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Retroactive Application of New Rule of Evidence Does Not Violate Ex Post Facto Clause

By Michael Romano

The Ninth Circuit held today that retroactive application of California Evidence Code Sec. 1108, which permits introduction of evidence prior sexual misconduct, does not violate the Ex Post Facto Clause.  (Schroeder v. Tilton, No. 06-15391 (Wallace, Chudahy, McKeown))  A California habeas petitioner convicted of molesting two grandchildren argued that prosecutors improperly admitted evidence that he also molested his children when they were young.  Evidence Code Sec. 1108 was not in effect when the petitioner committed his crimes.  The Ninth Circuit concluded the state court's decision to admit the evidence was not contrary to Carmell v. Texas, 529 U.S. 513 (2000), which holds that the Ex Post Facto Clause prohibits retroactive application of new rules of evidence that may lower the state?s burden of proof at trial.continue to full post

Full post as published by Criminal Appeal on July 03, 2007 (boomark / email).