I'm doing a sexual assault of a child case (anal penetration) and the defendant keeps writing letters talking about his obbbbbbesssssion with butts and draws numerous pictures of him performing anal sex. Not on a child, but on her mother. Do these get in as a statement against insterest alone or is there 404 objections? I wouldn't say it was a bad act, because it is nothing illegal, etc. Just him having anal sex with an adult--but his obsn is disturbing and I really want to get the letters in. Any suggestions?
Have an expert psychiatrist testify at punishment. Provide the letters as part of his underlying data in forming an opinion on whether defendant is a dangerous sex offender.
404(b) will apply to acts of sexual conduct that, while not illegal, might be considered bad acts. Bishop v. State, 869 S.W.2d 342. Thus, you need to show that the items are relevant for some purpose other than the fact he likes anal sex.
I have tried too many agg sexual assaults and the ones with anal penetration are the most disturbing to jurors. Most Defendants who molest children insist on testifying so just wait and ask him if he likes anal sex. If he denies it offer the photos. There is something wonderful about watching a Defendant self destruct in their attempt to manipulate the prosecutor and jury. I know I am older than most of you but anal sex is not something everyone does.
I know I will now get all kinds of interesting new insights from my young DA friends at the annual.
I'll be in your corner Martha. All I can say is eewww.
I've never actually faced this, but I've always wondered how I would (could) handle a strong objection as to authenticity of jail letters, especially now that we can't use our local handwriting witnesses. Usually they are mailed to the court who sometimes saves the envelopes, sometimes not. At best, one could show the letter came from someone in the jail. Maybe even someone with a working knowledge of the facts in a case. Any suggestions?
Find a family member who knows his handwriting. Have the letter printed. Use the contents of the letter as circumstantial evidence for identity.
How big is your jail? I had one (when I was the defense attorney) in a very small jail and the jail administrator took the stand, explained that he picked up each letter from inmates and made sure that the name on the envelope (yep, they kept the envelope) and the tank number matched the inmate giving him the envelope.
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