Bill allows sex-crime prosecution based on reputation instead of provable acts

The Houston Chronicle has good coverage of a bad bill, SB 152, that cleared the Senate yesterday allowing admission of uncorroborated testimony about prior, unrelated acts in the guilt/innocence phase of sexual assault trials. The story opens:

In what critics say could be a "seismic change" in state criminal law, the Texas Senate tentatively approved a bill that would allow jurors in sexual assault cases to hear testimony about similar allegations against a defendant — even if the previous incident did not result in a conviction or even criminal charges.

The bill by Sen. Joan Huffman, R-Houston, would allow the introduction of testimony about allegations of other sexual assaults to be admitted during the guilt or innocence phase of a trial if a judge — outside the presence of the jury — hears the evidence and deems it relevant.

The bill gives "greater resources to prosecutors and victims of sexual assault," Huffman said Monday. Allowing testimony of similar sex offenses "brings Texas closer in line with federal rules of evidence," she added.

Sen. Royce West, D-Dallas, opposed the bill, arguing the measure would bring about "more wrongful convictions" because jurors will be afraid to acquit a defendant against whom they have heard multiple allegations. Jurors who are skeptical of the evidence of the case before them could feel compelled to convict "because he (the defendant) must have done something wrong," West said.

"All of us want to be law and order and the whole nine yards," West said. "But this is carving new ground in criminal jurisprudence. You ought to think long and hard, 'is that fair?' "

Although the Senate gave initial approval to the bill on a 23-8 vote Monday, Huffman retreated on her first attempt to pass the bill last week when it was met with hostile questions.

"This is a hard bill for many to vote against," said Sen. Robert Duncan, R-Lubbock. While current rules of procedure "are designed to protect liberty," he said Huffman's measure would allow jurors to hear "allegations that have not even been vetted by a grand jury."

The story quoted Patrick McCann, a criminal defense lawyer out of Houston who "said the rules of evidence are specifically designed to prevent juries from considering anything other than the facts of the case in front of them. Bringing in allegations that are too weak to garner an indictment or a criminal charge changes, fundamentally, the criminal justice system." That pretty much covers it.

Grits shouldn't have to mention, as Sen. West argued on the Senate floor, that Texas needs to find ways to improve the accuracy of trial judgments, not further cast them into doubt. The state does rape victims no favors when prosecutors secure false convictions only to have them overturned later based on DNA evidence. Not only does the real rapist go undetected, the victim must live with the guilt of having inadvertently helped frame someone who didn't harm them. Trials are no doubt difficult for rape victims, but surely it'd be even worse to live with the result when years later it turns out the victim picked the wrong man in a police photo spread, which in both controlled studies and likely in real-world trials happens with surprising frequency. This bill makes it more likely such errors result in a tragic false conviction.

There were three floor amendments, two of which improved the bill a lot from the version that left committee. Huffman amended the bill to leave discretion with judges, following a hearing outside the presence of the jury, instead of requiring admission. It also provides that the judge may only allow such testimony if s/he concludes it's reliable "beyond a reasonable doubt," which seems like a high bar for unadjudicated, uncorroborated testimony. An amendment by Robert Duncan from Lubbock required notice that such testimony will be presented at least 30 days before trial. Finally, Sen. Leticia Van de Putte actually tacked on an amendment to expand the crimes covered in her sex trafficking legislation.

In the end, just eight senators voted against the bill, three of whom voted for it in committee: Davis, Ellis, Gallegos, Hinojosa, Rodriguez, Watson, West, and Whitmire. Good for them. Companion legislation was heard a couple of weeks ago in the House Criminal Jurisprudence Committee but hasn't received a vote. This bill will expand the number of false convictions and amounts to prosecuting someone based on their reputation instead of provable acts. Truly a step in the wrong direction.