Thursday, February 05, 2009

Pattern-Scheme-Plan Rationale for Other Crime Evidence & Use of This Rationale in Sex Crimes Cases

The Supreme Court of Connecticut recently revisited the use of "pattern," "scheme," "plan," and the like, as a rationale for the admissibility of other crime evidence. See State of Connecticut v. Carlos DeJesus, 288 Conn. 418; 953 A.2d 45 (2008). The Connecticut Supreme Court creates a special "plan" or "scheme" rule for sex crime prosecutions.

But Katz, J., dissenting, chides the court: "...I find it troubling that the majority essentially has rationalized maintaining a rule permitting admission of prior sex crimes evidence on the basis of facts particular to pedophiles. It is little comfort that this court finally has abandoned the legal fiction that this evidence is not being used for propensity purposes. See State v. Merriam, supra, 682-83 (Katz, J., dissenting) (criticizing liberal admission of prior sex crimes evidence under guise of common scheme when evidence was in actuality being used as propensity evidence); State v. Kulmac, supra, 83 (Katz, J., dissenting) (same)."

The court's discussion, when considered with Judge Katz's brief but penetrating critique, makes for interesting reading and provides a nice example of the conceptual issues and legal trends in the use of other sex crimes evidence in sex crimes prosecution.

Defense counsel's unsuccessful attempt to invoke the terrible prosecution condemned by New Jersey's appellate courts in State v. Michaels, 264 N.J. Super. 579, 616-35, 625 A.2d 489 (App. Div. 1993), aff'd, 136 N.J. 299, 642 A.2d 1372 (1994), is also intriguing. Although Michaels involved quite different facts, Michaels WAS a horribly-botched sex crime prosecution bred in some sort of stew of community paranoia about sex abuse, and defense counsel's suggestion in DeJesus that "mass hysteria" about sex crimes is upon us again cannot be lightly dismissed.
Disclosure: I am proud to say that a former student of mine -- Robert Rosenthal -- played a prominent part in getting the convictions in Michaels overturned.

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