WA Lawyer Argues Against “Propensity” Evidence In Sex Cases


The Seattle Times profiles Eric Lindell, who is challenging a new state law with with broad ramifications, In cases where someone is accused of a sex crime — say, molesting children — the law allows prosecutors to introduce “propensity evidence,” a fancy term for past instances in which a defendant was accused of comparable crimes, even if he wasn’t charged or convicted.

Lindell is defending a man who could hardly be less sympathetic — Roger Scherner, 82, rich and remorseless, accused of molesting three generations of relatives, all young girls at the time. Jurors heard not only from a girl Scherner was convicted of molestiing, but from four women who testified Scherner had abused them when they were children. “History has a way of repeating itself,” the prosecutor argued. Lindell argues that a defendant is supposed to be presumed innocent. If a jury hears of accusations in the defendant’s past — particularly of rape or molestation, allegations with powerful emotional triggers — the presumption will flip.

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