Monday, February 24, 2014

HB403: Allowing a Prior Sexual Conviction as Admissible Evidence in a New Case Passed the Virginia Senate Courts of Justice Committee

HB403 which proposes allowing a prior sexual conviction as evidence in a case of a new sexual charge passed the Senate Courts of Justice Committee today. 

YEAS--Marsh, McEachin, Saslaw, Norment, Howell, Lucas, Edwards, Puller, Obenshain, McDougle, Petersen, Stuart, Vogel, Stanley, Wexton--15.

Past Posts on this issue/proposal:
The patron of HB403 reminded the Senate Committee they passed this proposal last year but then it was sent to the Virginia Crime Commission to be studied in 2013 and they made some changes and now this is the new version. 

Delegate Bell then told the Committee that this proposal is more specific than the Federal Rule 414 which allows for previous claims and charges of sexual crimes to be entered as evidence. Whereas Delegate Bell’s proposal only allows for previous convictions of § 18.2-61. Rape , § 18.2-370. Taking Indecent Liberties w/ Child , § 18.2-370.01. Indecent Liberties by Child  and § 18.2-370.1. Taking Indecent Liberties w/ Child by Person in Custodial or Supervisory Relationship . 

There were some very good comments made during the discussion and I want to share a few of them here with you. 

I have transcribed the audio of the meeting but I am NOT going to give the name of the Committee members who made the statement, if you don’t agree with me not assigning ownership to the statements you can always attend the committee meetings to know who said what. 

Legal Counsel to the Committee stated: 

 There are two sides to this; the bill has been drafted so that it would not permit what we call propensity evidence to the individual, let me explain what I mean by that because it is important to understand my objection to this bill. 

It is a fundamental principle in criminal law that if a person is accused of a crime to prove that he is guilty does not include that he’s done the same thing before, that’s called criminal propensity evidence. In this country it’s unconstitutional to introduce evidence that someone in the past has done the same thing therefore he must be guilty this time. When this type of evidence is introduced with the purpose of proving guilt as opposed to a long list of exceptions where it can be used such as to prove intent or to prove lack of (inaudible). When this type of evidence is used to prove guilt, that is you’re a bad person therefore he must have committed this crime what the court will say is it’s not relevant to guilt and it’s therefore unconstitutional and it’s not permitted. That’s why in this year’s version (HB403) the bill includes the fact that it must be deemed relevant. Now if that’s the case then it is simply stating what the law already is and the bill is unnecessary. My concern is that any judges reading this bill would assume that the General Assembly must have meant to change the law and that there will be judges who then begin permitting the introduction of bad evidence as proof of guilt.” 
A few minutes later when questions from a Senator (A) to the patron about the Federal Rule 414 compared to HB403 were being raised Legal Counsel stated,  

I have not compared the two, the Committee should be aware even if they were identical just because the Feds do it doesn’t make it right.” 

I looked up propensity evidence for myself (as I am NOT an attorney) this was the best explanation that I found:
Propensity evidence is evidence that a person engaged in prior bad behavior and is therefore more likely to engage in bad behavior again.

Propensity evidence comes in two flavors.  

Uncharged prior bad acts and prior convictions.  Each presents different problems because it comes into play under different circumstances.   

Uncharged prior bad acts can be used affirmatively against a defendant.  Prior convictions, on the other hand, are generally used against a defendant if he testifies, though it is theoretically limited to crimes that reflect upon credibility rather than crimes that suggest that the defendant is a criminal and acted in conformity with his prior criminal behavior. 

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. 

Senator B asked: 

Are we carving out a different standard for sex offenses than say we do for domestic abuse cases, case for writing bad checks because my understanding is prior offenses are irrelevant unless it’s a part of a pattern or shows intent…. Federal law has a long list (inaudible).………..are we making sex abuse cases special cases with a different standard than we do for other criminal category 

The short answer from the patron to the Senator was “yes”. 

The patron in one of his answers stated Virginia Attorney General Herring still supports this initiative as he did in 2013. 

For a brief moment based on the conversations I thought HB403 might not pass but then it was obvious it would. 

There were other comments and questions from 2 Senators but nothing worth noting here, the rest of the Committee remained silent. 

No one stood to speak in favor or in opposition of HB403. 

This bill now goes to the Senate floor for a vote and I expect it to pass and then signed by the Governor, but you never know a miracle could occur and it fails. 

I wouldn’t hold my breath. 

Mary Devoy