Unintended consequences are coming up after a Missouri Constitutional Amendment was approved by voters in 2014. It was undoubtedly an attempt to get tougher on certain criminals. The law is likely violating a defendant's Fifth Amendment Rights. It might not concern many people when the accused's rights are questioned until someone you know is accused of a crime.
The following quote comes from a 21-year-old whose identity is being withheld as he waits for an appeal. He was just sentenced to 60 years, which amounts to a life sentence for something he continues to strenuously insist he is not guilty of.
"People in my position shouldn't be retried for something already adjudicated; the prior case was so long ago; I am a different person today. I think making sure innocent people even with a not so spotless record should be given the same Constitutional Rights and benefit of the doubt as other people, especially when the prior case was when they were a juvenile." – Missouri Defendant A.
This sentence is for crimes alleged to have happened when he was only 15 and 16 years old. After the Juvenile Court certified him to stand trial as an adult, the prosecutor used a misdemeanor charge from when he was just twelve years old against him. The prosecutor also used the story of another accusation in court, from when he was 12, even though that case hasn't been proven beyond a reasonable doubt.
This young man was denied a fair trial because he had to get on the stand to try to counteract the accusations against him that had already been adjudicated more than ten years earlier and the one that hadn't been proven. He is now being held in prison, hoping an appeal will allow him a new trial.
The Amendment to the Missouri Constitution in 2013 was introduced and sponsored by Republican House Member John McCaherty and State Senator Rob Schaaf. The ballot language stated, "Shall the Missouri Constitution be amended so that it will be permissible to allow relevant evidence of prior criminal acts to be admissible in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age."
The state is also required to put out what is called "Fair Ballot Language" to make clear what the Amendment means. This Amendment was described as "to allow evidence of prior criminal acts, whether charged or uncharged, to be considered by courts in prosecutions of sexual crimes that involve a victim under eighteen years of age. The Amendment limits the use of such prior acts to support the victim's testimony or show that the person charged is more likely to commit the crime. Further, the judge may exclude such prior acts if the value of considering them is substantially outweighed by the possibility of unfair prejudice to the person charged with committing the crime." When determining unfair prejudice, it is left up to the judge to decide.
Federal rules of evidence are spelled out in Rule 404b: "Evidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion, the person acted in accordance with the character." Rule 404b also states: "Evidence may be admissible for another purpose such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of evidence." What those terms specifically mean is not overly clear.
In 2011, the Federal Government clarified Rule 404b to specifically include direction that the prosecutor articulate a non-propensity purpose for using prior convictions. The Rule stipulates that a prosecutor needs to have other reasons for using prior convictions other than to show the defendant may have committed a similar offense before. Missouri's Constitutional Amendment completely overturned this Federal Rule. Missouri now allows a prosecutor to use any prior conviction or accusation to show the defendant may have committed a similar act in the past.
In most criminal cases around the country, prosecutors don't use the criminal histories of a defendant in the trial if the defendant doesn't take the stand himself. Trials would be much easier and quicker if prosecutors could use prior crimes in which the person was accused or convicted. All they would have to do is list them off. Suppose a juror hears the defendant committed the same crime 2,3 or even 20 times before. In that case, they will likely be swayed by that information and not just the information presented regarding the current case.
If a defendant takes the stand during the trial, their entire criminal history is open to question on cross-examination. The defendant waives their right not to testify by taking the stand, as found in the 5th Amendment. The ability to use prior cases was strictly limited to the permitted uses listed above in Federal Rule 404b. The use of those convictions or accusations is also supposed to be non-propensity. This is not the case in Missouri anymore. Today, the 5th Amendment in this particular category of crime is waived for the defendant by the judge.
The Missouri Amendment, approved by voters in 2014, removes the requirements to show why a prior criminal conviction should be used. It allows for any prior case to be used against the defendant, whether the case was charged or not when the crime is of a sexual nature involving a victim under 18.
When a crime is proven in court beyond a reasonable doubt, there is evidence to prove to a jury of 12 ordinary people that the crime happened and the defendant was responsible. When a case is not charged, there has been no jury to find guilt. Since no charges were filed, the police might not have found sufficient evidence to move a case forward. The Missouri Constitution still allows someone to take the stand and tell an unproven story. A story never charged by a prosecutor.
It is often best for a defendant not to take the stand during a criminal trial. This Amendment amounts to forcing a defendant to take the stand. If nothing else, the defendant needs to try to rebut the accusations against them that were never charged or to address the charges that were charged, especially if they were a juvenile at the time. Without taking the stand, the defendant is forced to let any accusations go unaddressed with the jury.
One of the other things the Missouri Constitutional Amendment doesn't do is protect those who are juveniles. Missouri law does allow for adjudications to be used in the adult court if the juvenile was found responsible for a Felony charge. With this new Constitutional Amendment, however, apparently juvenile records, even with a misdemeanor, can now be used in court against an adult for behavior they may have engaged in from birth through their 18th birthday. In a Missouri Court of Appeals decision from 2020, Justice Nancy Steffen Rahmeyer specifically stated in her decision regarding the case of State v. Schachtner:
"I am troubled that the propensity evidence admitted in this trial dealt with the behavior of the defendant as a child, thus necessarily determining the behavior of the thirteen-year-old as a criminal act. It is a slippery slope to interpret the constitutional Amendment, which is contrary to the general proposition that the defendant is to be tried for the crime he is charged with, by including activities done by a child. I believe it should give us pause in the judicial system when we allow evidence of the behavior of children to be used to convict them of behavior as an adult. There is no context provided to the trial court or the jury to explain how children's behavior is or is not an indicator of later criminal activity. "
The US Supreme Court has several decisions that point out that those under 18 at the time of their crime might not be as culpable for their acts as some people might like them to be. In Roper v Simmons in 2005, the court specified that juvenile offenders cannot be subjected to excessive sanctions under the 8th Amendment. This decision removed the ability for states to use the death penalty against offenders who were under 18 at the time of their crime. The individuals who were in prison convicted as adults but were under 18 at the time of the crime and who were sentenced to death row had their sentence commuted to life in prison.
Then, in Miller v. Alabama in 2012, the Supreme Court also stipulated that a juvenile defendant cannot be sentenced to a mandatory term of life imprisonment without the possibility of parole, no matter the seriousness of the crime. This resulted in juveniles who were sentenced to life in prison before 2012 having a new sentencing hearing to determine whether they should qualify for parole at some point in their life.
Plenty of scientific evidence today shows the human brain isn't fully developed until the Mid to Late 20s. Specifically, the pre-frontal cortex, the area of the brain necessary for decision-making, is not developed until someone is in their mid-twenties. This is the exact reason the Supreme Court does not favor the death penalty or automatic life in prison. To use propensity evidence against an individual when their ability to make proper decisions is limited seems patently unfair.
Judges around the country have the ability to decide the fate of people in front of them. Judges should be protective of a defendant's Constitutional Rights. Apparently, they don't have to worry about the 5th Amendment in Missouri anymore.
