skeletons in the closet

We discussed California Evidence Code §1108 in class last night. I found myself in an awkward position-I abhor the damage done by sex crimes, which are by their nature generally perpetrated against the more vulnerable. It's easy to get up in arms about the child molester, the serial rapist and like actors. Yet I am troubled by the dismissal of what I see as the constitutional rights of the accused. 1108 says "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 252." All other evidence of prior criminal activity is generally inadmissible for the purpose of proving conduct on a specified occasion (§1101(a)), but this is not necessarily the case when someone is charged with a sex offense. I know I'm not addressing all elements of this discussion here, such as the judge's ability under §352 to weigh the probative value of the evidence before admitting it, but there are potential issues with that process as well. Referring to the comments in a recent post, if one is not entitled to justice, but only due process, then what happens if due process gives me 25 to life, when justice would gotten me an acquittal? A person charged with a sexual offense may have evidence of prior similar acts introduced against him/her even though they have never been convicted, tried, even arrested for them. In fact, the prior acts may be alleged for the first time during the instant case. What completely blew me away though, is that the standard of proof for the other acts offered as character evidence is preponderance of the evidence, NOT beyond a reasonable doubt. How is this due process of law? In one case I found that weighed this issue (People v Falsetta, 986 P. 2d 182), the court stated that even if the general rule against the use of propensity evidence against an accused 'were deemed fundamental from a historical perspective, we would nonetheless uphold section 1108 if it did not unduly "offend" those fundamental due process principles... in light of the substantial protections afforded to defendants in all cases to which section 1108 applies, we see no undue unfairness in its limited exception to the historical rule against propensity evidence.' The court discussed the fact that sex crimes are usually committed in a private setting with no witnesses aside from the perpetrator and the victim, and often without substantial corroborating evidence. The trier of fact often has to decide who to believe based on conflicting stories and not a lot of other evidence. 'Section 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant's possible disposition to commit sex crimes.' On the other side of the argument, the court identified three reasons to use the general rule rendering propensity evidence inadmissible. (1) relieves the defendant of the often unfair burden of defending against both the charged offense and the other uncharged offenses, (2) promotes judicial efficiency by avoiding protracted "mini-trials" to determine the truth or falsity of the prior charge, and (3) guards against undue prejudice arising from the admission of the defendant's other offenses. (cites omitted) Because the evidence that can be admitted only applies to sex offenses, and because it must first be subject to pretrial notice and opportunity for the defense to argue against admission, the court found it was not unduly burdensome. (in this case, the defendant had actually been convicted of two prior sex offenses) The requirements of §352 mean that the court must weigh such things as the nature of the prior acts, remoteness in time, whether there had been a conviction and other relevant facts before admitting the evidence. All of this may temper the risk of unduly prejudicial evidence reaching the jury; however, I find that small comfort. I think that when it comes to fundamental rights, abrogating those rights for a select group of people lowers a barrier that ought not be lowered under any circumstance. If this can be done, what else is possible? The slippery slope is just that. How many of us have no skeletons in our closets? There are many kinds of skeletons, and few can live to middle age without their own stash of them. I know I have no desire to have mine displayed in a public courtroom, and I have grave doubts about my opportunity for a fair trial on the merits once they have been paraded in front of a jury. I do not know if there is some third choice other than the two nearly equally distasteful ones that seem to present themselves here, but I'd be interested in knowing what you think, and if you have any alternate suggestions?