Should Jackson’s Past Be Fair Game?

The judge in the Michael Jackson case has ruled that the jury will be permitted to hear evidence concerning alleged -- not proven -- past acts of child molestation by Jackson. Is the ruling fair and appropriate?

Santa Barbara County Superior Court Judge Rodney S. Melville clearly has the authority to allow the jury to hear these allegations. Under a state law adopted in the late 1990s, a trial court must allow the evidence unless the judge finds that it would be overwhelmingly unfair to do so.

The justification for the law is twofold. First, there is research suggesting that certain types of sexual offenders are highly likely to repeat such crimes. (The law is also applicable to sex crimes other than child molestation.) In other words, there is an assumption that the evidence will be of great value to the jury. Second, proving cases of sexual assault and child molestation is difficult because the accused and the victim are often the only witnesses, and the accused can appear more credible than the victim. The rule seeks to even the balance and make conviction more likely by providing additional, and extremely persuasive, evidence of guilt.

There are, however, serious flaws in the assumptions underlying the legislation. Even if perpetrators of certain types of sexual crimes are more likely to commit similar crimes again, the recidivism rate is nowhere near as high as it is for other criminals, including thieves. Yet the law does not allow the prosecution in theft cases to offer evidence that a person has committed other thefts so as to permit the jury to apply the “once a thief, always a thief” reasoning.

And why not? Because it is a fundamental position of U.S. law that a person is tried not for who he or she is, but for how he or she acted on a particular occasion -- the occasion that gave rise to the charges. Allowing the jury to hear evidence of past similar crimes -- charged and proven or not -- will certainly lead to more wrongful convictions because the jury will overvalue the evidence as an indicator of guilt or reason that it hardly matters whether the person actually committed the current crime because getting him or her off the streets will prevent future crime.

True, in many cases the right person will be put away. But what of those cases in which past behavior is just that, in the past, and the person charged is innocent? What if the jury assumes too much and convicts an innocent person?

This is not fantasy, nor is it necessarily even rare. Wrongful convictions are already a problem in our system, as indicated by the number of death row inmates who have been released as a result of DNA evidence demonstrating that they could not have committed the crimes.

Here’s one way that the rule could add to our mistakes. Allowing the prosecution to present evidence of alleged similar crimes not only affects the trials of people accused, it affects who will be accused. Society demands that police solve crimes. This makes it essential for police to “clear” cases as quickly as possible. Given that past history will be admissible, it will be easy for police to succumb to the temptation to “round up the usual suspects” when a certain type of crime is committed. Police databases contain the names of those who allegedly committed such crimes before -- perhaps even if they were merely arrested and not charged.

In the end, the decision whether to allow evidence of an accused’s similar crimes is largely one of values. Fear of crime victimization is rampant in our society. Despite statistics showing that the real rate of crime is actually declining over time, we are more afraid than ever. Clearly, some people are willing to live with wrongful criminal charges and wrongful convictions, especially if it also means more guilty people are convicted. But others consider the cost of wrongful convictions too high.

So what about Monday’s ruling in the Michael Jackson case? Certainly the evidence will be extremely damaging to his defense, and if he is guilty, the rule will have served the cause of justice. But if he is not guilty, and if the evidence leads the jury to convict him, we should ask whether we are really better off overall.

None of us like to think of ourselves as one of the “usual suspects,” but the truth is that the line between never being accused of a crime and being wrongly accused is not that great, and rules permitting evidence of prior crimes narrow the line even further. That just might be too high a price to pay.