County prosecutor, sheriff favor passage of Amendment 2

Wednesday, October 29, 2014

Proposition would allow propensity evidence in child sex cases

Johnnie Cox, Barry County prosecuting attorney, and Mick Epperly, Barry County sheriff, have come out in favor of Amendment 2, which is set to be voted on in the Tuesday General Election.

Amendment 2, if passed, would allow for relevant evidence of prior criminal acts, also known as propensity evidence, to be admissible in court in prosecutions of sexual crimes involving a victim under 18 years old.

Cox said the amendment is an effort by victim advocacy groups, and he supports that change.

"The way it is now, the only time propensity evidence can come in is if the defendant takes the stand, or if the defense makes a mistake that allows it to become admissible," Cox said. "As the current prosecuting attorney, I am in favor of its passing. There is also still a safeguard in place that would allow the judge to determine if it is admissible."

Cox is running unopposed for the associate judgeship being vacated by Judge Victor Head.

Any evidence from prior convictions must also be from sex crime convictions against victims under the age of 18.

Cox said there benefit to allowing propensity evidence is it provides the whole picture.

"The benefit is that the jury gets to hear the whole story," he said. "Also, in crimes against children, most of the evidence is based on the child's word, and it's tough to find physical evidence."

Epperly said he is also in favor of passing the amendment.

"The prosecuting attorney should be able to use that evidence in court so they can show someone's past history," Epperly said. "If someone does not have a history, great, but it should be known if there is something like that in someone's past."

Cox said Missouri is not the only state that has passed or is attempting to pass such an amendment.

"Other states have always had this, and the feds do it also," he said. "It's not like Missouri is on the cutting edge here. We are just trying to catch up."

Cox said he has had a few cases in the past where propensity evidence would have made a difference.

"We had a few cases where we knew we would not be able to get prior evidence unless the defendant testified," he said. "And, the jury needs all the information to make a decision."

Amendment 2 got its start in the office of State Rep. John McCaherty, R-High Ridge, who received a letter from a constituent whose daughter had been sexually abused, and no charges were brought against the abuser. Propensity evident was ruled inadmissible by the Missouri Supreme Court in 2007.

Critics of the proposition say propensity evidence may include unproven acts, creating a trial within a trial. Critics also say propensity evidence could create prejudice in the jury, as it uses past behaviors to estimate the likelihood the defendant committing the crime for which he or she is on trial.

Those in favor of the amendment say propensity evidence is necessary to prevent repeat offenders, especially in cases of sexual assault.

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