THE NEW LAW ON CHARACTER EVIDENCE

  
In the realm of criminal procedure, one of the largest barriers to a fair trial is the broad use of “similar transactions.” Similar transactions are past actions by a defendant that are introduced into evidence during a current trial.

For example, lets assume that a defendant is charged with burglarizing a pawn shop. The defendant was also convicted years ago for burglarizing a gas station. In this scenario, the prosecutor can introduce the past crime as evidence in the current case.

As you can imagine, most jurors think “well, if he did it once, he probably did it again.” The jury judges the character of the defendant rather than applying the facts and law in the current trial. It has become a prosecutor’s “superweapon.”

There are many ways for prosecutors to introduce similar transactions into a trial. Some of those methods, like showing identity, motive, or knowledge are legitimate uses of the similar transaction. Additionally, similar transactions are much easier to tender into evidence in a trial involving a sex crime.

However, there is one type of way to introduce a similar transaction that is so fundamentally unfair that the General Assembly had to finally take some much needed action. This is called proof of the defendant’s “bent of mind.”

Today, Georgia is the only state in America that allows a court to admit a defendant’s past crimes or acts to prove his “bent of mind” toward the criminal conduct with which he is charged. The bent of mind rule was not even passed by lawmakers. The rule slowly developed and became a rule because of the activism of the Georgia appellate courts beginning in the early 1980′s.

As one Supreme Court Justice wrote, a defendant’s “bent of mind” is really no different from his “character” and thus the bent of mind exception has been slowly swallowing the 350-year-old rule that prohibits using proof of the defendant’s character against him at trial.
Fortunately, after years of work by reasonably people across this state, the “bent of mind” exception will be substantially weakened. The General Assembly passed OCGA 24-4-404(b), which becomes effective on January 1, 2013, states in pertinent part:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith….

One other important aspect of this legislation applies to DUI cases. Prosecutors were legitimately concerned that the new code section would completely do away with similar transactions involving prior DUIs.

To alleviate this problem, lawmakers created a new statute that allows prosecutors to tender similar transactions in two different ways. They will likely involve situations where there is a refusal of the state’s administered test or when the identity of the driver is at issue.

As the General Assembly convenes every year with Governor Deal looking on, I am very proud to see the changes in our criminal justice system. I am also encouraged that our local legislators seem to all be in favor of the governor’s vision for a common sense and fair approach to criminal law and procedure.

Our Founding Fathers would be pleased.