Judges would be allowed to decide whether juries would hear evidence of previous criminal acts in cases of sex crimes against minors, if voters approve Amendment 2 on the November ballot. Proponents say that would bring Missouri law in line with the standard used by federal courts and other states.
Platte County Prosecutor Eric Zahnd is the Co-Chairman of the campaign supporting Amendment 2. He says decisions by the Missouri Supreme Court have created what he calls the most restrictive law in the United States about the admission of such evidence, known as propensity evidence, in those cases.
“The federal government and other states specifically allow this information to be provided to juries,” Zahnd says.
Missouri uses a two-phase trial system that has a guilt phase and a sentencing phase. Zahnd says current law allows juries to hear propensity evidence when considering a sentence, but not while considering whether the accused is guilty of a crime or crimes.
Passage of Amendment 2 could result in juries being presented with information including about crimes a person was only accused of, or even acquitted of. Zahnd says that’s when the judge comes in.
“It’s much more likely that a judge is going to say, ‘If that person’s been found innocent of a crime then that’s going to be much more likely to be unduly prejudicial and not probative on this issue, so I’m not going to allow that evidence to be presented,” says Zahnd.
“This doesn’t necessarily allow any single piece of evidence to ever be admitted at trial,” Zahnd adds. “Instead it gives prosecutors the chance to advocate before a judge.”
Zahnd says he believes there are people on the streets today that might not be if propensity evidence had been allowed in their trials.
“I also believe this: There are countless numbers of trials that happen, children who have to go and testify against their abusers, that if that abuser knew that his past crimes were going to be presented to the jury, would never be tried because that person would then plead guilty,” says Zahnd. “We would spare countless numbers of children the pain and the trauma of going to trial.”
Zahnd says most or all other states have not had to ask voters whether such evidence should be allowed. He thinks the biggest challenge will be making sure voters understand the issue.
“We’ve got to educate people about what this constitutional amendment does and why it’s important,” says Zahnd.
The American Civil Liberties Union declined to comment on Amendment 2. The Missouri State Public Defender’s office has not responded to a request for comment.