Can an uncharged sex offence be used as propensity evidence in a sexual assault case?

California, United States of America


The following excerpt is from People v. Mendoza, E064825 (Cal. App. 2017):

inadmissible by [Evidence Code, s]ection 1101, if the evidence is not inadmissible pursuant to [Evidence Code, s]ection 352." (Evid. Code, 1108, subd. (a).) In other words, as long as the uncharged sex offense is not barred by Evidence Code section 352, it may be used as propensity evidence in sex crime cases to prove the defendant is disposed to commit such crimes and thus guilty of the charged offense. (People v. Falsetta (1999) 21 Cal.4th 903, 911-912, 920, 923.) In determining whether the evidence should be excluded under Evidence Code section 352, the court should examine whether the probative value of the evidence "is substantially outweighed by the probability that its admission will necessitate undue time consumption or create substantial danger of undue prejudice, confusing the issues, or misleading the jury." (People v. Loy (2011) 52 Cal.4th 46, 61-64.)

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