Wednesday, March 12, 2014

Congress’ Cowardly Double Standard Federal Rule of Evidence 413: Allowing Prior Sexual Accusations and Convictions as Admissable Evidence So that a Conviction Will be Guaranteed

While searching for news articles to add to the In the News page I came across this article. Dartmouth's disturbing hostitlity to the rights of young men accused of sex offenses I had no plans to post the article until I reached the last portion. 

It mentions Federal Rule of Evidence 413 and how the Rape Shield Laws have destroyed our system of justice so that getting a guilty conviction is easier on the “victim”.  Rule 413 was recently referenced during the Virginia 2014 General Assembly session and the discussion of HB403. I also spoke against this proposal before it returned to the 2014 session back on September 3, 2013 . Double standards should NOT be written in our criminal code, it guarantees justice will never be served.

The article also mentions a 2008 study that I was not aware of and wanted to share with everyone. 

I’ve extracted the portion of the article that caught my attention but you can click on the above link to read it in its entirety.


The proposal that prior offenses must be taken into account when determining guilt echoes one of the most dangerous legislative "reforms" enacted by Congress to make getting a rape conviction easier. Federal Rule of Evidence 413 provides that "in a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant." The jury is to be informed of the defendant's prior acts whether or not the defendant takes the stand.  

For no other crime does the law allow such evidence to be admitted. Rule 413 was widely condemned by the overwhelming majority of lawyers, judges, legal organizations and law professors on the Advisory Committee on Evidence Rules, but Congress bowed to pressure from law-and-order types and women's groups and passed the law. R. Klein, An Analysis of Thirty-Five Years of Rape Reform: A Frustrating Search for Fundamental Fairness, 41 Akron L.Rev. 981, 1024 (2008). Professor Richard Klein pointed up a stark double-standard in the way this law treats the accused versus the way Rape Shield Laws treat rape accusers:

The rationale behind rape shield laws is that prior conduct of the victim should have no impact on an assessment of what occurred as to the incident on trial. But as to the defendant, evidence of prior conduct is to be allowed with the inference that "if he did it in the past, he did it this time as well." Such a determination, one not based on fact or evidence, was exactly what rape shield laws were designed to, and do, guard against as to the alleged victim. The accuser is protected, the accused is not.

Sentencing and Policy Blog Post: "Judges as Framers of Plea Bargaining"

I'm sharing the below post about a new paper on the topic of Federal plea bargaining and a proposal for future deals but personally I believe plea bargaining should disappear in America all together.

If the Prosecution does not have a case that would hold up in a trial then charges should be dropped. After all it is the responsibility of the Government to prove guilt beyond a reasonable doubt but that not what happens in or country today. Prosecutors stack charges, they have mandatory minimums  on their side and anyone who can’t afford an OK defense attorney ($50,000-$75,000) will be given a court appointed attorney who will just push the defendant into taking the plea deal so they can get their paltry payment from the State and move on to the next defendant who has no money. 

That’s why more than 94% of criminal charges in Virginia are settled with a plea deal, not because of guilt but because the Prosecutors hold all the cards, our statutes have been re-written over the last 25 years to lower the bar of guilt while raising the penalty and a good attorney is more than $100,000. Who has $100,000? 

I’ve previously posted articles about plea bargaining in the In the News page . Including some of these:
·        Southern Virginia task force polices digital shadows, February 16, 2014
·        Report: Prosecutors force federal drug defendants to plead guilty, December 15, 2013
It says those who reject plea deals get stiffer terms
·        Harsh Sentences Are Killing the Jury Trial, December 6, 2013
As they coerce defendants into making plea bargains, prosecutors are also shutting everyday Americans out of the justice system.
·        Prosecutors Draw Fire for Sentences Called Harsh, December 5, 2013
·        US: Forced Guilty Pleas in Drug Cases, December 5, 2013
Threat of Draconian Sentences Means Few Willing to Risk Trial
·        OpEd: Colorado’s draconian sex-offender laws need reform, November 10, 2013
·        Thumb on the scale: How mandatory minimum sentences distort plea bargaining, January 26, 2013
·        Widespread Use of Plea Bargains Plays Major Role in Mass Incarceration, November 2012
·        The Devil’s Bargain: How Plea Agreements, Never Contemplated by the Framers, Undermine Justice July 2011
·        The Case Against Plea Bargaining, 2003
Government should not retaliate against individuals who exercise their right to trial by jury.

I know from personal experience that plea deals are offered in Virginia before the Prosecution interviews the defendant (5 months and 2 weeks since the false accusation was made), you are only given 5 minutes to make a decision about the plea and if you don’t take the offer they’ve stated your photo, name, address and charges will be released to the 6 O’clock news.