Can Prosecutors Get in Prior Incidents of Sex-Related Activity?

Under California Evidence Code 1108, in sex crimes cases, a prosecutor can introduce evidence in court that a defendant committed other sexual-related crimes in the past. Notably, a defendant doesn't need to be convicted of their past sex crime, only that they were arrested. This means their charges could have been dismissed or never even filed.

Even though a defendant was never convicted of a sex crime, can a prosecutor use the fact they were only arrested against them in court on a new case? Yes, that's what this 1108 evidence allows prosecutors to do because they were losing a lot of sex crime cases. So, now they have this weapon, which is a powerful weapon.

This is the same weapon used against Bill Cosby. The court allowed several other cases even though they were never charged against him. Further, as with all evidence introduced in a criminal trial, character evidence related to prior sex crimes could be excluded if its value is significantly outweighed by:

  • the chances it would take too much time to present in court, or
  • the risk is too high would cause undue prejudice or mislead the jury.

The judge has the discretion to decide whether or not to exclude sex crimes character evidence for these reasons listed above. Typically, a judge's primary concern is whether it would create undue prejudice against the defendant. So, the main issue becomes how you can fight this evidence that is permitted against you, even where you haven't been convicted? The answer will depend on the type of evidence. Our Los Angles sex crime attorneys will review below.

Evidence Code 1108 Allows Use of Prior Sex Crimes

This is the big question now in Los Angeles County and across the country.  Many people are being charged with sex crimes, and prosecutors are attempting to get in prior incidents that don't have anything to do with the current case to show that the person has a propensity to commit sex crimes.

Evidence Code 1108 Allows Use of Prior Sex Crimes

Of course, our first response is, that's not fair.  Why would you be able to get in other stuff to prove something?  Why shouldn't they have to prove that all by themselves? For most crimes, that is the case:

  • Prosecutors cannot get in other crimes or prior activity that you may or may not have been involved with to prove a current offense;
  • But for some reason, in sex crimes, the legislature, the courts, and prosecutors can get it in under Evidence Code Section 1108, allowing them to get in prior sex-related offenses.

Notice I use the word incidents for this title because it doesn't necessarily have to be a prior conviction.

Example of using prior incident 

Some woman could allege that you tried to rape her, and no case was filed.  She didn't even report it. Now, a new case comes up, and you're being charged with California Penal Code 261 PC rape, and now they try to bring that other woman in to say, “he tried to rape me,” and then they make the argument he tried to rape this other woman, so he must be guilty of raping the current case. They're letting that type of evidence in.  It's crazy.  I disagree with it.  I think it's unfair.  I think it's resulting in convictions across the country that are not fair.

Retain a Criminal Defense Lawyer Immediately

So, if you or a loved one is charged with some sex offense and you've got other prior incidents, you better get an attorney on your side immediately. You need to evaluate whether you want to take that case to trial because if you take it to go and lose, you're probably looking at:

  • a prison sentence,
  • registering as a sex offender for the rest of your life.

So, it's something you want to consider, but the answer is they definitely can get in prior sex offenses.  They're doing it all the time, and unfortunately, the law is on the prosecutor's side when it comes to that. Now, you end up with a battle within a battle.  You're trying to fight these other sex offenses, a lot of which haven't been filed against you in the past, and you're trying to fight against the case you have.

I've had cases where they've gotten multiple women coming forward and claiming that a client has done certain sex-related offenses to them that were not charged, and the new offense is weak. However, the prosecutors know that they have to try to get these other cases in because it's a weak offense.  It's dirtying up the defendant to make him look as bad as possible so they can get the conviction.

Defending Sex Crime Cases in California

Once again, don't fall prey to this.  If you find yourself in this scenario and see this happening, obviously, you:

Defending Sex Crime Cases in California
  • want an attorney on your side right away who has dealt with this before,
  • knows how to deal with it effectively,
  • knows the right moves to make on your behalf to put you in the best possible position.

Sometimes, it's telling the client, you run a big risk going to trial in this case because of these other cases you have. Why do you have these different cases?  Why are these other women coming after you?  Figuring that out could be very important in deciding exactly how you want to defend the case.

You've come to the right place if you're charged with a sex crime anywhere in Los Angeles, the San Fernando Valley, Santa Barbara — I've been all over the case defending clients for sex-related offenses. Pick up the phone now.  Ask for a meeting with Ron Hedding.  I know how to calculate your chances of success help you decide whether or not you should take the case to trial or try to negotiate the case.