Bill creating loophole in Rules of Evidence would cause more false convictions

Legislation has passed the Senate that Grits hopes will die the same quiet death in the House Criminal Jurisprudence Committee that it did last session. SB 12 by Sen. Joan Huffman, an idea which Grits has criticized before, would upend Rules 404 and 405 of the Texas Rules of Evidence in trials of alleged child molesters, allowing evidence of past offenses, even episodes where the defendant had never been indicted nor convicted, in lieu of provable facts in the case in which they're charged. The bill sailed through the Senate relatively early this year and yesterday the companion bill was heard in the House Criminal Jurisprudence Committee. (Go here to listen to the hearing, beginning about the 52:00 mark. The Texas Tribune has a brief writeup. See also excellent Houston Chronicle coverage of last session's version.)

In the past, I've compared the philosophy behind this bill to the Vichy policeman in the movie Casa Blanca who declared, "Round up the usual suspects!" If you were guilty before, obviously you must be guilty this time. The bill analysis says the legislation would "provide prosecutors with a much needed tool" to win cases, but a prosecutor's duty is to seek justice, not convictions.

Rule 404 declares that "evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity" with the prosecutor's theory of the crime. Justin Wood of the Harris County DA's office said the bill would "work alongside" Rule 404, but it strikes me as more creating a massive loophole.

The American Bar Association opposed a similar federal rule when it was enacted in 1994, noted David Gonzalez of the Texas Criminal Defense Lawyers Association, arguing that allowing in evidence of prior bad acts would prejudice the jury. Interestingly, Gonzalez added that the only time this rule comes into play in federal courts is on Indian reservations.

TCDLA's Kristin Etter declared that the bill "will undoubtedly lead to more wrongful convictions in Texas," noting that most of Texas DNA exonerees were convicted of sex crimes. She noted that Texas penalties for sex offenses are immense so the stakes are particularly high for an innocent person convicted of these sorts of offenses. As the Tribune recorded, "The a lack of physical evidence in the cases, she reminded the committee, 'cuts both ways.' It makes it more difficult to convict someone, but it also makes it more difficult for innocent people who have been convicted, because there is no DNA evidence to help clear their names." Excellent point. The exchange made me think of the poor women wrapped up in the San Antonio Four case, where one of the now-grown child victims has recanted and flawed forensics were apparently presented at trial. IMO Etter nailed it. This bill amounts to asking for more false convictions.

Though not a sure thing, the bill looks like it may have the juice to make it out of committee. Vice Chair Stefani Carter appeared ardently supportive and Reps Leach and Toth on the committee are joint and co-authors, respectively. That said, Rep. Terry Canales asked good questions and clearly was highly skeptical, but it's hard to tell which way other members were leaning, several of whom were not in the room.