• Vermont View: Evidence rules need to change for sex crime cases
     | September 21,2008

    A contractor develops a vision to construct the tallest building in Vermont – a 25-story structure. The contractor obtains state and municipal permission and even garners local support for the project. On the day of groundbreaking, the contractor shows up with the following: a hammer, a rusty saw, bent nails and rotting lumber. Would anyone want this construction project to continue? Certainly not. With inadequate tools and shoddy materials this project is a recipe for disaster. Sure the project might get started. Perhaps even the frame could be erected. But there is no way a sound, secure building capable of withstanding the elements could be built. A solid, secure structure requires proper tools and appropriate material.

    Developing successful criminal cases is much like erecting a building. The outcome is largely dependent on the quality of the tools and materials available at the outset. Like the contractor, a prosecutor needs good materials and appropriate tools to construct strong cases. For us, our building materials are the case evidence, and the tools are the rules that govern in court. Without strong case evidence and appropriate court rules, prosecutors cannot build solid cases.

    An effort is under way in Vermont to require certain sexual offenses to carry a mandatory 25-year jail sentence. This approach, known as Jessica's Law, predetermines a sentence without considering the strength of the case evidence. Although the cry for punishment for sex offenders is understandable, properly equipping prosecutors with the tools and materials needed to hold alleged offenders accountable should be our highest priority. Demanding long sentences in cases that lack quality evidence is as unsound as trying to erect a 25-story building with inadequate supplies.

    So what do prosecutors need? First, we need top quality investigations. Quality investigations produce quality evidence – the building material of criminal trials. Sexual abuse cases require special investigative skills to gather this needed evidence. It is completely unfair to police officers to ask them to jump from a DUI case to a bad check case to a burglary and then to a child sexual abuse case. The investigation of sex crimes requires an understanding of the complex dynamic often present in intra-familial and other abuse cases. It is unrealistic to expect that all police officers have the skills or interest in working on these complex cases.

    Everyone within the criminal justice system acknowledges that special sex crimes investigative units are the best way to gather evidence in these cases. With SIUs, detectives (and others in their teams) work exclusively on sex crimes, mastering the skills needed to acquire the evidence these cases require. We need active SIUs throughout the state. Until the Legislature reconvenes, only the governor can direct the state police to assign detectives to work specifically and exclusively in SIUs. If the governor declines to issue this directive without additional funding, a $50 surcharge imposed on all criminal convictions in Vermont would raise over $500,000 – the revenue needed to fully fund SIUs.

    In addition to quality investigations, prosecutors also need better tools in the form of modified court rules. Under Vermont rules of evidence, at a trial of an alleged sex offender, a jury ordinarily does not learn about any prior instances of sexual misconduct by the accused. In federal court, though, and in 12 other states, the jury does learn of the other instances of sexual misconduct. Prosecutors in these other jurisdictions have an important tool that Vermont prosecutors lack.

    Individuals who commit sex crimes, particularly crimes against children, frequently take great care to select their victims and spend time gaining the victim's trust. The attributes that make a child a target of sexual abuse are often the same attributes that make the child a poor or reluctant trial witness. It is hard for any victim to participate in the court process, let alone a child victim of a sexual offense perpetrated by a trusted adult. The inherent difficulties present in child sex abuse cases warrant a modification of our court rules to allow into evidence instances of prior sexual misconduct by an accused.

    If lawmakers give prosecutors the tools and materials we need to hold offenders accountable, will people still call for mandatory 25-year sentences? Maybe. But perhaps with the proper tools and materials, prosecutors will build solid cases that result in the sentences people expect without the need to predetermine the outcome.

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