State v. Gresham: The Prosecution Gets Greedy
In January the Washington Supreme Court struck down a statute which changed the rules of evidence to allow “propensity evidence” in sex offense prosecutions. The Court ruled, inState v. Gresham, that the legislature’s tinkering with the rules of evidence violated the courts’ prerogative to define the Rules of Evidence and was therefore an unconstitutional violation of the separation of powers doctrine.
For decades Evidence Rule 404(b) has prevented the prosecution from using evidence of misconduct unrelated to the charge at issue to argue that a defendant is a “bad guy” who is probably guilty because of the other bad stuff he’s done. This changed in 2008 when the legislature passed a law creating an exception to ER 404(b) in the case of prior sex offense convictions. Prompted by an acquittal where the prosecution was precluded from informing the jury of the accused’s prior sex offense conviction, the legislature tweaked the rule “to ensure that juries receive the necessary evidence to reach a just and fair verdict “ (read: to ensure that they convict the defendant). Nevermind that 404(b) already allows the prosecution great latitude in admitting evidence of prior sex convictions if they can come up with any relevant reason for doing so (the most common reason being to show “common scheme or plan” in the case of molesters who victimize the same age victim or use a similar grooming routine, see State v. DeVincentis, among others), or that the fact of a prior unrelated sex conviction is so prejudicial a piece of evidence that it would threaten to overwhelm the reasonable evaluation of the relevant evidence and make sex offenders sitting ducks for false accusations.
In spite of vigorous warnings from the defense bar that the statute was both unnecessary and unconstitutional, the legislature moved ahead. Now, with the Supreme Court’s ruling inState v. Gresham, the defense bar’s warning has been fulfilled and all convictions gained by the use of this statute are vulnerable to reversal. The moral for the prosecution: quit while you are ahead.
