Sex Offense Trials: The Path Forward for CJP § 10-923

By: Megan E. Coleman, Esq.

This summer, the Maryland Supreme Court decided Woodlin v. State, No. 22, Sept. Term, 2022 (July 26, 2023) (opinion by Eaves, J.), the first opinion interpreting Maryland’s Repeat Sexual Predator Prevention Act of 2018, Courts and Judicial Proceedings Article (“CJP”) § 10-923.

Section 10-923, titled “Evidence of other sexually assaultive behavior,” blows the door right off of what was previously a sliver of an opening for the common law exception to using propensity evidence in sexual assault cases.

Historically, Maryland common law prohibits using character evidence to show a person’s propensity to act in conformity with their prior bad acts. But, at sexual assault trials, a narrow common law exception permitted evidence of the defendant’s other sexually assaultive conduct that is both similar to the currently charged act and toward the same victim.

In 2018, that all changed. For certain sexual offenses, Section 10-923 now lets prosecutors introduce evidence of the defendant’s “other sexually assaultive behavior” involving a different victim, before or after the crime currently charged, and even if the other conduct yielded no conviction and involved a different type of victim (e.g., molesting a child versus date rape of an adult).

The prior limitation to the identical victim and similar act was cast aside for the overriding statutory purpose of helping the prosecutor establish the credibility of the victim of a sex crime at trial. Prosecutors “needed” this other-act evidence to help jurors believe their testifying victim. In many sex offense cases, the victim is a child and the prosecutor lacks other evidence to corroborate the minor’s account.

While the statute lays out the prerequisites to admission of this “evidence of other sexually assaultive behavior,” it does not speak expressly to the factors for deciding each prerequisite. Woodlin now gives circuit courts a non-exhaustive list of considerations. 

The admissibility of evidence under CJP § 10-923 depends on two necessary events: (1) the State proving at a required hearing four criteria and (2) the circuit court exercising its discretion in favor of admissibility.

At the required hearing, the State first must satisfy four criteria: (1) the evidence is offered either to (i) prove a lack of consent or (ii) rebut an express or implied allegation that a minor victim fabricated a sexual offense, (2) the defendant had the opportunity to confront and cross-examine the witness or witnesses testifying to the sexually assaultive behavior, (3) the sexually assaultive behavior was proven by clear and convincing evidence at the required hearing, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. CJP § 10-923(e).

Even if the State satisfies these four criteria, the evidence is not necessarily admissible because the court then must exercise discretion whether to admit the evidence.

The Woodlin opinion addresses the fourth criterion, the probative value of the evidence versus the danger of unfair prejudice, under CJP § 10-923(e)(4). The Woodlin Court subdivided the fourth criterion into three categories and listed more factors to consider for CJP § 10-923(e)(4):

(1) Assessment of probative value;

• Similarity or dissimilarity of the acts to include:
  • Characteristics of the victim such as:
    • Victim’s ageBiological sexGender identityStatus (mental state, physical prowess, capabilities, etc.)
    Nature of defendant’s conduct such as:
    • Method of perpetrating the sexual offenses (use of violence/weapons, drugs to incapacitate, abuse of position of trust, etc.)Sexual offense itself (specific acts committed, location of assault, etc.)
  • The more similar, the more probative
• Temporal proximity and intervening circumstances:
  • The closer in time between other behavior and crime charged the more probative it becomes to proving crime charged
  • Intervening circumstance of incarceration may explain the lapse between the assaults
• Frequency of sexually assaultive behavior:
  • The more frequent the defendant’s other sexually assaultive behavior, the more probative it becomes of the crime charged

(2) Assessment of unfair prejudice;

• Overshadowing of the crime charged:
  • Suggestion that only sexually assaultive behavior that is comparable to, or less than, that of the charged conduct should be admitted so as to avoid heinous acts overshadowing crime charged
• Jury’s knowledge that a defendant was punished previously:
  • If jury knows defendant was punished for past conduct, or was convicted, jury less likely to infer that defendant escaped punishment and want to hold him accountable this time for past act
  • State may attempt to use evidence that did not result in a conviction or was not charged

(3) Assessment of the ultimate discretionary issue of admissibility after satisfaction of subsection CJP § 10-923(e)(1)-(4);

• Need (do not consider this in above analysis):
  • When victim’s testimony in current case is primary or only evidence of underlying charge, and defendant challenges credibility of victim, need for other evidence is highAlthough need increases in such circumstances, “the risk that a jury will use such evidence for an improper propensity purpose also increases”
  • Court recognized this is difficult factor to balance but said it is one the circuit courts diligently must consider
• Clarity and manner:
  • Clarity with which State can prove other sexually assaultive behavior
    • Conduct resulting in conviction meets clear and convincing evidence standard required under CJP § 10-923(e)(3)State says conviction is more probative
  • Manner in which it seeks to prove other sexually assaultive behavior:
    • State says limit to a few instances that can be presented without a mini trial
    • 5-403 allows exclusion of relevant evidence not just based on unfair prejudice, but if evidence would confuse the issues, mislead the jury, amount to undue delay or waste of time, be cumulative evidence

The Woodlin Opinion emphasizes that the General Assembly intended to give circuit courts wide discretion so they cannot be limited in what they can consider in weighing the probative value against potential dangers of unfair prejudice of “evidence of other sexually assaultive behavior.”