Sex Offense Trials: The Path Forward for CJP § 10-923 – Sexually Assaultive Behavior

By Robert C. Bonsib, Esq. and Megan E. Coleman, Esq.

            This article will do a deep dive into Woodlin v. State, implications of the opinion, and practice pointers for practitioners and judges.

This summer, the Maryland Supreme Court decided Woodlin v. State, 484 Md. 253, (2023) (opinion by Eaves, J.), the first opinion interpreting Maryland’s Repeat Sexual Predator Prevention Act of 2018, Courts and Judicial Proceedings Article (“CJP”) § 10-923.

Section 10-923, titled “Evidence of other sexually assaultive behavior,” blows the door right off of what was previously a sliver of an opening for the common law exception to using propensity evidence in sexual assault cases.

Historically, Maryland common law prohibits using character evidence to show a person’s propensity to act in conformity with their prior bad acts. But, at sexual assault trials, a narrow common law exception permitted evidence of the defendant’s other sexually assaultive conduct that is both similar to the currently charged act and toward the same victim.

In 2018, that all changed. For certain sexual offenses, Section 10-923 now lets prosecutors introduce evidence of the defendant’s “other sexually assaultive behavior” involving a different victim, before or after the crime currently charged, and even if the other conduct yielded no conviction and involved a different type of victim (e.g., molesting a child versus date rape of an adult).

The prior limitation to the identical victim and similar act was cast aside for the overriding statutory purpose of helping the prosecutor establish the credibility of the victim of a sex crime at trial. Prosecutors “needed” this other-act evidence to help jurors believe their testifying victim. In many sex offense cases, the victim is a child and the prosecutor lacks other evidence to corroborate the minor’s account.

While the statute lays out the prerequisites to admission of this “evidence of other sexually assaultive behavior,” it does not speak expressly to the factors for deciding each prerequisite. Woodlin now gives circuit courts a non-exhaustive list of considerations.

The admissibility of evidence under CJP § 10-923 depends on two necessary events: (1) the State proving at a required hearing four criteria and (2) the circuit court exercising its discretion in favor of admissibility.

At the required hearing, the State first must satisfy four criteria: (1) the evidence is offered either to (i) prove a lack of consent or (ii) rebut an express or implied allegation that a minor victim fabricated a sexual offense, (2) the defendant had the opportunity to confront and cross-examine the witness or witnesses testifying to the sexually assaultive behavior, (3) the sexually assaultive behavior was proven by clear and convincing evidence at the required hearing, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. CJP § 10-923(e).

Even if the State satisfies these four criteria, the evidence is not necessarily admissible because the court then must exercise discretion whether to admit the evidence.

The Woodlin opinion addresses the fourth criterion, the probative value of the evidence versus the danger of unfair prejudice, under CJP § 10-923(e)(4). The Woodlin Court subdivided the fourth criterion into three categories and listed more factors to consider for CJP § 10-923(e)(4):

(1) Assessment of probative value;

• Similarity or dissimilarity of the acts to include:
  • Characteristics of the victim such as:
    • Victim’s age
    • Biological sex
    • Gender identity
    • Status (mental state, physical prowess, capabilities, etc.)
  • Nature of defendant’s conduct such as:
    • Method of perpetrating the sexual offenses (use of violence/weapons, drugs to incapacitate, abuse of position of trust, etc.)
    • Sexual offense itself (specific acts committed, location of assault, etc.)
  • The more similar, the more probative
• Temporal proximity and intervening circumstances:
  • The closer in time between other behavior and crime charged the more probative it becomes to proving crime charged
  • Intervening circumstance of incarceration may explain the lapse between the assaults
• Frequency of sexually assaultive behavior:
  • The more frequent the defendant’s other sexually assaultive behavior, the more probative it becomes of the crime charged

(2) Assessment of unfair prejudice;

• Overshadowing of the crime charged
  • Suggestion that only sexually assaultive behavior that is comparable to, or less than, that of the charged conduct should be admitted so as to avoid heinous acts overshadowing crime charged
• Jury’s knowledge that a defendant was punished previously
  • If jury knows defendant was punished for past conduct, or was convicted, jury less likely to infer that defendant escaped punishment and want to hold him accountable this time for past act
  • State may attempt to use evidence that did not result in a conviction or was not charged

(3) Assessment of the ultimate discretionary issue of admissibility after satisfaction of subsection CJP § 10-923(e)(1)-(4)

• Need (do not consider this in above analysis)
  • When victim’s testimony in current case is primary or only evidence of underlying charge, and defendant challenges credibility of victim, need for other evidence is high
  • Although need increases in such circumstances, “the risk that a jury will use such evidence for an improper propensity purpose also increases”
  • Court recognized this is difficult factor to balance but said it is one the circuit courts diligently must consider
• Clarity and manner
  • Clarity with which State can prove other sexually assaultive behavior
    • Conduct resulting in conviction meets clear and convincing evidence standard required under CJP § 10-923(e)(3)
    • State says conviction is more probative
  • Manner in which it seeks to prove other sexually assaultive behavior
    • State says limit to a few instances that can be presented without a mini trial
    • 5-403 allows exclusion of relevant evidence not just based on unfair prejudice, but if evidence would confuse the issues, mislead the jury, amount to undue delay or waste of time, be cumulative evidence

The Woodlin Opinion emphasizes that the General Assembly intended to give circuit courts wide discretion so they cannot be limited in what they can consider in weighing the probative value against potential dangers of unfair prejudice of “evidence of other sexually assaultive behavior.”

PRACTICE POINTERS

            Prosecutors: You are the party that benefits from this statute, but remember, you have the burden to comply with its terms.

First, you shall file a motion of intent to introduce evidence of sexually assaultive behavior at least 90 days before trial or at a later time if authorized by the court for good cause. CJP § 10-923(c)(1).

Second, the motion cannot be a boilerplate notice of intent to introduce evidence under this statute at trial. Rather, the statute requires that the motion “shall include a description of the evidence” along with “any other information required to be disclosed under Maryland Rule 4-262 or 4-263.” CJP § 10-923(c)(2), (3).

            Defense Attorneys: You need to ask the court to limit the other “sexually assaultive behavior” to the act, time, place, and conviction if it resulted in one – much like what you do in the context of Rule 5-609. Do not allow the State to introduce salacious details underlying the act. Limit the scope of this evidence that the State can use. The Woodlin opinion makes clear that the trial court will not do this sua sponte and the party needs to make the request.

Also, it is “incumbent upon the parties to argue any factor they deem relevant or applicable” – or else it will be forfeited on appeal. Make sure you adequately assert each and every ground in opposition that you can think of at the trial level. Remember that the proposed factors are not mandatory or all-inclusive. If there are other reasons why you believe the State has not met its burden for admissibility, do not be shy to articulate it to the trial court.

            Court: Judges “shall” hold a hearing outside the presence of the jury to determine the admissibility of sexually assaultive behavior. CJP § 10-923(d).

Before the evidence can be admitted, the court must “state on the record” certain findings. CJP § 10-923(e).

The court must find and state the purpose for which the evidence of sexually assaultive behavior is being admitted, i.e., proof of lack of consent or rebut allegation that minor fabricated the sexual offense. CJP § 10-923(e)(1).

The court must find and state that the defendant had an opportunity to confront and cross-examine the witness testifying to the sexually assaultive behavior. CJP § 10-923(e)(2).

The court must find and state that the sexually assaultive behavior was proven by clear and convincing evidence. CJP § 10-923(e)(3).

The court must find and state that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. CJP § 10-923(e)(4).

The court should also ensure that the “sexually assaultive behavior” consists of an act that meets the definition in CJP § 10-923(a)(1)-(5), and the court should ensure that the defendant is currently on trial in a criminal case for a sexual offense that is (1) a sexual crime under Title 3, Subtitle 3 of the Criminal Law Article (“CL”); (2) Sexual Abuse of a minor under CL 3-602; or (3) Sexual abuse of a vulnerable adult under CL § 3-604.

Remember that the list of factors from Woodlin is not all-inclusive and the court can rely on any other relevant factor for or against admissibility.

The Woodlin Opinion also suggests that the court exercise its discretion to balance unfair prejudice versus probative value “potentially twice (in determining whether the State can satisfy subsection (e)(4) and in determining whether to admit the evidence after it finds that the State has satisfied (e)(1)-(4)). A footnote in the opinion also suggest that the trial court really exercises discretion at each and every step.

AREAS NOT YET DECIDED BY THE APPELLATE COURTS

            What happens if the other sexually assaultive behavior resulted in a guilty plea, rather than a trial, and pertains to a different victim than in the trial in which the State seeks to admit the evidence?

In Woodlin, defense counsel argued that the State could not satisfy the confrontation requirement under CJP § 10-923(e)(2) requiring the court to find that the defendant had an opportunity to confront and cross-examine the witness testifying to the sexually assaultive behavior. Defense counsel argued that the prior offense resulted in a plea and the State only intended to call an officer at trial who would introduce the plea transcript of the prior offense. The court overruled the objection and allowed the plea transcript to come in at trial along with a true test copy of his prior conviction. However, on appeal, neither the Appellate Court nor the Supreme Court decided whether the trial court complied with this provision of the statute when it introduced a plea transcript over objection when the defendant never had the opportunity to cross-examine the first victim.

The language of CJP § 10-923(e)(2) will likely need to be further refined by the General Assembly and/or interpreted by the Maryland courts. It reads: “The defendant had an opportunity to confront and cross-examine the witness or witnesses testifying to the sexually assaultive behavior[.]” The “sexually assaultive behavior” is the other conduct, not the conduct that the defendant is on trial for. Thus, if a police officer is merely called to introduce a record of a plea hearing, it does not seem that would provide the defendant with a meaningful right to cross examine the witness to the sexually assaultive behavior.

On the flip side, perhaps there is no right to cross-examination if the defendant previously waived his right to cross-examine a prior victim when the defendant entered a guilty plea. Maybe the statute would be amended in that instance to read that the court does not need to provide an opportunity to confront a witness about the other sexually assaultive behavior where the defendant has waived his right to cross-examination and has pleaded guilty to the offense.

            Is the need factor really just bootstrapping for an otherwise weak prosecution? What is the scope and what are the limitations, if any?

The Woodlin Opinion recognizes that “As the State lacks other evidence to carry its burden at trial, the probative value of the other sexually assaultive behavior increases, as does the State’s need for such evidence.” The Court then drops footnote 24 which reads: “Nothing we say should be read as permitting the State to use propensity evidence in lieu of its obligation to prove beyond a reasonable doubt a defendant’s guilt based on the evidence related to the offense currently charged.”

But ultimately, that is what is going to happen. If the State’s case is merely a credibility contest, with no other evidence corroborating the victim’s account, the minute that defense counsel asks a sole question on cross-examination, the victim’s credibility is put in issue and the floodgates have opened for the State to bring in propensity evidence of the defendant to argue to the current jury that you should believe this victim because this defendant has done it before to someone else.

What if the prior conviction or accusation was based upon the prior victim’s word alone and there was no corroborative evidence in the prior offense?

This begs the question – what is the “proper” propensity purpose vs. the “improper” propensity purpose. The statute doesn’t say anything about a limiting instruction – and what would the limiting instruction be? To only use the other sexually assaultive behavior to determine if the victim in this case is telling the truth? To not use the evidence as substantive evidence that the current offense actually happened even though you have now heard evidence that the defendant did this on another occasion? Should the jury be told that the proof of the prior occasion was only clear and convincing evidence and might not have been proof beyond a reasonable doubt which is needed for a criminal conviction?

If the only evidence in this case is the testimony of the victim, then are we essentially telling the jury to use this as evidence to find that the victim’s word is Gospel?

How will this evidence be used by the prosecutor against a testifying defendant? Can the prosecutor use it to challenge the defendant on cross-examination, asking him you did it before but you are saying today that you did not do it to this person?

The only certainty is that the use and interpretation of this statute is ripe for review by the appellate courts. Object, argue, adequately state reasons, preserve, appeal!