Prior Convictions Can Be Used Against You In “He Said/She Said” Sexual Assault Cases

A recent case from the Dallas Court of Appeals (Woodland vs State) discusses the use of prior convictions in “he said/she said” sexual assault cases. First, what is a “he said/she said” sexual assault case? It’s when the main evidence in a case is the complaining witness testifies, and so does the defendant. We are going to skip the issue of if a defendant should or should not testify in right now.

Can prior convictions be used against a defendant in sexual assault cases? The answer is, probably if the prior convictions are germane to the new offense. So a DWI might not be admitted, but a case regarding sexual assault or sexual misconduct can be. There is a general rule that prior convictions may not be used to show “character conformity”, that is, that the defendant is guilty because he is a criminal. But, in sexual assault cases there is a special provision, 38.37 of the Code of Criminal Procedure, that allows prior convictions to be used against a defendant.

Here is a quote from the court-

Article 38.37 of the Texas Code of Criminal Procedure provides an exception to the general rule in prosecutions for certain sex offenses against children, including the one charged here. See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(a)(1)(B). Under that statute, evidence of other sex crimes committed by the defendant may be admitted “for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.” Id. 38.37, § 2(b).

So character conformity is a permitted use of prior conviction in sex crime cases. Ther is still another balancing test to be performed under Rule 403 of the Rules of Evidence. Rule 403 says that –

Relevant evidence may be excluded under rule 403 only if its probative value is substantially outweighed by the danger of unfair prejudice. Newton v. State, 301 S.W.3d 315, 319 (Tex. App.—Waco 2009, pet. ref’d).

But, the balancing test presumes probative value, and therefore admissibility.

Under rule 403, it is presumed that the probative value of relevant evidence exceeds any danger of unfair prejudice. Id. The rule envisions exclusion of evidence only when there is a “clear disparity between the degree of prejudice of the offered evidence and its probative value.” Id.

And in “he said/she said” cases there is case law that says exclusion should not be the preferred outcome. That the courts should favor letting the evidence in.

Because Rule 403 permits the exclusion of admittedly probative evidence, it is a remedy that should be used sparingly, especially in “he said, she said” sexual molestation cases that must be resolved solely on the basis of the testimony of the complainant and the defendant. Hammer v. State, 296 S.W.3d 555, 568–69 (Tex. Crim. App. 2009).

So, in a “he said/she said” sexual assault case, a prior conviction regarding a sexual offense is very likely to come in based on the current case law.