The HONORABLE CHRISTIAN F.
THIERBACH, doesn't seem to be all that familiar with the law regarding propensity evidence.
He admitted the prior to show that if Jeff touched the girls, he did so with the intent of sexual gratification of himself.
It was then used to show that Jeff had propensity to molest children instead.
While discussing the admissibility of the prior, he stated:
"But under a 352 analysis, is the evidence so prejudicial as to outweigh the probative value? And in cases such as this where the intent is an issue, it is highly probative.
...The Prosecution is required to prove the specific intent.
That is a core element of these charges. And the legislature has authorized them to do so by introducing evidence pursuant to Section 1108 and 452.5."
However, 1108 allows for the introduction of propensity evidence, not evidence of intent.
Intent evidence is admitted under 1101.
The judge clearly states that he is admitting it because the DA must prove the spefic intent.
He does an analysis under 352, finding that the probative value of the prior out weighed the prejudicial effect.
However, it actually had no probative value to show intent because it was never used as such.
The DA used it to show propensity, a purpose for which it was never admitted.
It wasn't needed to show intent. You don't need a prior to prove that touching a little girls vagina was sexual.
If Ashlee or Alyssa's testimony had been credible, no jurror was going to say "Well, sure he spread her vagina open, they proved that. But I'm going to vote not guilty because they didn't prove he did it for a sexual reason.'
