

“You need these filters in place to ensure the defendant gets a fair trial,” said Gordon, a Baltimore solo practitioner.

But Lisae C. Jordan, counsel for the Maryland Coalition Against Sexual Assault, said prior bad acts should be admissible if they show “a common scheme or plan” by the defendant. Judges, however, are very reluctant to permit prior sexual assaults into evidence, fearing these earlier acts will distract jurors’ attention from the current case, Jordan said, adding this concern is misplaced.

“We trust juries with all sorts of difficult decisions,” she said. “We should trust juries to distinguish between the current case and past bad acts.”

 Legislative effort

The most recent effort to pass a law governing the admissibility of prior bad acts evidence in sexual assault cases failed in the General Assembly this year.

The measure, Senate Bill 933, would have required trial judges to admit evidence of a prior sexual assault by the defendant unless they conclude it would be unfairly prejudicial to the defendant. Judges would have had to state on the record their reasons for coming to that conclusion.

MCASA supported the measure but said it should be amended to bar judges from finding the prior bad acts evidence unfairly prejudicial “based solely on the fact that it involves a prior sexual offense,” as that explanation would apply to every case.

“This would continue to deprive survivors of sexual violence of access to justice,” Jordan said in support of the bill this spring.

S.B. 933 would have required a trial judge to hold a closed-door hearing before permitting the prior sexual assault evidence to be introduced.

The judge would have had to find by clear and convincing evidence that the prior assault had occurred. The judge also would have had to consider the similarity and proximity between the prior assault and the one being alleged at trial, as well as the need for the prior-act evidence.

In addition, the judge would have had to state in open court, but without the jury present, the reasons for admitting the evidence.

S.B. 933 died without a vote in the Senate Judicial Proceedings Committee. The measure was not cross-filed in the House.