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Summary: Currently previous crimes allegedly committed (but which the defendant was not convicted of) are generally not admissible during the trial phase of a criminal case. The general rule is that past allegations should not be admitted as evidence to influence a jury and that a jury's verdict should be based solely on the merits of the case before them. SB 12 would allow past allegations to be brought up in the trial phase of a criminal case dealing with various sexual offenses allegedly committed against a child.
Analysis: We are deeply committed to due process of law, and to the ideal that every defendant is constitutionally entitled to the benefit of a fair trial. Elsewhere this session we have discussed the problem and unintended consequences of overcriminalization, wrongful prosecution, and wrongful conviction. It is a serious offense to individual liberty when innocent defendants are convicted and incarcerated.
We are also deeply committed to ensuring that the guilty do not go unpunished due to technicalities and that justice is done on behalf of victims of crime. In the case of crimes that this legislation would apply to, the victims would mostly be children too young or incapable of speaking up for themselves. It is a serious offense to their individual liberty when a sexual predator is allowed to remain free because the child could not adequately testify at trial.
Against that backdrop we have closely examined this legislation to determine if it would diminish the right to a fair trial by using old allegations as evidence to sway a jury in a criminal trial. It is our assessment that this legislation would not infringe on the right to a fair trial. Further, it is our assessment that children, often unable to speak up on their own behalf, should benefit from an examination of all the available evidence which may include a pattern of past sexual misconduct.
There are significant procedural hurdles that must be overcome for a prosecutor to bring a case to trial when the main witness is a child and there is little (if any) physical evidence. For instance, a judge must first rule that there is probable cause. Also, the legislation "requires the trial judge, before such evidence may be introduced, to determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt and requires the judge to conduct a hearing out of the presence of the jury for that purpose." The legislation would also require the prosecution to notify the defendant of the state’s intent to use such evidence not later than 30 days before the start of the trial.
This legislation is narrowly crafted to apply only in specific circumstances and only after a prosecutor has met a very high threshold. We find it to be unlikely that this legislation could be used to wrongfully prosecute or wrongfully convict an innocent defendant and that this legislation will help to ensure justice is served for those most vulnerable victims who cannot speak on their own behalf. We support SB 12.