Wednesday, August 13, 2008
After The Enactment: California Court Finds New Evidence Provision Doesn't Violate Ex Post Facto Clause
The recent opinion of the Court of Appeal of California in People v. Dallas, 2008 WL 2952782 (Cal.App. 4th Dist. 2008), contains what I regard as an unsatisfactory (non)application of the ex post facto clause of the Constitution. In Dallas, Thomas Avery Dallas was convicted of felony infliction of an injury on a child and felony child abuse because he allegedly struck his girlfriend's nine month old son. Because Dallas was charged with an offense involving child abuse, California Evidence Code Section 1109(a)(3) allowed for the admission of prior acts of child abuse by Dallas. Specifically, California Evidence Code Section 1109(a)(3) states that:
"Except as provided in subdivision (e) or (f) and subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendant's commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. Nothing in this paragraph prohibits or limits the admission of evidence pursuant to subdivision (b) of Section 1101."
Accordingly, the prosecution admitted evidence of heinous acts that Dallas allegedly committed during a prior relationship with a woman named Crystal, who had a four year old son named J.S. Specifically, the state presented evidence that Dallas:
-scalded J.S.'s genitals;
-suffocated J.S. with a trash bag;
-held J.S. underwater;
-broke J.S.' arm; and
There was just one problem: California Evidence Code Section 1109(a)(3) was not enacted until after Dallas allegedly committed the subject crime. This potentially triggered the ex post facto clause of the Constitution. The court began by noting that in Calder v. Bull, 3 U.S. 386, 390 (1798), the Supreme Court found that the ex post facto clause proscribes the retroactive application of four types of laws:
"(1) laws which criminalize and authorize punishment for acts which were innocent when done; (2) laws which aggravate a crime or make it greater than when it was committed; (3) laws which inflict a greater punishment than the law annexed to the crime when committed; and (4) '[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.'"
The Court then noted, however, that Dallas' appeal was unavailing based upon Supreme Court precedent, such as its opinion in Carmell v. Texas, 529 U.S. 513 (2000). In Carmell, the defendant was convicted of several sex-related crimes against his stepdaughter, who during some of the acts was 14 years-old or older. When these alleged acts occurred, the Texas statute criminzalizing them indicated that a defendant could not be convicted under the statute for sexual crimes against a minor 14 years-old or older solely based upon the testimony of the alleged victim; instead, there had to be some other evidence corroborating the alleged victim's testimony. Before the defendant's trial, however, Texas amended the controlling statute so that it no longer required corroboration.
After trial, the defendant was convicted despite the fact that the stepdaughter's testimony was not corroborated. The defendant's appeal eventually reached the United States Supreme Court, which held that application of the amended statute violated the ex post facto clause because it changed the quantum of evidence that was legally sufficient for a conviction. The Court then contrasted the Texas statute from the rules of evidence. It held that "[o]rdinary rules of evidence, for example, do not violate the Clause....Rules of that nature are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in any given case. More crucially, such rules, by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption."
Conversely, the Court of Appeal of California found that California Evidence Code Section 1109(a)(3) was an "[o]rdinary rule of evidence" that "does not speak to the sufficiency of the evidence it renders admissible," making its application to Dallas permissible under the ex post facto clause. Of course, Dallas recognized a problem with this conclusion, which was that California Evidence Code Section 1109(a)(3) is not "evenhanded" and can only benefit the State by allowing it to admit evidence against the criminal defendant. The Court of Appeal of California acknowledged this point, but found that its decision was proper because the Supreme Court in Carmell considered it "more crucial[ ]" that the Texas amendment was, in effect, a rule regarding the sufficiency of the evidence, not the admissibility of evidence-it "subvert[ed] the presumption of innocence, because [it] concern[ed] whether the admissible evidence [wa]s sufficient to overcome the presumption."
As I have noted before, one of the biggest problems I have with Carmell and its progeny is that Texas' amendment of its criminal statute in Carmell did not alter a "legal rule of evidence" while amendments such as the creation of California Evidence Code Section 1109(a)(3) clearly altered a "legal rule of evidence." Indeed, I can't think of a single rule of evidence which is a rule regarding the sufficiency of evidence, meaning that, despite the fact that Calder v. Bull proscribed the retroactive application of altered rules of evidence, under current precedent no altered rule of evidence can ever violate the ex post facto clause. In my mind, this can't make sense, and let's look at the language of Calder v. Bull to see why.
In Calder v. Bull, the Supreme Court proscribed the retrospective application of "'[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.'" So, the question then becomes whether California Evidence Code Section 1109(a)(3) altered the legal rules of evidence and received different testimony than the law required at the time of the commission of the alleged offense in order to convict Dallas. To me, the clear answer is that it did.
Before the enactment of California Evidence Code Section 1109(a)(3), Dallas could not have been convicted based in any part on evidence of past acts of child abuse. After its enactment, he could. Thus, California Evidence Code Section 1109(a)(3) allowed for the receipt of different testimony than the law required at the time of the commission of the alleged offense in order to convict Dallas.