The Counsellor's Corner

There is a case presently pending before the Supreme Court of the State of California which will go a long way toward affecting future jury trials of sex-related offenses. The case concerns a controversial 1995 state law that allows, in a sex-crime trial, the admission into evidence of all of a defendant’s prior alleged sex offenses even if he was not convicted of the previous charges nor even formally charged after his arrest.

The defendant is Charles Falsetta whose two prior sexual assault convictions, one in 1985 and one in 1987, were admitted into evidence during his 1995 sexual assault trial. He was convicted in 1995 and sentenced to 40 years to life.

The theory behind the law is to show the jury that the individual has a propensity to commit sex crimes. The question is, is this fair? One of the hallmarks of our legal system is that people should be either convicted or acquitted based on the evidence in the particular case that is being tried, not on whatever the person might or might not have done in the past.

If a jury gets to hear about an individual’s past, they are much more likely to convict the individual. In the numerous criminal cases that I have tried, I would have had virtually no chance of winning if the jury had learned that my client had a prior conviction. Let’s take the average driving-under-the-influence-of-alcohol case. If the jury does not know whether there are prior convictions or whether this is an alleged first offense, the jurors will base their decision only on what is put before them and the defendant will get a fair trial. If, alternatively, the jury gets to hear that the defendant suffered a driving-under-the-influence-of-alcohol conviction in 1997, it is human nature to conclude that if someone did something once, they must have done it again.

When listening to oral arguments in this case, the State Supreme Court indicated a great deal of concern in allowing the prosecution to introduce prior allegations of sex crimes. The justices who questioned the attorneys asked a number of questions along the lines of “isn’t this going to be prejudicial to the person charged?”

This case has attracted a huge following because of its potential implications. If prior sex crimes or allegations of sex crimes are allowed to be admitted into evidence in this type of case, there is concern that prior acts will become admissible in all criminal proceedings.

The attorney for the accused urged the State Supreme Court to find this law unconstitutional as he argued that to permit evidence of previous sexual allegations is not consistent with the presumption of innocence to which each individual is entitled in a criminal case.

There is no doubt that Mr. Falsetta did not have an even playing field. When the jury learned that he had two prior sexual assault convictions in the mid-1980s, his goose was cooked. I detest sexual offenses as much as the next person; however, I don’t want to see a situation where people are convicted of things that they did not do, because of their past. People do change, and that is one reason that the law generally requires a case be decided on evidence pertaining only to the particular case at hand.

It is expected that the State Supreme Court will issue its ruling within the next 75 days, and it is my fervent hope that the playing field is leveled and that the Court decides that evidence of prior alleged crimes is not admissible in sex offense cases or in other types of criminal cases for that matter.

Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth. Mr. Unger writes a bimonthly column on legal and psychological issues.