Wednesday, May 11, 2005

Prior Acts Evidence


I am loathe to discuss the Michael Jackson trial, for any number of reasons, but I think today's testimony merits mention:
[Actor Macaulay Culkin] said prosecutors never approached him about whether he had been molested and he only learned of the allegations that he had been molested by watching news coverage of the trial.

"Somebody told me you should probably check out CNN because they're saying something about you," Culkin said. "I just couldn't believe it. … It was amazing to me that nobody even approached me and asked if these allegations were true."
Now, if you are from the Susan Estrich school of criminal law, you believe that Jackson has probably paid off a dozen or so parents over the years, and that evidence of past acts is "key to justice":
In retrospect, it may well turn out that the key decision in this case was the ruling on prior similar acts. Had this evidence been excluded, the boy and his family would have stood on their own, with all the inconsistencies and mixed motivations in their testimony. What the other accounts accomplish is to shift the focus of the case back to the man who is at the center of each of them, and what he did wrong, and not what his alleged victim in this case did. The testimony this week may have been old, but it was also ugly. This is no longer a case about childish play - the testimony this week spoke to shame, manipulation, humiliation.

One boy may be mistaken, foolish, confused, undercut on cross examination, bragging to his friends, reduced to tears by a smart lawyer, lying to his principal, angry, greedy, vengeful - but not a not a steady stream over the decade.
But here's the catch - if a prosecutor introduces "evidence" of past acts, and that evidence turns out to be as hazy and contradictory as the accusations in the present case, the prosecutor may well undermine both the credibility of its own witnesses and of its entire case. If in fact this prosecutor was so eager to get claims of past acts into evidence, that he didn't even bother to investigate those claims or to ask the identified victim if the claims were true.... Assuming Jackson is guilty, as with the O.J. Simpson case, as easy as it is to blame everybody else for a dubious acquittal, the actual cause of acquittal will be the incompetent tactics of the prosecution team.

One more thing, without wanting to sound too judgmental: I am uncomfortable with the fact that a parent would negotiate a settlement over the sexual abuse of their own child, whatever the amount, which would preclude criminal charges against the abuser. And that's before delving into the possibility that some parents might intentionally insinuate their children into the life of somebody like Jackson in order to obtain a settlement for abuse, real or imagined.

4 comments:

  1. "One more thing, without wanting to sound too judgmental: I am uncomfortable with the fact that a parent would negotiate a settlement over the sexual abuse of their own child, whatever the amount, which would preclude criminal charges against the abuser."

    What's wrong with sounding judgmental? We aren't talking about "blaming the victim." We are talking about blaming the victim's parents for being more concerned with making a profit off of their child's pain than they are taking care of their own child or preventing other children from suffering a similar fate.

    I'm not "uncomfortable" with people turning the sexual abuse of their children into a form of income and agreeing to participate (passively) in the abuse of other children, I'm outraged and disgusted.

    CWD

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  2. Nothing's wrong with being too judgmental. It's actually, in some senses, my predisposition - I have to be careful at times, lest I end up appointed to a judicial position somewhere. ;-)

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