Against Missouri Amendment 2 and Propensity Evidence In Sexual Crimes

There has been a low level of discussion on the ballot initiatives for tomorrow's election, including Amendment 2, "Rules of Evidence in the Prosecution of Crimes of a Sexual Nature Involving a Victim Under Eighteen Years of Age". In particular, I just received an email that the Missouri GOP has endorsed this Amendment. I therefore wanted to make a formal statement that I do not support Amendment 2.

The official ballot language is as follows:

Official Ballot Title: Shall the Missouri Constitution be amended so that it will be permissible to allow relevant evidence of prior criminal acts to be admissible in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age?

If more resources are needed to defend increased prosecutions additional costs to governmental entities could be at least $1.4 million annually, otherwise the fiscal impact is expected to be limited. 

Fair Ballot Language:

A “yes” vote will amend the Missouri Constitution to allow evidence of prior criminal acts, whether charged or uncharged, to be considered by courts in prosecutions of sexual crimes that involve a victim under eighteen years of age. The amendment limits the use of such prior acts to support the victim’s testimony or show that the person charged is more likely to commit the crime. Further, the judge may exclude such prior acts if the value of considering them is substantially outweighed by the possibility of unfair prejudice to the person charged with committing the crime.

A “no” vote will not amend the Missouri Constitution regarding the use of evidence of prior criminal acts to prosecute sexual crimes.

If passed, this measure will have no impact on taxes.

[Proposed by the 97th General Assembly (First Regular Session) HJR 16]

Proponents of the measure claim that it merely brings Missouri in line with other states and federal rules which allow such 'propensity evidence'. This is not strictly true. The federal rules have very strict restrictions on propensity evidence across the board with a very limited exception for prosecution of sex crimes against minors. Most states closely align with the federal rules. The Missouri proposal is, by comparison, extremely broad, allowing not merely allegations of prior sex crimes against children but of virtually any criminal acts whether charged or uncharged.

Why is Propensity Evidence Bad?

Isn't that a good thing? I mean, we're talking about convicting child predators here, right? It is a good thing to convict the right people of the right crime. I do not see how it helps to turn a courtroom into a circus in order to convict the wrong person of the wrong crime. Opening up propensity evidence also violates several important Constitutional protections, including the right of the accused to face their accuser and the double jeopardy protections. Propensity evidence allows the prosecutor to bring in mere accusations of former conduct--- which may have resulted in dropped charges or a failed indictment, possibly even a not-guilty verdict previously or may not have been charged at all due to lack of proof or inadmissible evidence.

Worse still, we are amending the Constitution rather than simply implementing a rule or statute. A rule or statute can be readily adjusted later. The Constitution is difficult to correct if we find that it has gone seriously wrong.

An excellent blog on Simple Justice goes into many of the reasons that propensity evidence is a big problem. This blog was posted by a public defender in 2008 when Connecticut was dealing with many of these same issues. An excerpt:

The irony of this dichotomy is that uncharged prior bad acts are unproven by definition.  The court is supposed to act as gatekeeper, only admitting those prior bad acts that are shown by “clear and convincing evidence” to have occurred and were performed by the defendant.  This sometimes creates a “trial within a trial,” which puts a defendant in the position of not merely defending against the charged offense, but disproving the uncharged offense as well.

Missouri has serious problems with its public defender system which already leads many defendants to plea bargain even when they have not committed a crime. Propensity evidence may accelerate this problem because anyone with any black mark on their record may realize that they simply cannot win at trial. So now we have the situation where someone who is wrongly accused may have to plea out simply because they were wrongly accused before and because they do not have access to competent counsel to defend them. Meanwhile, when one person is locked up for a crime they did not commit, the person who actually did it goes free.

Plea bargaining creates a viscous cycle because once someone please for a crime they did not actually commit, then that becomes part of their record and becomes propensity evidence for the future. Like a bad movie, we start "rounding up the usual suspects" instead of actually investigating crimes. The usual suspects are almost never rich sons of well-connected individuals. The word "villein" actually means "villager" or "commoner". The British believed that well-bred aristocrats were simply incapable of committing murder, which is why the old murder mysteries always revolved around "uncovering the villein": finding the revolting peasant hidden in the midst of the perfumed aristocrats. Such a two-tiered system is inherently un-American, un-Christian, and unjust.

Text of Existing Rules and Proposed Changes

Federal Rule of Evidence 413: Similar Crimes In Sexual Assault Cases:

(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.

Text of HJR 16, the actual language of Amendment 2:

Section 18(c).  Notwithstanding the provisions of sections 17 and 18(a) of this article to the contrary, in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age, relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim's testimony or demonstrating the defendant's propensity to commit the crime with which he or she is presently charged.  The court may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. [emphasis mine]

Notice that the proposed Missouri amendment considers all "prior criminal acts, whether charged or uncharged" and does not require notice to the defendant. Compare the text of Federal Rule of Evidence 404 "Character Evidence; Crimes or Other Acts", particularly 404 b) and the rationale at the bottom. Propensity evidence is and always has been considered a bad idea. Just because someone says, "think of the children" doesn't make it suddenly a good idea, especially when amending the Constitution.

Please vote this bad idea down.

Addendum: Why Is This a Constitutional Amendment?

Above, I criticize this proposal for using a Constitutional Amendment rather than statutory change or rule. To be fair to the proponents of Amendment 2, this is not precisely the issue. It is true that the attempt has been made before to accomplish this by statutory change. RSMo 566.025 contains:

In prosecutions pursuant to this chapter or chapter 568, RSMo, of a sexual nature involving a victim under fourteen years of age, whether or not age is an element of the crime for which the defendant is on trial, evidence that the defendant has committed other charged or uncharged crimes of a sexual nature involving victims under fourteen years of age shall be admissible for the purpose of showing the propensity of the defendant to commit the crime or crimes with which he or she is charged unless the trial court finds that the probative value of such evidence is outweighed by the prejudicial effect.

Which was ruled un-Constitutional in State v. Ellison 239 S.W.3d 603 (Mo.banc) as violating Article Sections 17 and 18 of the Missouri Constitution (citing basically the same concerns with propensity evidence we outline above). Two other legislative attempts to admit propensity evidence have also failed in Missouri.

So, in one sense, a Constitutional amendment is the only way to accomplish the admission of propensity evidence, however:

1. That does not make it a good idea. The exact same issues which caused the previous attempts to run afoul of the Missouri Bill of Rights still exist. If we throw those principles out the window for accusations of sexual assault, why do they have meaning for anything else?
2. The proposed amendment is much more broad than RSMo 566.025 as can readily be seen by comparing the text quoted above. Amendment I admits a wider variety of crimes under a wider variety of circumstances than that which the courts already found problematic. Therefore:
3. If we decided that propensity evidence was a necessary thing and we decided that amending the Constitution were the way to go about it, simple prudence and respect for the protections in our (state and US) Bills of Rights would dictate that we do so in the least intrusive way possible and then use more malleable statute to place further restrictions. For instance, we could allow the prosecutor to use only evidence of past charged or convicted offenses of sexual assault against minors. Or only charged offenses of sexual conduct (alleged victim of any age) and empower the writing of legislation or appropriate rules of evidence to tighten that down a bit.

Amendment 2 fails this test in all respects. There is an entire world of potential amendments in-between un-Constitutional 566.025 and the Amendment 2 text.