Defense Attorneys Fight Prosecutors Prejudicing the Jury with Extraneous Acts, Wrong, Crimes
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
It is the firm belief of among defense attorneys that a criminal defendant should only have to defend against the charge leveled in a charging instrument: a bill of information or a grand jury indictment. But that is not the case in nearly every sexual assault case, especially those involving children. The prosecution will generally find a way to introduce what is called “extraneous offense evidence,” which is uncharged sexual offenses or bad acts involving either the victim or someone else. Thus, a sexual assault defendant frequently finds himself having to defend against not only the crime charged but against uncharged acts as well. Extraneous offense evidence is the most prejudicial and damaging evidence that can be introduced into a sexual assault trial because it usually involves nothing more than the classic “he said/she said” evidence—evidence the State generally does not have sufficient probable cause to bring in an indictment. In fact, in many instances the accusations have been rejected either by the district attorney’s office or grand jury as being insufficient to formally indict.
Texas Rule of Evidence 404(b) is the primary statute governing the admission of “other crimes, wrongs or acts.” 404(b) prohibits extraneous offense evidence from being introduced at trial to prove the defendant is more likely than not to have committed the crime charged because that is the nature of his character. The statute, however, does permit the use of extraneous offense evidence “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
This rule requires the prosecution, upon being served with a timely request by the defendant, to provide the defense notice of its intention to use extraneous offense evidence. 1/ The defendant can then file pre-trial written objections to the prosecution’s intention to use the extraneous offense evidence and request that the trial court provide findings of fact and conclusions of law as to why it will allow the evidence to be introduced at trial.
After proper objection, the trial court’s decision of whether or not to permit extraneous offense evidence is then governed by Texas Rule of Evidence 403. This rule requires the trial court to conduct a balancing test under which it weighs the probative value of the extraneous offense evidence against its undue prejudice, confusion of the issues, tendency to mislead the jury, and undue delay. 2/ The court is permitted to consider the following factors in its balancing analysis: (more…)
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