38.37 Section 2
Sex case set on Monday with TONS of extraneous stuff...we have defendant charged with two counts of sexual assault of a child, but he raped her almost daily for several years and also regularly physically assaulted her. The new section 2 of 38.37 requires the judge to hold a hearing on this stuff ahead of time to determine if the evidence is adequate to support a finding that the defendant committed the separate offenses beyond a reasonable doubt. Does this mean the judge has to believe those offenses occurred beyond a reasonable doubt or that he has to find that a JURY COULD BELIEVE them beyond a reasonable doubt? Does he become the fact-finder? Anyone done one of these? We don't want to try our whole case twice!
March 08, 2014, 10:52
nwoodi'm not familiar with any cases on the new statute giving any guidance. the statute reads like it is merely requiring the court to do some kind of legal sufficiency "pre-check." maybe similar to the hearing required in 38.072. that's the interpretation I've gone with, at least.
in practice, though, I think it lets judges do whatever they want...
i'm emailing you a law review article that will at least provide some background. section 4 of the article is probably the most pressing since you have trial Monday.
March 10, 2014, 17:17
Adam PooleMy understanding is that section 2 deals only with admitting extraneous acts committed against a victim other than the victim named in the indictment (ex: sex assault against unrelated child, or possession of child pornography, etc..)
It sounds like you are trying to admit extraneous acts all committed against the same victim in your case. I don't think the amended portion of the statue changes that procedure. Section 1 essentially makes the acts relevant per se preventing a 401 objection. How the Court wants to handle other objections, like under 403, are up to the judge but there is no mandatory hearing required.