Broader Admissibility of History of Sexual Offenses

This year the legislature enacted a law making an exception to ER 404(b). Now it is easier to bring in evidence of past sexual offenses.

Last month the law was used for the first time in the prosecution of a 79-year-old man for allegedly molesting a 7-year-old girl during a family vacation. The jury was able to hear testimony from other relatives about his abuse of them in incidents spanning 40 years. Rape trial lets family share decades of pain, secrets | Seattle Times Newspaper, Aug. 19, 2008; Jury finds California man guilty of molesting young relative | Seattle Times Newspaper, Aug. 21, 2008. The second story says "Defense attorneys . . . expect the new law soon to face challenges in higher state courts."

Here's ER 404(b):

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The new law is Laws of 2008, Chapter 90 (links to the bill reports are here), codified at RCW 10.58.090:

(1) In a criminal action in which the defendant is accused of a sex offense, evidence of the defendant's commission of another sex offense or sex offenses is admissible, notwithstanding Evidence Rule 404(b), if the evidence is not inadmissible pursuant to Evidence Rule 403.

* * *

(5) For purposes of this section, uncharged conduct is included in the definition of "sex offense."

(6) When evaluating whether evidence of the defendant's commission of another sexual offense or offenses should be excluded pursuant to Evidence Rule 403, the trial judge shall consider the following factors:

(a) The similarity of the prior acts to the acts charged;

(b) The closeness in time of the prior acts to the acts charged;

(c) The frequency of the prior acts;

(d) The presence or lack of intervening circumstances;

(e) The necessity of the evidence beyond the testimonies already offered at trial;

(f) Whether the prior act was a criminal conviction;

(g) Whether the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence; and

(h) Other facts and circumstances.

Thanks: Jill Mullins.