Admissibility of Prior Sexual Offenses Evidence Cases

In People v. Falsetta (1999) the Supreme Court held that Evidence Code section 1108, which allows evidence of a defendant's prior sexual offenses in prosecutions for sex crimes, does not violate a defendant's right to due process of law. The defendant in Falsetta argued that California's rule against admitting propensity evidence ( Evid. Code, 1101, subd. (a), fn. 4, ante) is a long-standing rule that is necessary to assure due process. (People v. Falsetta, supra, 21 Cal. 4th at p. 913.) The Supreme Court noted, however, that Evidence Code section 1101 has long been subject to far-ranging exceptions, e.g., evidence admitted to show intent and other matters specified in Evidence Code section 1101, subdivision (b) (fn. 4, ante). Falsetta said legislative enactment of a further exception applicable in sex offense cases may not necessarily offend fundamental historical principles. (21 Cal. 4th at p. 913.) Falsetta said it was unclear whether the rule against "propensity" evidence in sex offense cases should be deemed a fundamental historical principle of justice, but even if the rule was deemed fundamental from a historical perspective, the court would nonetheless uphold section 1108 because it did not unduly "offend" those principles, in light of the substantial protections afforded to defendants. (21 Cal. 4th at pp. 914-915.) Thus, the Legislature determined the need for this evidence was critical in sex offense cases, given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. ( People v. Falsetta, supra, 21 Cal. 4th at pp. 911-912, 914.) The Legislature declared the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining witness credibility. (Ibid.) The commission of other sex offenses is at least circumstantially relevant to the issue of disposition or propensity to commit these offenses. (Ibid.) Such evidence is deemed objectionable not because it lacks probative value, but because it has too much. (Ibid.) Falsetta said three reasons support the general rule against admission of propensity evidence. ( People v. Falsetta, supra, 21 Cal. 4th at p. 915.) "The rule of exclusion (1) relieves the defendant of the often unfair burden of defending against both the charged offense and the other uncharged offenses, (2) promotes judicial efficiency by avoiding protracted 'mini-trials' to determine the truth or falsity of the prior charge, and (3) guards against undue prejudice arising from the admission of the defendant's other offenses." ( Id. at pp. 915-916.) Falsetta said Evidence Code section 1108 did not offend these considerations for these reasons: First, the statute is limited to prior sex offenses in prosecutions for sex offenses (thus avoiding far-ranging attacks) and requires pretrial notice to the defendant that the prosecution seeks to use this evidence at trial. (People v. Falsetta, supra, 21 Cal. 4th at p. 916.) Second, Evidence Code section 1108, by expressly allowing the trial court to exclude evidence under Evidence Code section 352, allowed the trial court to preclude inefficient mini-trials of prior acts. (Ibid.) Third, Evidence Code section 352 provided a safeguard against undue prejudice. (Ibid.) The trial court's discretion to exclude the prior acts evidence under Evidence Code section 352 saves Evidence Code section 1108 from the due process challenge. (Ibid.) Falsetta further concluded Evidence Code section 1108 does not reduce the prosecution's burden to prove guilt beyond a reasonable doubt because a properly instructed jury will be told the defendant is presumed innocent, and the prosecution must prove him guilty beyond a reasonable doubt in order for the jury to convict. (People v. Falsetta, supra, 21 Cal. 4th at p. 920.) While this appeal was pending, the California Supreme Court issued an opinion holding that the parallel provision ( Evid. Code, 1108), which allows admission of prior sex offenses, does not violate due process. (People v. Falsetta, supra, 21 Cal. 4th 903.) We shall conclude, by parity of reasoning, the same applies to Evidence Code section 1109, since the two statutes are virtually identical, except that one addresses prior sexual offenses while the other addresses prior domestic violence. Thus, Falsetta noted evidence of prior acts is generally inadmissible to prove conduct, but the Legislature relaxed this constraint with respect to sex offense cases, by enacting Evidence Code section 1108. ( People v. Falsetta, supra, 21 Cal. 4th at p. 911.) Falsetta said the court will presume a statute is constitutional, and a party claiming a due process violation must carry a heavy burden of showing the statute offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. ( Id. at p. 913.)