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Sex Crimes: Admission of Evidence / Part 1 of 2

The Flood Gates Are Open: How the Admission of Extraneous Sex Crime Allegations Impacts Trial Outcomes


Last week, a New York grand jury indicted Harvey Weinstein on several sex crimes, to which he pleaded not guilty. The indictments against Weinstein pertain to just a handful of the allegations that have been made against him. By now, we all know that there are numerous, uncharged allegations of sexual misconduct against Weinstein.  The $64,000 question for both the prosecution and Weinstein is whether the court will admit evidence of the uncharged allegations.  The prosecutor in Weinstein's case has indicated that he will attempt to introduce such allegations at trial.  Weinstein's attorney will no doubt emphasize the potential prejudicial nature of such allegations.

Similarly, the admission of extraneous, uncharged allegations of sexual misconduct undoubtedly played a major role in the outcome of Bill Cosby's second trial in Pennsylvania.  In Cosby's first trial, the jury did not hear about sexual misconduct other than from Andrea Constand, the complainant named in the indictment.  The jury could not reach a unanimous verdict, which resulted in a mistrial.  In the second trial, the court allowed the admission of testimony from five other women who all claimed Cosby drugged and raped them in the same or similar manner as alleged by Constand. The court's decision to admit testimony relating to uncharged sexual misconduct allegations sealed Cosby's fate.

So when do Texas courts admit evidence of other sexual assault allegations?  Typically, a Texas prosecutor will make a couple of arguments in an attempt to persuade a court on this issue. First, the prosecutor will usually argue that under Texas Rule of Evidence 404(b) the evidence of an uncharged sexual assault is admissible to prove something other than propensity to commit crimes.  For example, prosecutors in sexual assault cases commonly seek admission of extraneous allegations in order to prove an elemental fact such as intent, method of operation, or identity. The purpose for admitting evidence of extraneous allegations will depend on the defense.  If the defense is, "It wasn't me. You have the wrong guy."  Then the prosecutor will argue the extraneous allegation is sufficiently similar to the charged allegation and therefore the extraneous allegation should be admitted in order to rebut the defense of identity.  If the defense is, "She consented, therefore this wasn't rape," then the prosecutor will argue that under "the doctrine of chances" the extraneous conduct, which is similar to the charged conduct but need not be identical, should be admitted to prove intent or to the defendant's method of operation.   

In Texas, how can someone charged with sexual assault or another crime persuade the court to exclude such evidence?  The defense will want to present a few arguments, in general (each case presents unique facts, which will impact legal strategy).  First, the defense will want to argue that under Texas Rule of Evidence 403, the evidence the prosecution seeks to admit is more prejudicial than probative. This argument will depend on several factors the court must consider when determining whether the value of an extraneous offense is outweighed by the prejudicial effect against the defendant. These factors are(1) how compellingly the evidence serves to make a fact of consequence more or less probable, (2) the potential the evidence has to impress the jury "in some irrational but nevertheless indelible way," (3) the time the State will need to develop the evidence, and (4) the force of the State's need for the evidence. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).  Ideally, the defense will succeed in persuading the court that analysis of these factors proves that the extraneous allegation is more prejudicial than probative and therefore inadmissible. 

If you are charged with a sex crime, it is essential that you contact an aggressive criminal defense attorney as soon as possible in order to begin preparing a defense. Sex crime allegations are serious and if charged, you should prepare for battle. The current political climate of #metoo certainly may have impacted the outcome of Cosby's second trial, and may tilt the scales in favor of the prosecution against Weinstein.  Even non-celebrities facing sex crime allegations will be impacted by #metoo as prosecutors will face additional pressure to aggressively prosecute sex crimes.  Also, #metoo will likely pressure courts to make favorable rulings regarding the admission of other allegations. Because of this current climate, citizens facing sex crime allegations must be proactive in defending their reputation, livelihood, and most importantly, their freedom.  Contact the Hardy Law Group, PLLC today if you need aggressive and effective representation in a sex crime case. 

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