Legal Question in Criminal Law in California

Re: your rights

As a general rule (and there are many exceptions), past acts cannot be used to prove the act in question. They can be used, however in sentencing.

Not really- evidence of prior acts is often admissible!

As a VERY general rule, evidence of a person's character (by opinion, reputation or evidence of specific instances) to prove conduct on a specified occasion is not admissible. However, the exceptions swallow the rule. There are too many exceptions to list here. But here are a couple of examples:(1) evidence of sex crimes listed in Evid. Code �1108 is admissible; and (2)evidence that a defendant committed a crime, civil wrong, or other bad act "when relevant to prove some fact...other than his propensity to commit such an act" such as to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or lack of good fatih belief the victim consented to the act is admissible. Understand that these two categories of evidence are admissible REGARDLESS of whether the defendant testifies.

In addition, prior bad acts and convictions evidence is admissible to impeach the defendant if he takes the stand to testify. In fact, any crime of moral turpitude (petty theft, perjury, etc.) is generally admissible against any witness, including a defendant. Plus, evidence of a character trait in issue may be admissible (i.e., if one regularly fights, it may show a tendency toward violence).

Also, if the defendant (or witness) "opens the door" to the evidence accidentally on cross-examination, the jury will know of the prior bad act (even if it wasn't a conviction). This can happen very easily, as when one is "tricked" into saying he is an honest or peaceful person. He can then be confronted with the prior bad act as a way of challenging that assertion.

Finally, at sentencing, all bets are off. The judge will know if you so much as stubbed your toe in the 9th grade, and it will affect your sentence.

It is a very treacherous area and you need a good attorney to lodge cogent objections to the admissibility of such evidence, and/or to educate you on how, if at all, you can keep the evidence out of the trial. Objections should be made on relevancy grounds, materiality, remoteness, and excessive prejudice or lack of probative value of the evidence, to name a few areas. The defense must object at trial to the admission of such evidence, or the issue is waived on appeal. In order to avoid prejudicing the defendant in front of the jury, the admissibility of other crimes evidence is usually determined out of the presence of the jury at an in limine hearing.

Unfortunately, your past will haunt you. Be careful and be sure to discuss your charges and how they relate to your past experiences completely with your attorney, and follow his or her advice carefully. The slightest misstep in this area could be devastating for a defendant, and your attorney needs to know all the bad stuff so that (s)he can make the right decision for you regarding how to proceed.

Good luck! Contact me if you need more info.

JACQUELINE GOODMAN RUBIO

www.californiadefenselawyer.net

[email protected]