Evidence Code Section 1108
In People v. Falsetta (1999) 21 Cal.4th 903, 986 P.2d 182 (Falsetta), the California Supreme Court noted that Evidence Code section 1108 was enacted to expand the admissibility of propensity evidence in sex cases. ( Id. at p. 911.)
The high court in Falsetta also explained the standards to be applied in assessing the admissibility of evidence of prior sex crimes under Evidence Code section 1108:
"By reason of Evidence Code section 1108, trial courts may no longer deem 'propensity' evidence unduly prejudicial per se, but must engage in a careful weighing process under Evidence Code section 352 .
Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the charged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." ( Falsetta, supra, 21 Cal.4th at pp. 916-917.)
In Falsetta, the California Supreme Court rejected a due process challenge to Evidence Code section 1108 and its allowance of propensity evidence consisting of prior sexual offenses. ( Falsetta, supra, at pp. 910-922.)
The high court concluded that "the trial court's discretion to exclude propensity evidence under Evidence Code section 352 saves Evidence Code section 1108 from defendant's due process challenge. . . . 'Evidence Code section 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 section 352.
By subjecting evidence of uncharged sexual misconduct to the weighing process of Evidence Code 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.'" ( Falsetta, supra, 21 Cal.4th at p. 917.)