Can a jury consider evidence of uncharged sexual crimes committed by a defendant as evidence of sexual misconduct?

California, United States of America


The following excerpt is from People v. Smith, 2d Crim. No. B278805 (Cal. App. 2018):

Evidence of the uncharged sexual offenses was admitted pursuant to Evidence Code section 1108. "Subject to Evidence Code section 352, Evidence Code section 1108 permits a jury to consider prior incidents of sexual misconduct for the purpose of showing a defendant's propensity to commit offenses of the same type and essentially permits such evidence to be used in determining whether the defendant is guilty of a current sexual offense charge. [Citation.]" (People v. Dejourney (2011) 192 Cal.App.4th 1091, 1103, fn. omitted.) Appellant argues, "Section 1108 must be struck down as a violation of due process because the inference that the commission of one or more listed sexual offenses gives rise to a propensity to commit a separate and distinct charged sexual offense violates the due process requirement that permissible inferences 'be based on a rational connection between the fact proved and the fact to be inferred.' [Citations.]"

Our Supreme Court upheld Evidence Code section 1108 against a similar due process challenge in People v. Falsetta, supra, 21 Cal.4th at p. 922. The court concluded: "[T]he case law

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