Md. lawmakers consider allowing prior bad acts-evidence in sex offense cases

Daily Record Legal Affairs Writer//February 28, 2017

Md. lawmakers consider allowing prior bad acts-evidence in sex offense cases

By Heather Cobun

//Daily Record Legal Affairs Writer

//February 28, 2017

Legislation to allow prosecutors to introduce evidence at trial of past sexually assaultive behavior under limited circumstances has returned to the General Assembly, and while advocates say it is narrowly tailored and includes procedural safeguards, defense attorneys maintain it is still too dangerous to allow such highly prejudicial evidence into criminal trials.

The cross-filed bills are backed by Gov. Larry Hogan’s administration as part of his justice-for-victims initiative. The legislation has been introduced in past sessions, with this year’s bills a version of one that passed the Senate last year.

The bill would allow the state to introduce evidence of behavior that would constitute a sexual offense under Maryland law to rebut a claim of consent or an allegation that a minor victim has lied, Cara L. Sullivan, a Hogan administration official, told the House Judiciary Committee last week as it heard testimony on House Bill 369. (The Senate Judicial Proceedings Committee heard testimony on the cross-file, Senate Bill 316, in early February.)

“The time has come to move this legislation and provide justice to victims,” she said. “Prosecutors should have the ability to introduce this evidence to hold offenders accountable and take them off the street before they can continue victimizing.”

The Maryland Office of the Public Defender opposes the bills, however, arguing they could lead to prejudice against defendants.

“Our system is always tested the most in these hard and horrendous cases and our fidelity to principles which embody impartiality and fairness are difficult to hold onto,” said Ricardo A. Flores, director of government relations for the public defender’s office. “We are talking about the ability to bring into court, in a separate case, another criminal prosecution where the defendant was acquitted. For each time that the prosecutor said they didn’t believe the defendant in a prior case, there’s at least 12 people who disagreed and that’s our system.”

David Jaros, a University of Baltimore School of Law professor who teaches evidence and criminal law, said in an interview that the rules exclude a lot of relevant evidence about past behavior because juries may assign it undue weight.

“The reason we limit character evidence is precisely because we know how powerful that kind of propensity evidence is,” he said. “We’re dedicated to making sure that in every new case, that person is tried based on the facts in that case.”

Anne Arundel County Public Defender William Davis testified the proposed bills set a dangerous precedent when current rules of evidence already exist to allow the state to introduce the evidence in question.

“We’re not impervious to the emotional and tragic events that have been discussed here today in some of these cases, but what they’re asking you to do is to put into a court of law an emotional bill, really, and the court of law is not supposed to be a place of emotion,” he said.

Prosecution tool

Several prosecutors testified at the House hearing the legislation would provide a tool to hold serial offenders accountable.

Baltimore County State’s Attorney Scott D. Shellenberger told the committee the bill is narrowly-tailored; requires notice to the defendant and a hearing before the judge where the past behavior is proven by clear and convincing evidence; and is only allowed into evidence if its probative value is not substantially outweighed by the danger of unfair prejudice.

“We need help and we don’t think it’s unreasonable given all of the protections that are built into this statute,” Shellenberger said. “And a judge will still weigh the probative value versus its prejudicial effect and at the end of the day… the judge can say, ‘You know what, Mr. Shellenberger, this is very interesting but I think it’s too prejudicial and I’m not going to let the jury hear it.”

Baltimore City State’s Attorney Marilyn J. Mosby, who has advocated for the bill in past legislative sessions, told the committee the goal is to hold serial rapists and child predators accountable.

“Right now, the current Maryland laws slant way too heavily in favor of the accused,” she said.

Mosby cited the cases of Nelson Bernard Clifford, who was accused of sexual assault by multiple victims but acquitted in four trials in 2010 and 2011. In each trial, he took the stand and claimed his accusers consented to the sexual activity but then became angry at him and later accused him of assault. Clifford was convicted of third-degree sex offense in May 2015 at his fifth trial and sentenced to more than 30 years in prison.

In cases of “stranger rape,” where individuals are sexually assaulted by someone they don’t know, the defense that the encounter was consensual is becoming relatively common, according to Charles County State’s Attorney Anthony B. Covington. The legislation would allow the state to rebut that defense if the defendant has faced similar allegations in the past.

“Unless the victim is beat to hell, the defense is going to be consent,” he said. “And it’s going to win the day.”

Current exceptions

Maryland’s current rules of evidence contain exceptions to the general prohibition against introduction of prior bad acts of the defendant, so long as the evidence is not being introduced to prove a defendant’s past behavior makes it more likely they behaved that way in the current case.

The exceptions allow the defendant’s past behavior to be used to prove things such as motive, identity or common scheme or plan.

Committee Vice Chair Kathleen M. Dumais, D-Montgomery, asked why the exceptions could not be used, particularly common scheme or plan in the Clifford prosecutions.

“Can’t we just fix this?” she said.

Lisae C. Jordan, executive director of the Maryland Coalition Against Sexual Assault, said part of the issue is the “tortured definition” Maryland case law has given to the common scheme or plan exception.

“Nelson Clifford has a common scheme or plan,” she said. “What he did shows a design, and if we could at least get that clarified, that a common scheme or plan is admissible in these cases just like all of the other cases, we would get a lot of the way there. This bill gives you one way to do it.”

Lisa Smith, legislative affairs director with the Mosby’s office, said Tuesday she does not believe Maryland’s rules of evidence and case law, as currently interpreted, permit evidence of prior sexually assaultive behavior as other states with similar rules have. Part of the problem is courts have taken the position that evidence of that nature is “automatically prejudicial,” she added.

“Right now, there’s no law that the court should consider certain factors on the record and make certain findings on the record,” she said.

Smith said prosecutors are using the current rules but their arguments are not succeeding.

“You can talk to any special victims prosecutor and they can probably show you motions that have been denied,” she said.

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