Voters will decide tomorrow whether someone can be convicted of child sexual abuse if it appears they might be capable of such a thing. Constitutional Amendment Two would make child sexual abuse the only crime in Missouri in which a prosecutor can use incidents where no charges were ever filed to show a defendant might be capable of doing the latest crime he or she is accused of doing.

Boone County Prosecutor Dan Knight, with the Missouri Association of Prosecuting Attorneys, says Amendment Two will level the playing field. He says today’s standard is not fair. ‘Even if the defendant was convicted…of multiple child molestations…and did them in the same way that he or she is alleged to have committed the crime for which he or she is on trial, that information would not be admissible” under today’s standards, he says. But if Amendment Two is approved, that evidence could be used. But that, says defense attorney Bill Fleishaker of Joplin, further un-levels the field because “Child sex offenses are the only cases that I ever defend where the jury has a presumption of guilt. They really expect the defendant to prove them innocent regardless of the fact that the law says that the state has to prove them guilty.” The amendment leaves it up to the judge to decide if the propensity evidence should be admitted.  Fleishaker thinks that requires elected circuit judges to make decisions on the basis of criticism they might face in their re-election campaigns.  Knight says judges “have to make difficult decisions regardless of whether they’re elected or appointed through the Missouri Court Plan.”

Knight interview:

AUDIO: 12:46

Fleishaker interview:

AUDIO: 8:20

Ballot information from the Secretary of State’s office.   Official Ballot Title Constitutional Amendment 2 [Proposed by the 97th General Assembly (First Regular Session) HJR 16] Official Ballot Title: Shall the Missouri Constitution be amended so that it will be permissible to allow relevant evidence of prior criminal acts to be admissible in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age? If more resources are needed to defend increased prosecutions additional costs to governmental entities could be at least $1.4 million annually, otherwise the fiscal impact is expected to be limited.

Fair Ballot Language: A “yes” vote will amend the Missouri Constitution to allow evidence of prior criminal acts, whether charged or uncharged, to be considered by courts in prosecutions of sexual crimes that involve a victim under eighteen years of age. The amendment limits the use of such prior acts to support the victim’s testimony or show that the person charged is more likely to commit the crime. Further, the judge may exclude such prior acts if the value of considering them is substantially outweighed by the possibility of unfair prejudice to the person charged with committing the crime.   A “no” vote will not amend the Missouri Constitution regarding the use of evidence of prior criminal acts to prosecute sexual crimes. If passed, this measure will have no impact on taxes.