EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, November 12, 2008

Hard Cases Make (Not So) Bad Law: Vermont Senators Remove Controversial Recommendations From Sex Offender Plan

It is often said that hard cases make bad law, but it appears that Vermont state senators avoided this aphorism by failing to include 5 controversial recommendations in a plan that was prompted by such a hard case.  43 year-old Michael Jacques is charged with the rape and killing of 12-year-old Brooke Bennett, his niece.  And while he had been indicted by a federal grand jury and could face the death penalty, "[m]any Vermonters, including Gov. James Douglas and Lt. Gov. Brian Dubie, clamored for the Legislature to pass additional measures to protect children from sexual predators following Bennett's death."

This clamor led the Senate Judiciary Committee to draft a 34-point plan, which it will hand over to Senate President Pro Tem Peter Shumlin in Montpelier today.  Among the points in the plan is a new charge — aggravated sexual assault on a child under 16 — that would allow prosecutors to seek a mandatory 25-year minimum sentence at their discretion.

Among the points not included, however, are 5 controversial recommendations:

     -reinstating the death penalty, which was proscribed in the Vermont in 1964;

     -requiring civil commitments for violent sex offenders at the end of their prison sentences;

     -an enhanced judicial accountability measure that would allow the General Assembly to vote by roll call when voting to retain judges;

     -complying with the Adam Walsh Act of 2005; and

     -allowing a defendant's prior bad acts to be accessible to law enforcement and admissible in court

My colleague Corey Yung is better suited to address these first 4 points over at Sex Crimes, but I will address the last point.  At least with regard to the admissibility of evidence of a defendant's prior bad acts, the point that was not included would have brought Vermont in line with the much despised Federal Rules of Evidence 413-415.

Basically, for every other type of accused, we don't allow evidence of their prior bad acts to prove that they have a propensity to act in a certain matter and that they likely acted in conformity with that propensity by committing the subject crime.  Thus, evidence that a man charged with robbing a bank previously robbed another bank would be inadmissible because its probative value relies on the aphorism, "Once a bank robber, always a bank robber."

Enacted in the 1990s, however, to increase the likelihood of sexual offense convictions, Federal Rules of Evidence 413-415 remove this propensity character evidence proscription for sex offenders and allow bad act evidence to prove, "Once a sex offender, always a sex offender."  As, I said above, hard cases make bad law, but is nice to see that, at least for now, Vermont senators avoided the same trap that caught their D.C. counterparts.


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