Smart Decision 2014: Amendment 2 involves child sex cases
COLUMBIA - One issue on the November ballot has attorneys at odds.
If Missouri voters pass Amendment Two, it would change the state constitution to allow prosecutors to use propensity evidence from past criminal acts against defendants in sex-related cases involving victims under the age of 18. Charged and non-charged criminal acts may be included.
According to Ballotpedia, propensity evidence is, "Evidence that a person has engaged in unlawful behavior in the past." It is used to demonstrate the person is likely to engage in such behaviors again, according to the website. The judge would be able to dismiss the evidence if unfair prejudices outweigh the propensity evidence.
Rep. John McCaherty, R-St. Louis County, sponsored the joint resolution that put Amendment Two on the ballot. He said the need for such an amendment came after constant fall out in child sex cases.
"As adults, we can sit in a court room and describe exactly what happened to us and exactly what someone who abused us or did something to us did," McCaherty said. "A child cannot do that. They do not have the vocabulary to express themselves in a way that people are going to be able to understand what's going on."
A local criminal defense attorney, Chris Slusher, opposes Amendment Two because he said it violates a defendant's rights and changes a long tradition of courts not allowing such evidence in child sex cases.
"It puts the defendant in the unfair position of having to defend more than just the charged crime but other allegations that could be very old," Slusher said.
The use of such evidence does not violate the U.S. Constitution. It's allowed in Federal courts, along with courts in 30 other states. McCaherty said Missouri is among the most restrictive in terms of using propensity evidence.
Slusher said, "Missouri's amendment is broader than many of those other states allow and the federal courts and I think there are more controls under those other laws than what Missouri has done. Fundamentally, I guess I would say I do disagree with the idea."
Propensity evidence was allowed in child sex cases in Missouri in the past under a revised statute. In a 2005 court case, Ellison v. State, the Missouri Supreme Court ruled against it, stating it was unconstitutional. Prior to the case, the state legislature tried twice to pass legislation on the issue, most recently in 2007. The Missouri Supreme Court struck down both bills as unconstitutional.
The American Civil Liberties Union of Missouri opposes the amendment.
"The Missouri Supreme Court has repeatedly reminded us: in America we are tried only on the crime charged," Executive Director of ACLU of Missouri Jeffrey Mitman said. "Missourians should avoid the temptation to allow evidence of uncharged crimes to be presented at trial, simply to demonstrate a propensity or tendency to commit a crime."
Boone County's Prosecuting Attorney, Dan Knight, said the amendment is needed because of the inherent nature of child sex crimes.
"In most instances, these crimes are committed behind closed doors in secret," Knight said. "They are committed by people in positions of trust. Often times those people threaten and intimidate victims so that they do not report these crimes.
He said it is important for Missouri courts to allow propensity evidence, especially in cases where a child may be too upset to testify.
But Slusher said allowing propensity evidence creates too many complications for an adequate defense.
"You are put in a position to defend your client against potentially damaging information that it could be years old, and it is difficult and we [prosecutors] feel it would be a violation of the client's rights," Slusher said.
The Missouri Senate voted 30-2 to pass the measure as the House approved it by 131-26.
Voters will see the following language at the ballot Nov. 4, "Shall the Missouri Constitution be amended so that it will be permissible to allow relevant evidence of prior criminal acts to be admissible in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age? If more resources are needed to defend increased prosecutions additional costs to governmental entities could be at least $1.4 million annually, otherwise the fiscal impact is expected to be limited."
(Editor's note: This story has been corrected to clarify vote totals in the House and Senate.)