NEWPORT BEACH, Calif. — In a jury trial this week, Judge M. Mark Kelly ruled in favor of the prosecution’s request to introduce an alleged prior uncharged incident in the retrial of a single count of alleged sexual assault.
In her opening statement, Deputy District Attorney Tara Meath referenced an alleged prior uncharged incident involving the accused and the alleged victim, in addition to the single count of sexual assault for which the accused is on trial.
Before the jury entered the courtroom, defense counsel Thomas Edward argued that allowing the alleged prior incident would violate Evidence Code section 1108, which states that “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101,” and Evidence Code 1101, which states that “evidence of a person’s character or a trait of his or her character… is inadmissible when offered to prove his or her conduct on a specified occasion.”
In an Evidence Code section 352 analysis, the defense renewed all prior objections to the ruling. These rules of evidence dictate that character evidence is impermissible to show propensity to commit similar acts. Evidence Code section 352 outlines that a court “may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Judge Kelly subsequently ruled that he would allow the character evidence, despite defense objections citing Evidence Code sections 1108 and 1101, permitting the prosecution to introduce the alleged prior uncharged incident in addition to the incident on trial.
Despite defense arguments, Meath told the jury about two separate alleged incidents, one of which the accused is not charged with. Under an Evidence Code section 352 analysis, introducing this evidence could result in undue bias and confusion of the issues for the jury.
In his ruling on Evidence Code section 352, Judge Kelly stated that he believes it is “not substantially prejudic[ial]” for the jury to be aware of the second alleged incident.
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