Brief Bank # B-768
NOTE: The text of the footnotes appear at the end of the document.
I.
ADMISSION OF PRIOR CRIMES EVIDENCE TO SHOW A PROPENSITY TO COMMIT A CURRENTLY CHARGED CRIME VIOLATES UNITED STATES AND CALIFORNIA CONSTITUTIONAL GUARANTEES OF DUE PROCESS OF LAW
A. Due Process v. Propensity Evidence
Evidence Code §1108, which permits the prosecution to use evidence of prior sexual misconduct by a defendant to show that he has a propensity to commit currently charged sexual offenses, violates the due process clause of the Fifth and Fourteenth Amendments and analogous California constitutional provisions. [Footnote 1]
As noted recently in People v. Fitch (1997) 55 Cal.App.4th 172, the due process clause has limited operation beyond the specific guarantees of the Bill of Rights. Nonetheless, due process draws a boundary beyond which State rules of evidence cannot stray. (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919.) Therefore, if Appellant can show that allowing the jury to use character evidence to show a disposition to commit the charged offense violates a fundamental principle of justice, then he has established a valid due process claim. (Fitch, supra,55 Cal.App.4th at p. 180.
The test of whether a due process violation has occurred is two fold: First, the inferences which the jury may draw from the evidence must be constitutionally impermissible; second, the evidence must be of such a quality that it necessarily prevents a fair trial. (Jammal v. Van de Kamp, supra, 926 F.2d at p. 920.)
Historical practice is our guide in determining whether a procedural or evidentiary rule can be characterized as fundamental to due process and fair trial. (Cooper v. Oklahoma)(1996) 517 U.S. 134 L.Ed.2d 498, 507; Medina v. California (1992) 505 U.S. 437, 445-446.) Due process is transgressed by a state rule that “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” (Id.)
The use of “other acts” evidence as character evidence to show that the defendant has criminal propensities, and therefore is by inference likely to have committed the currently charged crimes, has been universally condemned as contrary to firmly established principles of Anglo-American jurisprudence for more than three hundred years. (McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378.)
The United States Supreme Court has recognized at least twice the unanimous tendency of courts that follow the common law tradition to disallow resort by the prosecution to evidence of a defendant’s evil character to establish a probability of his guilt and strongly suggested that introduction of prior crimes evidence solely for the purpose of showing a criminal disposition would violate the due process clause. (Michelson v. United States (1948) 335 U.S. 469; Spencer v. Texas (1967) 385 U.S. 554, 572-574, concurring and dissenting opinion of Warren, C. J.)
Moreover, at least two federal Courts of Appeal have explicitly held that admission of character evidence to prove disposition of the defendant to commit the current offense violates federal due process. (Panzavecchia v. Wainwright (5th Cir. 1981) 658 F.2d 337; McKinney v. Rees, supra.)
Similarly, California case law has long barred admission of character evidence against a defendant on the grounds that it was simply too prejudicial- and deprived the defendant of a fair trial. (People v. Kelley (1967) 66 Cal.2d 232, 238-239; People v. Schader (1969) 71 Cal.2d 761, 772-773, citing Wigmore on Evidence (3d Ed. 1940) p. 646.)
As stated in People v. Walkey (1986) 177 Cal.App.3d 268, at 279-280, inviting a jury to conclude that, because the defendant has been identified as a member of a group with a propensity to commit a particular type of crime, it is more likely that he committed the charged crime, is simply constitutionally impermissible. (People v. Walkey, supra, citing State v. Maule (1983) 35 Washington Appeals 287 [667 P.2d 96, 99] and Michelson v. United States, supra.)
Evidence Code §1108, enacted by the California Legislature in 1995, clearly offends our long established traditions of fundamental due process and fair trial prohibiting introduction of propensity or bad character evidence. Said Evidence Code section provides in relevant part:
“In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense . . . is not made inadmissible by section 1101 [so long as] the evidence is not inadmissible pursuant to section 352.
. . .
This section shall not be construed to limit the admission or consideration of evidence under any other section of this Code.
. . . ‘Sexual offense’ means a crime. . . that involved any of the following:
. . . Any conduct proscribed by section 243.4, 261.5, 262, 264.1, 266(c), 286, 288, 288(a), 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of section 311.2 or section 311.3, 311.4, 311.10, 311.11, 314, or 647.6 of the Penal Code.
. . . Contact, without consent, between any part of the defendant’s body or an object and the genitals or anus of another person.
. . . Contact, without consent, between the genitals or anus of the defendant and any part of another person’s body.
. . . Deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person.
. . . An attempt or conspiracy to engage in [the above described] conduct .”
Evidence Code §1101 generally prohibits introduction of prior conduct or prior crimes evidence to show the defendant’s predisposition to commit the currently charged crime and allows such evidence to be introduced only for the more limited purpose of proving the defendant’s motive, opportunity, intent, knowledge, or identity or lack of a good faith belief in the victim’s consent to engage in sexual relations.
Although it has been argued that Evidence Code §1108 does not allow introduction of prior crimes or misconduct evidence solely for the purpose of proving a defendant’s bad character or propensity to commit particular types of sexual offenses, and that the Legislature intended merely to codify the Supreme Court’s recent decisions in People v. Ewoldt (1994) 7 Cal.4th 380 and People v. Balcom (1994) 7 Cal.4th 414 broadening the scope of other crimes evidence admissible for non-character purposes, this construction of legislative intent will not withstand scrutiny.
The first rule of statutory construction requires that the court look to the words of the statute and consider the ordinary meaning of the words employed. (People v. Furman (1997) 16 Cal.4th 930, 937.) Nothing in the language of Evidence Code §1108 suggests that it is limited to evidence probative of something more than mere bad character or propensity to commit sexual offenses. Indeed the language strongly suggests the contrary since it expressly disavows the limitations previously imposed under Evidence Code §1101.
Moreover, an examination of the legislative history (People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008; Harris v. Capital Growth Investors IV. (1991) 52 Cal.3d 1142) leads ineluctably to the conclusion that the Legislature did indeed intend to allow the admission of prior sexual misconduct for the sole purpose of proving the defendant’s predisposition to commit similar misconduct charged in the case in which he is currently on trial.
The genesis of Evidence Code §1108 may be found in an article written by a federal prosecutor David J. Karp entitled “Evidence of Propensity and Probability in Sex Offense Cases and Other Cases.” This article, repeatedly cited in the California legislative proceedings leading to the enactment of Evidence Code §1108, urges that evidence of a sexual offender’s propensity to commit sexual offenses is necessary to bolster the victim’s credibility and rebut a defendant’s claims of consensual sex and criticizes California cases such as People v. Key (1984) 153 Cal.App.3d 888 disallowing this type of propensity evidence pursuant to Evidence Code §1101.
Furthermore, the Assembly Committee on Public Safety report on Assembly Bill No. 8882 (which later became Evidence Code §1108) states: “Evidence admitted under this new section would be subject to rational assessment by a jury as evidence of the defendant’s disposition to commit such crimes, and as evidence concerning the probability or improbability that the defendant has been falsely or mistakenly implicated in the commission of [the] charged offense.” (Page 1, italics added.) The report goes on to state:
“The propensity to commit sexual offenses is not a common attribute among the general public. Therefore, evidence that a particular defendant has such a propensity is especially probative and should be considered by the trier of fact when determining the credibility of the victim’s testimony.” (Assembly Committee on Public Safety, report on Assembly Bill No. 882, page 2, emphasis added.) [Footnote 2]
In summary, it is clear that the Legislature did indeed intend that evidence of sexual offenses, ranging all the way from attempted indecent exposure to forcible rape, and probative of nothing other than a defendant’s supposed disposition or propensity to commit “sexual offenses” in general, be admissible under Evidence Code §1108.
That is precisely what occurred in the instant case where evidence-of Appellant’s prior assault on Ms. B in 1991 with intent to commit rape was admitted for the sole purpose of showing that he had a “propensity” to force women to engage in sexual relations against their will and therefore, by inference, raped Ms. S in 1996. As the trial court in this case noted, this evidence was admissible pursuant to Evidence Code §1108 despite the fact that it would be inadmissible under Evidence Code §1101.
Since admission of prior misconduct evidence solely to show criminal propensities violates fundamental due process principles enshrined in our jurisprudence for over three centuries, and since this is precisely what the trial court permitted in the instant case pursuant to Evidence Code §1108, constitutional error was committed.
B. Peoplev. Fitch
Although the above conclusion is contrary to the opinion of the Third District of the Court of Appeal in People v. Fitch, supra, Fitch is not controlling. It is true that generally, there should be a good reason for departing from a decision of another Court of Appeal (Metric Institutional Co-Investment Partners II v. Golden Eagle Insurance Company (1994) 29 Cal.App.4th 1610, 1617.) However, this court need not be bound by a decision of another co-equal intermediate appellate court if it concludes that the other court was demonstrably wrong. Geffin v. County of Los Angeles (1987) 197 Cal.App.3d 188; Los Angeles Police Protective League v. City of Los Angeles (1985) 163 Cal.App..3d 1141, 1147.)
Fitch, is demonstrably wrong and is based on a flawed historical analysis which either ignores, or unduly minimizes, the overwhelming evidence of an unbroken three hundred year old tradition of excluding such evidence in order to assure criminal defendants due process and a fundamentally fair trial. As stated in McKinney v. Rees, supra:
“The use of other acts evidence as character evidence is . . . contrary to firmly established principles of Anglo-American jurisprudence” and has been condemned by every English and American court that has ever considered this issue. (McKinney v. Rees, supra 993 F.2d at 1380 et seq.)
It is only by largely ignoring the cases cited in McKinney, and relying instead on legal treatises that the Fitch court is able to reach its dubious conclusion that legal history regarding the admission of prior crimes character evidence is “ambivalent”.
The Fitchcourt’s attempt to undercut the force of McKinney by quoting from the United States Supreme Court case of Marshall v. Lonberger (1983) 459 U.S. 422 is more than a little disingenuous. The Fitch court states:
“The Supreme Court has noted . . . the common law was far more ambivalent . . : Alongside the general principle that prior convictions are inadmissible, despite their relevance to guilt, . . . the common law developed broad vaguely defined exceptions such as proof of intent, identity, malice, motive, and plan whose application is left largely to the discretion of the trial judge In short, the common law . . . implicitly recognized that any unfairness resulting from admitting prior convictions was far more often than not’- balanced by its probative value and permitted the prosecution to introduce such evidence without demanding any particularly strong justification.” (People v. Fitch, supra 55 Cal.App.4th at p. 181, quoting Marshall v. Lonberger, supra, 459 U.S., at 438-439, f.n. 6.)
However, this language is quoted out of context since the quoted passage was in response tothe apparent position ofthe dissent in that case that “The common law regarded the admission of prior convictions as grossly unfair and subject to some sort of blanket prohibition.” (Marshall v. Lonberger, supra 459 U.S. at p. 438 at f.n. 6.) Thus, the “ambivalence” of the common law (and later codifications) was only with respect to non-propensity uses of evidence of prior bad acts. (See e.g. Evidence Code §1101(b) which permits admission of evidence of a defendant’s misconduct “to prove some fact other than his disposition to commit such an act.)” The common law, in fact, as shown herein above and in McKinney v. Rees, has steadfastly and uniformly excluded evidence of past acts designed to show no more than disposition to commit the charged offense.
The Fitch opinion compounds its erroneous analysis by the assertion that “ambivalence about prohibiting character evidence is greatest in sex offense cases.” (People v. Fitch, supra 55 Cal.App.4th at p. 181.) However, once again what the Fitch court fails to mention is that the “ambivalence” only exists in cases where past sexual misconduct is probative of facts other than disposition, such as the various facts referred to in Evidence Code §1101(b). Thus, even in cases charging sex offenses, the general ban on disposition evidence has always been upheld by our courts.
The Fitch court purports to rely on the recent changes in the Federal Rules of Evidence to justify Evidence Code §1108. (See Federal Rules of Evidence, Rule 413-415.) However, the recency of the enactment of these rules demonstrates thatthey have little bearing on the analysis of fundamental principles in our Anglo-American legal tradition and common law. In other words, the fact that Congress, as well as the California Legislature, may have violated constitutional due process principles of long standing does not mean that no violation of those principles has occurred.
The Fitch court relies heavily on references in legal treatises to laws in a number of jurisdictions that have made a limited exception to the ban on propensity or bad character evidence where the offense is one like statutory rape, adultery or incest – in which the status of the victim makes the act criminal. In such prosecutions, evidence of other acts with the same victim are admissible to show “lustful disposition” or “depraved sexual instinct.” (See e.g. Maynard v. State of Indiana (1987) 513 N.E.2d 641, 647; State of Iowa v. Rankin (1970) 181 N.W.2d 169, 171; State of Kansas v. Jenks (1928) 268 P. 850.)
If the Fitch court had bothered to read the actual cases, however, it would have realized that the “lustful disposition or “depraved sexual instinct” characterization of the exception is nothing more than a label and that those jurisdiction that allow this type of evidence in such cases allow it only where relevant to prove a disputed issue other than criminal propensity such as absence of mistake or accident, guilty knowledge, or criminal intent. Furthermore, the other jurisdictions that allow -“headmission of substantially similar acts, generally allow them only where the acts were committed with the same person and/or they are not too dissimilar or remote in time to be relevant to the issue of the defendant’s guilt or innocence in the instant case. (e.g. Commonwealth of Pennsylvania v. Wilson (1964) 205 A.2d 673; State of Arizona v. McFarland (1973) 517 P.2d 87; Elliott v. State of Wyoming (1979) 600 P.2d 1044.)
While the Fitch court acknowledged that “Our Supreme Court has recognized the possibility that propensity evidence may reduce the [prosecution’s] burden of proof,”, it concluded that:
“Evidence Code §1108 has a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial. Such evidence is still subject to exclusion under Evidence Code §352 . . . By subjecting evidence of uncharged sexual misconduct to the weighing process of section 352, the Legislature has ensured that such evidence cannot be used in cases where its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury.” (People v. Fitch, supra 55 Cal.App.4th at p. 183.)
However, the problem with this attempt to save Evidence Code §1108 is that propensity evidence is inherently so prejudicial in every case that its exclusion under Evidence Code §352 or otherwise is required as a matter of due process Regardless of its supposed probative value. (See Michelson v. United States, supra 335 U.S. at p. 476.)
As noted by the California Supreme Court in People v. Smallwood (1986) 42 Cal.3d 415:
“. . . This court [has] rigorously enforced the rule that evidence of other crimes may never be admitted to show the accused’s criminal propensity . . . . The primary reasoning that underlies [the] basic rule of exclusion is not the unreasonable nature of the forbidden chain of reasoning. . . Rather, it is the unsubstantial nature of the inference as compared to the grave danger of prejudice to an accused when evidence of an uncharged offense is given to a jury . . . Admission of this evidence produces an over strong tendency to believe the defendant guilty of the charge merely because he is a likely person to do such acts . . . It breeds a tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped unpunished from other offenses . . . Moreover, the jury might be unable to identify with a defendant of offensive character and hence tend to disbelieve evidence in his favor . . .” Smallwood, supra at 42 Cal.3d 428; accord, People v. Garceau (1993) 6 Cal.4th 140, 186; emphasis added; citations omitted.)
As the Supreme Court further stated in Smallwood:
“Whenever an inference of the accused’s criminal disposition forms a link in the chain of logic connecting the uncharged offense with a material fact . . . the uncharged offense is simply inadmissibly, no matter what words or phrases are used to bestow a respectable label on a disreputable basis for admissibility – the defendant’s disposition . . . ” (Smallwood, supra, 42 Cal.3d at p. 428.)
In other words:
“While to the layman’s mind a defendant’s criminal disposition is logically relevant to his guilt or innocence of a specific crime, the law regards the inference from general to specific criminality as so weak, and the danger of prejudice as so great, that it attempts to prevent conviction on account of a defendant’s bad character (Id. at p. 429.)
In theory, then, the application of Evidence Code §352 always would mandate exclusion of pure propensity evidence. However, as a matter of practical reality, and as the instant case demonstrates, courts will nonetheless exercise their discretion to admit pure propensity evidence under a variety of questionable rationales as long as Evidence Code §1108 remains on the books.
Thus, contrary to Fitch, Evidence Code §352 provides no meaningful safeguard whatsoever against the admission of highly prejudicial propensity or bad character evidence pursuant to Evidence Code §1108 and contrary to the defendant’s constitutional rights to fundamental fairness and due process.
The Fitch court’s analysis is demonstrably wrong in virtually every particular and this Court need not, and should not, perpetuate the error.
Yet another good reason for declining to follow Fitch lies in the California Supreme Court’s recent grant of petitions for review in a number of subsequent cases where the intermediate appellate courts have done so and affirmed criminal convictions. (People v. Falsetta, Court of Appeal opinion formerly published at 64 Cal.App.4th 291, Petition for Review granted August 10, 1998, Supreme Court No. S071521; People v. Ritson, former Court of Appeal opinion published at 63 Cal.App.4th 1276, Petition for Review granted August 10, 1998, Supreme Court No. S071200; People v. Hoover, former Court of Appeal opinion published at 64 Cal.App.4th 1422, Petition for Review granted September 23, 1998, Supreme Court No. S072374.) [Footnote 3] On the other hand, where appellate courts have refused to follow Fitch and denounced the admission of Evidence Code §1108 evidence, Supreme Court review has been denied. (e.g. People v. More house, unpublished opinion, Court of Appeal Case No. B106834, petition denied July 8, 1998, Supreme Court Case No. S070228.) The handwriting is on the wall. Evidence Code §1108 and Fitch are doomed to be consigned to the dust bin of legal history and this Court should not issue an opinion which will be swept away along with them.
Appellant’s constitutional rights to fundamental fairness and due process were violated by the admission of the Evidence Code §1108 evidence, Fitch notwithstanding.
FOOTNOTES:
This issue has obviously been preserved for appellate review since defense counsel objected vigorously to the admission of Ms. B’s testimony on constitutional grounds during the Evidence Code §402 hearing held immediately before she testified in front of the jury. (Evidence Code §353; People v. Morris (1991) 53 Cal.3d 152, 187-191.)
Appellant is filing concurrently herewith the relevant, legislative intent materials and an appropriate Request for Judicial Notice thereof.
Footnote 3: A Petition for Review in People v. Doe (1998) 65 Cal.App.4th 1452 was filed September 21, Supreme Court No. S073543 and is still pending. No petition was filed in People v. Doe (1998) 64 Cal.App.4th 966.
