By Benjamin A. Tracy, Columbus Criminal Defense Lawyer and Civil Rights Attorney
This is the ninth part of a series of posts about what evidence can, cannot, should, and should not, be used in court.
Part IX, Character Evidence Revisited – Opening the Door.
Shortly prior to the date of this article, the Ohio Supreme Court issued an opinion in, State of Ohio v. Van Williams, addressing the question of when bad things a person may have done in the past can be used against them.
In Van Williams, the defendant apparently had sexual relationships with two teenage boys, one in approximately 1997 and one in 2008. The state sought to, and did, use evidence of the 1997 relationship in order to convict him of the 2008 relationship. The 1997 relationship resulted in a misdemeanor conviction and under ordinary circumstances, since the conviction is over ten years old, it could not have been used against Van Williams. In addition, remember from prior posts, the State cannot use evidence that someone has a bad character to show that they acted in conformity with that bad character on a particular occasion. That is, just because Mr. Van Williams had a sexual relationship with one young man over ten years before, does not mean that he did again in this case. However, the Ohio Supreme Court said that the evidence of the prior relationship was properly used against Mr. Van Williams.
The evidence was relevant, said the Court, in that it tended to show intent and plan by Van Williams. In other words, the manner in which Mr. Van Williams cultivated his relationship with these two boys was, apparently, quite similar between the two scenarios. Thus, the evidence showed a deliberate and purposeful method of seducing young men.
However, also important to the Ohio Supreme Court’s analysis, was what Van Williams argued at trial: Van Williams’ defense counsel apparently argued (among other things) that Van Williams was not interested in homosexual activities and therefore the accusing witness was lying. Because the Defense chose to take this approach, the importance of the prior sexual relationship increased greatly. That is, the prior relationship showed that Van Williams was, in fact, interested in homosexual relationships with young men. This is what is known as “opening the door.” When the Defense chose to argue broadly about Mr. Van Williams’ sexual preferences, the testimony about the older incident became much more relevant and, consequently, much more likely to be admitted into evidence. If Van Williams had focused more on arguing that he did not, in fact, molest this particular young man, the evidence about the prior incident would have been much less useful to the State and thus less likely to be admissible. To put it another way, if the State had not needed to use the prior relationship to refute Van Williams’ claims that he was not interested in homosexual activities with young men, it might have been more obvious that the main purpose of bringing up the prior relationship was to lead the jury to the impermissible inference that Van Williams must have molested this young man in 2008 because in 1997 he had a sexual relationship with another young man.
In short, if you are going to argue that a piece of evidence should not be heard in court because it would be unfair, you and your attorney must develop a theory of the case that does not take unfair advantage of the missing evidence. If your theory can be refuted by the evidence you are attempting to exclude, the importance (or, probative value) of the evidence you are seeking to exclude will be much higher. If your own strategy makes evidence you want to exclude important, it is much more likely a judge will choose not to exclude it.
If you are under investigation, or have been arrested by any law enforcement agency, feel free to contact one of our experienced Criminal Defense Attorneys, for a free initial consultation about your legal rights and possible defenses. In addition, if you have been wrongfully convicted, arrested, imprisoned, maliciously prosecuted, or have suffered some other wrong, feel free to contact one of our experienced Civil Attorneys, for a free initial consultation.