[DV_listserv] Other Acts evidence

[Domestic Violence issues]

Prosecutors:

Earlier this year, the Oregon Supreme Court issued its ruling in State v. Williams (357 Or 1 (2015)). Williams is a child sex abuse case in which the prosecutor offered as a trial exhibit children's underwear from the defendant's home to prove that the defendant had a sexual interest in young girls and that his sexual touching of the victim was not accidental, as defendant was claiming. The trial court admitted the evidence. Defendant was convicted.

The Supreme Court upheld the conviction. The court's opinion sets forth an analysis of the rules  governing  the admissibility of "other acts" evidence. This ruling has significantly changed the ability of prosecutors to use "other acts" evidence in all criminal prosecutions, not just child sex abuse cases. Most notably, the court ruled that OEC 404(4) supersedes OEC 404(3) re: the admissibility of evidence of a defendant's "other acts" in a criminal trial. Evidence of a defendant's "other acts" is generally admissible so as long as the evidence is relevant and does not violate due process (which requires a balancing test if the evidence is objected to by the defendant.) Also, "propensity" evidence may be admissible in child sexual abuse cases, and possibly in adult sex abuse and DV cases. Finally, it is important to remember that "[p]rosecutors should not rely on Court of Appeals decisions that have suggested that a trial court need not conduct OEC 403 balancing, because those cases may no longer be good law." (DOJ's Legal Bulletin: Admission of a Defendant's Other Acts: OEC 404(4) After State v. Williams, pp 6.)

DOJ's appellate division distributed an excellent summary of Williams' key holdings, identifies big questions left unanswered, and offers practice tips.  It is attached.

Recently, the Court of Appeals issued rulings on two cases, applying the Williams' holding:

State v. Horner:
http://www.publications.ojd.state.or.us/docs/A152003.pdf


State v. Brown:
http://www.publications.ojd.state.or.us/docs/A154684.pdf

Note: The Court of Appeals in Brown continues to decline to decide whether Williams requires
"traditional" OEC 403 balancing or more narrow "due process" balancing.



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