A Missouri ballot measure that would allow allegations of past actions to be used against people facing child sexual abuse charges could lead to more wrongful convictions of the falsely accused, a prominent defense attorney said Wednesday.
The proposed constitutional amendment is backed by prosecutors, sheriffs and police chiefs' groups.
It would allow past criminal acts - even alleged crimes that didn't result in convictions - to be used to corroborate victim testimony or demonstrate a defendant's propensity to commit such crimes when people face sex-related charges involving victims younger than 18. However, the evidence's admissibility is at the judge's discretion, meaning if the judge doesn't think it is relevant to the matter being tried then it can not be used.
Currently the previous acts of defendants cannot be presented as evidence to a jury unless they waive their Fifth Amendment rights and testify. The past allegations can also be taken into consideration by judges during sentencing hearings after the defendant has been found guilty.
If approved by Missouri voters in November, Constitutional Amendment 2 could make it more difficult for defendants to persuade juries and judges of their innocence, said Kim Benjamin, a Belton attorney who is the past president of the Missouri Association of Criminal Defense Lawyers.
"You're now defending your entire life, your entire reputation, rather than this one act," she said. "It causes a tremendous risk for more people to be wrongly convicted."
One of Benjamin's most prominent clients was Burrell Mohler Sr., the patriarch of a western Missouri family who was accused along with his four sons of sexually abusing young relatives over many years. The charges ultimately were dropped in March 2012, after Mohler had spent more than two years in jail while awaiting trial.
The proposal, which was referred to the ballot by the Legislature in 2013, is a backlash against a December 2007 Missouri Supreme Court decision of State v. Ellison that struck down a state law allowing evidence of past sexual crimes to be used against people facing new sex-related charges involving victims younger than 14. Before Ellison, the Legislature had twice tried to establish legislation that would make the state's statues regarding these issues mimic federal law, but both attempts were deemed unconstitutional by the Supreme Court.
The earlier attempts at legislating the use of propensity evidence were opposed by officials from the Missouri Association of Criminal Defense Lawyers, said Michelle Monahan, officer with the group.
Propensity evidence is evidence or allegations of past criminal acts, whether charged or uncharged.
Monahan explained that her organization is against the amendment because the evidence attacks the character of the defendant, rather than analyzing the evidence the prosecution has presented to establish the defendant's guilt. She added that when prosecution brings up past allegations where a defendant was not charged, they ignoring the due process of law. This means that the prosecution is basically claiming a defendant is guilty of a past crime without having the issue brought to trial.
She said there are exceptions to the Missouri Constitution already in place where prosecuting attorneys can use uncharged allegations as evidence, but this amendment is more broad and it applies to the most sensitive of cases, sexual crimes against children. The implications of being a sexual offender carry a large negative connotation regardless of a conviction, so implying a defendant is a sexual predator without due process "taints" a jury, Monahan said.
"Obviously this has come about because of individuals that want to protect children," Monahan said. "Throughout my career, I have specialized in these cases in all forms, and no one takes joy in what you have to deal with as a defense attorney or a prosecuting attorney. It is the most serious of situations ... It is a very traumatic thing, but because of that there are special rules that are already in place.
Prosecutors say it would bring Missouri's evidence standards closer to federal ones. Under a 1994 federal law, courts may allow evidence of other sexual assaults or molestations of children younger than 14 to be used against defendants facing those charges.
"This is a situation where Missouri is the outlier," said Platte County Prosecutor Eric Zahnd, a past president of the Missouri Association of Prosecuting Attorneys. "Missouri is more protective of sex offenders in this respect than any other state in the nation, and in my opinion it is high time for Missouri to join the federal courts and other state courts in allowing this evidence to be presented as subject to the rulings of a trial court judge."
Zahnd continued to say cases where previous accusations could be used as evidence against defendants may be more likely to be appealed, and that the majority of sexual offense cases are appealed.
Prior allegations are allowed to be used as evidence in child sex abuse cases by 11 states, according to a 2012 report by the Missouri Office of Prosecution Services.