What is the test for admissible evidence in a sexual assault case?

California, United States of America


The following excerpt is from People v. Herr, E073223 (Cal. App. 2021):

"'"[T]he admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence."'" (People v. Fayed (2020) 9 Cal.5th 147, 191.) "The conduct may also have occurred after the charged events, so long as the other requirements for admissibility are met." (People v. Leon (2015) 61 Cal.4th 569, 597.)

"The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that

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the defendant '"probably harbor[ed] the same intent in each instance."'" (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)

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