It derives from a fairly longstanding judicially created exception known as the “lewd disposition” or “lustful disposition” rule. This law review piece discusses it at some length. However, that rule generally applied only to prior conduct between the defendant and the same victim.
It’s hard to find any policy argument for the exception that would not apply to other crimes, except that (apparently) recidivism rates for sex criminals are much higher than those for other crimes. So in the specific case of sex crimes, the probative value of that sort of evidence is much greater than it is for say, robbery.
I think this is commonly true, not just in the US, and it never ceases to amaze me. Someone can have been in and out of jail for years for a persistent pattern of armed robberies, but when being tried for the latest one, the jury is not allowed to know that he is basically a career armed robber!
I’ve followed a couple of such cases where such information was kept from the jury. I think the defendant was found guilty in both cases, and it’s strange imagining the jury members reading the papers after the trial and finding out this astounding information and going “wow, we sure made the right decision” or “holy crap, to think that I was almost leaning toward acquittal”! I fully understand the principle, but boy, that’s not how most things work in the world.
To your other point, one could argue that making a living by robbing liquor stores is a pretty darned specific modus operandi.
ETA: On reflection, however, I can see how this kind of prejudice would be a huge disincentive for someone genuinely trying to go straight, and being suspected of every crime that occurs in the neighborhood!
If you don’t think about it very much, it seems like a terrible idea. If you think about it some more, you realize it’s a very good idea. The point of a specific criminal trial is to determine guilt for a particular act. We presume everyone is innocent, and evidence that a defendant has committed the same crime previously is likely to overwhelm all other facts in the mind of the jury.
And no, robbing liquor stores is not “darned specific.” Lots of people rob liquor stores. The sort of identification evidence we’re talking about is something that is essentially unique, like a signature.
I also saw this happening during the “sweat lodge trial” (→ James Arthur Ray - Wikipedia ). The jurors had to submit the questions in writing and the judge reviewed them (with the lawyers from both sides). Then the judge read the questions he found admissible verbatim to the witness. If I recall correctly, the judge also rejected a question and he went to great lengths to explain to the jury why he did that.
This was my experience. It was a three day trial that I served on the jury for. During jury deliberations, we had to immediately submit questions initially to the judge and then via the judge to the defense counsel. They all involved the NY State legal definition of intent and then regarding the defendant’s use of the word “intent” and what parts of his story did he intend and which parts were “incidental”. We also submitted questions about why the judge stopped one line of questioning by the defense (regarding obvious racial profiling) and why we couldn’t think about that aspect- We wanted to understand where the defense was going with this line of questioning. Was a comparison of the Police stop INTENT to the defendant’s INTENT to use a weapon the defense’s point or was there something more. So the defense counsel got to give a further recital of his points as long as “the jury did not consider the police’s right to stop in the first place as that was being discussed elsewhere”.
It all came down to the fact that it was a three strikes case, no crime was committed but the fact of a weapon present showed intent especially in the context of a 52 layer Kevlar vest the defendant was wearing.
But we did ask questions to the judge and the defendant via his counsel’s restatements and the prosecutor weighing in as well. It was a fascinating case and I’m glad I got to be a part of it all!
If you have enough evidence to convict someone without disclosing their criminal past, then why should you do it?
Conversely, if you can’t convict without revealing a criminal past, then the guilty verdict is the direct result of prejudice, which isn’t justice.
If you accept that such prejudice is justified, because you believe “once a criminal, always a criminal”, or they don’t deserve the benefit of the doubt, or you feel it makes the criminal justice system smoother/easier then why bother with a trial at all? Just find someone previously found guilty of a similar act, and if they lack an alibi convict them.
So if you’ve been convicted of a rape in the past your goose is pretty much cooked if you’re tried for another one, even if you’re completely innocent. I can see the reasoning here but it pretty much precludes a fair trial for such an accused person.
Also in CA, just wanted to confirm that this is correct. I’ve had judges allow the jury to ask questions (by passing them to the bailiff, then meeting with the attorneys in the back to decide if the question was admissible, and then the judge would ask it).
As for the transcript reading, the main reason is that the court reporter is taking notes in shorthand and it takes time for them to prepare a readable transcript, so any time the jurors would request read back it meant more work for the court reporter. It could also slow things down since the attorneys would need to okay it first, and they frequently would be off doing other things while the jury is deliberating.
Counsel can object to a question. Veto power belongs to the judge. And objection must be argued for if its premise is not already obvious. It is not at all like attorneys rejecting jurors for no stated reason after voir dire.
If the question calls for the witness to give inadmissible evidence, the judge has to reject it. The jury can’t violate the rules of evidence any more than the parties can.
Yes, and I think that’s very well stated, that’s exactly it, and on reflection I fully agree. In a real sense, prior convictions of similar crimes is relevant evidence, but it’s also true that jurors are inclined to be prejudiced buffoons, and it’s a question of whether the presumption of innocence should prevail, which of course it should.
Interesting side question: if the trial is by judge alone, rather than judge and jury, is such evidence also withheld from the judge? I would guess not.
In the case I was involved in, we were told that the defendant was in jail when he called his girlfriend on a jail phone and admitted the crime (these were not criminal masterminds, even though they thought they were). We were even told the reason for it: his parole had been revoked when he was arrested for this crime. So it was clear to the jury that he had previously been convicted of something. We had no idea what it was, though, and it was clearly not the crime he was being tried for.
But the information was relevant to show why the DA had transcripts of his phone conversation. He even asked the defendant, “Where were you on [date]?” The defendant said he didn’t know and the Da than said, “You were in jail, weren’t you?” The defendant admitted to that.
The defense did not object during the trial, but probably discussed whether it was prejudicial before it was entered in evidence.
I think the jury overlooked that and I doubt it would have been a deciding factor, even subconsciously (they took a plea right after this came out, which was what their lawyers were urging them to do from the start). The evidence was pretty damning already (the jail phone conversation was just the stem on the cherry on the icing on the cake).
Mrs Piper, a former Crown prosecutor, strongly disagrees with this casual slam on jurors. She’s run several jury trials and always thought the jurors were careful and conscientious, regardless whether they ruled for the Crown or accused.
I also once heard Brian Dickson, former Chief Justice of Canada (who had been a Queen’s Bench trial judge) say that he never once thought that a jury had made a wrong decision in the jury trials he had presided over and had been impressed by the obvious care they had taken in reaching their decisions.
I’m afraid you guess wrongly. The rules of evidence don’t vary depending if it’s a jury trial or a judge alone. Evidence of prior misconduct by the accused is inadmissible, unless it comes within one of the narrow exceptions, such as the accused putting his character in evidence, or the signature modus operandi example.
I think the issue with a trial by judge is that the judge is deciding whether he is allowed to consider the evidence in reaching a verdict, but if it’s prejudicial he is already subjected to the prejudice that it invokes because he would have to have it presented before he could rule it inadmissible.
How does this work in practice since the judge (presumably, IANAL obviously) determines the admissibility of the evidence? Does he just pretend that he didn’t hear anything that he deems inadmissible?
It is a part of the “rape shield” laws enacted in most (all?) states. This is GQ, so I won’t comment on them, but this provision was enacted after William Kennedy Smith was acquitted of rape in 1991 and the state could not introduce evidence that he had been previously accused of misconduct.
I think it is GQ enough to state that rape is a politically charged issue and that certain interest groups have succeeded in making the Rules of Evidence different for that crime as opposed to all others.
I was on a jury once and we submitted a question. This is Ca. It was my question and frankly I was surprised that they answered it. A guy was arrested for selling crack. He claimed he thought it was really wax and didn’t know he was really selling crack. I submitted a question wanting to know if the crack was loose in his pocket or wrapped in cellophane or something else.
That’s basically what happens; a party that doesn’t want this evidence or that to come in will file a motion in limine, which is a request for the judge to rule that a piece of evidence is inadmissible. In the case of witness testimony, the judge could have ruled that counsel could not ask questions which would elicit the sort of testimony challenged.
More or less. The judge wears three hats in a bench trial (one that takes place without a jury): gatekeeper, fact finder, and lawgiver. In other words, he determines what evidence is admissible, he weighs the evidence, and he applies the law to the facts. In jury trials he’s just the gatekeeper and lawgiver; the jury weighs the evidence.
The issue you raise isn’t as problematic as it might seem; first, the admissibility questions will all have been addressed at pretrial hearings, which could be months or even years before trial. So the judge may well have forgotten about the inadmissible evidence anyway.
A judge who heard evidence (in the gatekeeper role) so prejudicial that he could not fairly adjudicate guilt would hopefully recuse himself and let another judge handle the trial phase.
I was on a jury several years ago for a criminal case in CA involving an older woman who was selling meth, and a big factor in the case was whether she was simply in possession of the drugs or was a dealer. We sat through a week of evidence, which included the fact that 1) meth was all over the coffee table and dining room table along with small baggies full of the drugs. 2) lots of people went to the apartment at all hours of the day and night. 3) one bedroom consisted of almost all stolen goods 4) in her bedroom were what were called “pay and owe” sheets with names and said stolen goods exchanged for drugs.
What bothered us about the case was that when the cops knocked on the door, she just let them in and made no effort to stall them and hide or flush the drugs down the toilet, and the fact the prosecutor never established if the “pay and owe” sheets were in her handwriting. We were all 90% sure she was guilty, but in deliberations, we really wanted to know about these two things because there was some thought that she might just be a naive woman who had been taken advantage of by a drug dealer who had been staying with her and happened not to be there when the cops came. When we asked the bailiff if we could hear two specific things from the transcript that would have cleared some of this up (since it had been mentioned two days before, but we didn’t know it was important at the time), the judge came back and told us we had to listen to the ENTIRE transcript of the trial again or not at all, which struck us as a stupid rule. Since none of us wanted to sit there for another week, we found her guilty. I’m sure she really was guilty, but it struck me as wildly prejudicial to force the jury to waste a week of their time to hear 30 seconds of testimony again.