Friday, August 29, 2014

Missouri Compromised! Bill to allow prior accusations without convictions to be used as evidence in criminal cases

Is Missouri trying to have a monopoly of dumb laws this year? (This is Missouri's THIRD appearance in the Dumbbest New Law category). Is law enforcement so desperate to add more names to their registry coffers they need to include the equivalent of Facebook rumors in order to try to get a conviction?

"It would also include evidence of past criminal sexual activity even in cases where the defendant was not convicted or not charged with a crime." This sounds a lot like what is known as "hearsay," and hearsay is generally not allowed in court.

It is far too easy to convict someone on a mere accusation these days. Add a false accusation into the mix and the potential for abuse is even greater. Imagine someone acquitted because of a false allegation being accused later by a paranoid neighbor or vindictive ex who knows this person was accused in the past. Don't think it never happens because it does. This bill would assist in convicting innocent men.

This bill compromises the concept of "innocent until proven guilty."

Law Enforcement Officials Back Ballot Measure To Allow More Evidence In Some Sex Crime Cases
Originally published on Wed August 27, 2014 1:50 pm

A group of Missouri law enforcement officials have officially endorsed a proposed constitutional amendment designed to make it easier to prosecute sex crimes against children.

Under current law, juries in Missouri can only hear about a defendant's prior offenses during the sentencing phase of a trial, regardless of the type of crime committed. If passed, Constitutional Amendment Two would allow evidence of prior criminal acts to be admissible in cases where the defendant is accused of a sex crime against someone younger than 18. It would also include evidence of past criminal sexual activity even in cases where the defendant was not convicted or not charged with a crime. Eric Zahnd is prosecuting attorney for Platte County.

The federal government (and) other states specifically allow this information to be provided to juries, but because of a couple of Missouri Supreme Court decisions, Missouri juries hardly ever get to know that a sexual predator may have abused other children in the past … and in my opinion that’s wrong," Zahnd said.

Amendment Two, originally known as House Joint Resolution 16, was initially approved by Missouri lawmakers during the 2013 legislative session. Earlier this year Gov. Jay Nixon ordered it placed on the November ballot.

"It's wrong to make children who have been through some of the most horrific sexual abuse you can imagine go it alone with a jury," Zahnd said. "Juries deserve to know the full story, the full truth, about a sexual offender."

The group says Missouri is more restrictive than any other state, barring prosecutors from telling jurors about prior criminal sex acts in nearly all cases against accused child predators. This came about in a 2007 Missouri Supreme Court decision, which struck down a similar law that was already in place.

Pettis County Prosecuting Attorney-Elect Phillip Sawyer said Amendment 2 is about getting the statute that was ruled unconstitutional by the Missouri Supreme Court, a statute he has used before, back on the books.

“We had a statute in place that provided for it. We have gotten to the point now where we are one of the most restrictive states as it pertains to letting priors in,” Sawyer said. “When you are dealing with a prior in that type of case and you want to implement that in a new trial, you’re talking about somebody who has become a predator.

“I think that justice should always prevail. I certainly was a fan of that statute and I used it before prior to the case law coming out that voided us using it.”...

Listen to the justification by Victim Industry Advocates:

Carolyn Green, Executive Director of Child Safe of Central Missouri Inc., a local child advocacy group, said the organization is behind the amendment “100 percent.” “We have had, more than once, the same perpetrator on several children,” Green said. “If you have a 5-year-old who can’t give a good disclosure, and you can’t bring in the fact that this man has also been accused by four other children of perpetrating on them, you might lose that case on the 5-year-old if you can’t bring in those prior acts.”

Beth Jackman, a forensic interviewer and program manager with Child Safe, said it is statistically proven that sex offenders often have more than one victim. “Even in self-reporting from the alleged offenders the numbers could run easily into the hundreds. I think it could be very beneficial to our cases if someone has been convicted previously that it be important to the case we are working on at that time,” Jackman said....

The proposed amendment overwhelmingly passed the Missouri General Assembly in May and will amend the Missouri Constitution as follows:

“Section 18(c). Notwithstanding the provisions of sections 17 and 18(a) of this article to the contrary, in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age, relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim’s testimony or demonstrating the defendant’s propensity to commit the crime with which he or she is presently charged. The court may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.”

It will now go to the voters for consideration in November as a ballot question as follows:

“Shall the Missouri Constitution be amended so that it will be permissible to allow relevant evidence of prior criminal acts to be admissible in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age? If more resources are needed to defend increased prosecutions additional costs to governmental entities could be at least $1.4 million annually, otherwise the fiscal impact is expected to be limited.”

If approved by Missouri voters in November, Constitutional Amendment 2 could make it more difficult for defendants to persuade juries and judges of their innocence, said Kim Benjamin, a Belton attorney who is the past president of the Missouri Association of Criminal Defense Lawyers.

"You're now defending your entire life, your entire reputation, rather than this one act," she said. "It causes a tremendous risk for more people to be wrongly convicted."

One of Benjamin's most prominent clients was Burrell Mohler Sr., the patriarch of a western Missouri family who was accused along with his four sons of sexually abusing young relatives over many years. The charges ultimately were dropped in March 2012, after Mohler had spent more than two years in jail while awaiting trial.

The Missouri ballot measure would essentially undo a December 2007 decision by the Missouri Supreme Court, which struck down a state law allowing evidence of past sexual crimes to be used against people facing new sex-related charges involving victims younger than 14.

The court said in that ruling that "evidence of prior criminal acts is never admissible for the purpose of demonstrating the defendant's propensity to commit the crime with which he is presently charged."

The Legislature voted last year to refer the proposed constitutional amendment to the 2014 ballot.

Prosecutors say it would bring Missouri's evidence standards closer to federal ones. Under a 1994 federal law, courts may allow evidence of other sexual assaults or molestations of children younger than 14 to be used against defendants facing those charges. Those federal evidentiary rules have been upheld in several appellate court decisions.

Prior allegations are allowed to be used as evidence in child sex abuse cases by 11 states, according to a 2012 report by the Missouri Office of Prosecution Services.

Supporters of the Missouri ballot proposal have formed a campaign committee with the hopes or running advertisements for it, though the group had barely $1,300 in its account as of the end of June.

Benjamin said defense attorneys have not organized a campaign against the amendment, because she said they lack the money to do so.

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