Fault Lines
16 December 2017

Maryland Brings The 90’s Back To Make Convicting Sex Offenders Easier

January 16, 2017 (Fault Lines) — Boy bands. Bucket hats. A frantic rush to criminalize everything. Let’s face it, who doesn’t miss the 90s? Not Maryland, which is preparing to take a page out of Congress’ 90s playbook and weaken the standards of evidence for sex crimes.

Maryland Governor Larry Hogan announced his 2017 initiatives, one of which is supporting the Repeat Sexual Predator Prevention Act of 2017. Despite the name on the tin, exactly how this law is going to prevent repeat sexual predators is unclear.

The basic mechanics are simple enough: Maryland’s rules of evidence will be changed so that previously inadmissible information about a defendant’s prior assaults will now be admissible. This is not an innovation: in the Violent Crime Control and Law Enforcement Act of 1994, Congress modified the Federal Rules of Evidence the same way by adding Rule 413, which allowed courts in a sexual assault trial to admit evidence that the defendant committed any other sexual assault.

Generally, prior criminal acts cannot be used to prove “propensity”; a prosecutor can’t introduce evidence that Joe participated in a previous robbery to suggest to the jury that Joe committed this robbery because he’s just the kind of guy who likes committing robberies. Rule 413 upended this – prosecutors can essentially say that since Joe committed a previous sexual assault, it is more likely that he committed this one too. This is likely to leave the jury unfavorably disposed towards Joe, who, for good measure, is probably sitting in the dock in his prison jumpsuit and shackles in case the jury is slow to pick up on the implications.

Bear in mind that “committed” doesn’t just mean “convicted beyond a reasonable doubt by a jury of peers.” It includes uncharged conduct (i.e. cases that never even made it to a jury) and at the discretion of the trial judge, may even include accusations or cases that resulted in acquittal.

Rule 413 was a sharp departure from established norms of evidence. When it was proposed, the Judicial Conference of the United States, which oversees amendments to the Federal Rules of Evidence, noted both its own disapproval of the rule and widespread opposition in the legal community (the lone notable dissenter, for reasons beyond mortal ken, being the Department of Justice). All for naught: citing both the difficulty of proving sexual assault cases and drawing on a fear of repeat sex offenders, Representative Susan Molinari and then-Senator Bob Dole pushed Rule 413 into law, with several other states following its example.

Now, it may be Maryland’s turn, and it’s not yet clear just how far down the 413 path the state plans to go. According to Governor Hogan’s press release, this legislation is:

Modeled after legislation put forward by Senator Brochin during the 2016 legislative session, which will allow courts to admit evidence of a defendant’s prior history of sexual assault convictions during prosecution for subsequent sexual offenses.

Allowing only prior convictions would make the Maryland rule substantially more restrictive than the federal one. But Brochin’s 2016 bill didn’t restrict admissible evidence to convictions. Instead, it allowed information proven by “clear and convincing evidence,” a nebulous standard of proof falling somewhere between preponderance of evidence (more likely than not to be true) and the equally nebulous but stricter “beyond a reasonable doubt” standard generally required for a criminal conviction.

However, some are suggesting that this law should, and will go further. Baltimore State’s Attorney Marilyn Mosby is pushing for Maryland to go full federal:

She [Mosby] mentioned several cases in which prosecutors were prohibited from introducing testimony from previous victims after charging individuals who had been repeatedly accused of sexual assaults, including a Baltimore man who won acquittal four times before finally being convicted.

“We do this federally, but we cannot do this in the state, and that’s a problem,” she said.

In the scenario Mosby describes, the Governor’s proposal wouldn’t have helped, since only a conviction, not the four prior acquittals, would be allowed. SB 235 might offer some aid if the prior offense could be proven to a clear and convincing standard but only the federal framing would allow Mosby to bring in evidence from those prior acquittals.

So, Maryland has three potential proposals for their new law and since being convicted as a sex offender in the United States generally consigns you to a special kind of hell it behooves legislators to think about how easy it should be to send someone there. In the 90s, legislatures were chomping at the bit and the preamble to Colorado’s version of 413 gives a clue as to why:

…such offenders often commit numerous offenses involving sexual deviance over many years, with the same or different victims, and often, but not necessarily, through similar methods or by common design.

The preamble lists other reasons, including the difficultly of gathering evidence and the heinous nature of the crime itself, but none of those are reasons to let in evidence of past acts, even if they are good reasons to devote more effort to solving sex crimes. The intellectual lynchpin of these laws is that prior sexual assaults are a good predictor of future sexual assaults. But they’re not – sex offenders are less likely to recidivate than other types of criminals and if they do commit another crime, it’s less likely to be a sex crime.

Yet despite the fact that a prior sex crime thus make for poor evidence, letting a jury know someone was convicted of a prior offense can substantially change the outcome of a trial. Common law rules generally excluded prior convictions as evidence of a propensity to commit crimes in order to protect defendants from precisely this prejudice.

Given this, any of three of the proposed alternations to Maryland’s law will be bad, and the only difference between the three is how bad they will be. Trying to prevent sex crimes is laudable, but the state shouldn’t do it by building cases on bad evidence.

4 Comments on this post.

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  • Anonymous
    16 January 2017 at 12:28 pm - Reply

    I would respectfully submit that this post is remiss in failing to mention that Maryland has an analog of F. R. Evid. 404(b), so it’s not like allegations are absolutely barred in the first place. (In fact, if Maryland law is anything like my jurisdiction’s, the government typically doesn’t have too hard a time getting prior bad acts admitted already, despite the rule.)

  • Sam Bieler
    16 January 2017 at 1:22 pm - Reply

    That’s fair. Maryland’s F.R. Evid. 404(b) analog has, in the words of one judge, holes big enough to “drive a Mack truck through” when it comes to barring evidence of prior crimes to prove things like motive. However, what generally makes F. R. Evid. 413 and similar state rules unique is that they admit crimes as evidence of general propensity – overarching character rather than proof of a particular element of a crime or to impeach a particularized claim as 404(b) allows. For the reasons described in the article, that’s a highly problematic use of evidence. It’s also true that the state backdoors character to some degree (e.g. using the prison jumpsuit), but there’s at least a little daylight between such tactics being quietly deployed in spite of the rules and openly welcomed because of them.

  • David Meyer Lindenberg
    16 January 2017 at 4:11 pm - Reply

    This is a hell of a debut, Sam.

    Minor point: showing that sex offenders’ recidivism rates are lower than those of other criminals, or that they’re less likely to commit new sex crimes than other kinds, may not be the best counter to the propensity argument. Rather, you’d want to show they’re no more likely to reoffend sexually than someone without a sex crime on their record is to commit a first offense.

    • Sam Bieler
      16 January 2017 at 10:15 pm - Reply

      Thanks David – I think that’s a great point. Ideally, I think we’d want comparisons to both the general population without a first offense as well as other types of offenders. General population information would show that it doesn’t make sense to treat sex offenders are a breed apart presenting the kind of unique recidivism danger that would make propensity evidence valuable.

      Sex offender specific data is valuable for pointing out the oddity of sectioning off sex offenses and offenders from all other types of criminals since the former are actually less likely to commit another sex crime than the the latter, making propensity evidence particularly uninformative for assessing whether they committed a particular crime. (Though the way things are today, a legislature might decide that sex offenders are indeed not unique but respond by opening prior crime evidence for all offenses…).