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Court Holds Evidence of Defendant’s Propensity is now Admissible

August 20, 2015

In Eubanks v. State, the Georgia Court of Appeals held that under Georgia’s new evidence code, evidence of a prior child molestation offense, even one that is remote in time, may be introduced for the purpose of showing the defendant’s propensity to commit the offense.

The defendant was charged with child molestation following an incident with an 11 year-old relative with whom he lived temporarily. At trial, evidence was introduced by the State that the defendant had molested another similarly-aged relative in the same manner approximately 17 years ago.

The defendant argued that the probative value of such evidence was greatly outweighed by the risk of undue prejudice. The Court of Appeals disagreed, holding that it is within the discretion of the trial court to weigh the probative value against any risk of prejudice, and that such decision will only be reviewed for an abuse of that discretion.

Although the Court acknowledged that the previous allegation was quite remote, having occurred almost 2 decades ago, it found that the striking similarities between the current and prior allegations weighed heavily towards its admission. Also, the evidence was found to be particularly probative given the defendant’s attack on the credibility of the alleged victim.

The defendant further argued that it was error to instruct the jury that it could consider this evidence to show that the defendant “has a disposition of character that makes it more likely that he did commit the act of child molestation charged in the instant case.” The Court held that when the General Assembly adopted the new evidence code, it was aware that evidence of prior similar offenses would be admissible to show propensity in child molestation cases. Thus, under the new rules of evidence, a prior child molestation allegation from many years in the past may be admitted as character evidence showing the defendant’s propensity to commit the offenses charged in the indictment.

NOTE: It seems axiomatic that in a case like this where the State introduces evidence to show a defendant’s propensity to commit the crime, the defendant would naturally be permitted to present evidence which shows the opposite to be true. Under the new evidence code, O.C.G.A. § 24-4-404(a) provides that evidence of a “pertinent trait of character” of the defendant is admissible if it is relevant to the offense for which he is charged. O.C.G.A. § 24-4-405(a) states that evidence of a pertinent character trait can be offered via testimony as to the defendant’s reputation or testimony as to the witness’ personal opinion of the defendant.

Thus, the defendant in this case could present character witnesses, or even expert witnesses, to testify that he acts appropriately towards children and that he does not have a sexual interest in children. This evidence would be critical to refute the State’s claim that this other allegation of child molestation shows that he has a propensity to commit the offenses in the indictment.

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