Why It Was Wrong on the Law, and Unfair to the Defendant, Yet May End Up Hurting the Prosecution More

Yesterday, March 28, Judge Rodney Melville - who presides over Michael Jackson's child molestation trial -- issued a ruling that was momentous. It was also clearly erroneous.

Judge Melville said he would allow prosecutors to present to the jury testimony concerning five boys whom they allege Jackson molested when the boys were between the ages of 10 and 13. Notably, however, only one of the alleged victims reportedly will testify himself. The rest of the testimony will come from those who claim they witnessed the molestation.

In effect, Monday's ruling allows prosecutors to shift the question in the jurors' minds from "Did Michael Jackson molest this accuser?" to "Is Michael Jackson a child molester?" As I will explain, it also allows prosecutors a sneaky way to evade the tough "beyond a reasonable doubt" standard that applies in criminal cases.

In this column, I will argue that the ruling was wrong, and unfair to Jackson. But I will also argue that it's likely that evidence of these prior, uncharged acts may ultimately cast doubt on the prosecution's case and, ironically, help an already strong defense.

The Character of, and Unreliability of, the Evidence At Issue

The problems with allowing such testimony are plain. For one thing, it appears that much, if not all of the conduct alleged is claimed to have occurred in the 1990s. (For instance, the one alleged victim who will actually testify - the son of a Neverland maid -- claims to have received a $2.4 million settlement from Jackson fifteen years ago , in 1990.) That means that any testimony will be suspect, since details of events so many years ago may be hard to recall.

Moreover, none of the allegations ever led to a criminal trial - let alone a criminal conviction - for Jackson. So there is no guarantee that the allegations are trustworthy - and some evidence that they are not: If they were strong, why was no prosecution brought?

And if these allegations are true, why is only one of the alleged victims testifying? If the victims were currently young children, it might make sense that they would avoid the trauma of testimony. But in fact, some - such as former child star Macaulay Culkin, and Jordan Chandler (Chandler famously received a $20 million settlement from Jackson in 1993) are in their mid-twenties. Yet they still refuse to testify. Moreover, Culkin - whom the defense is likely to call as a witness - says he was never molested.

So who is testifying regarding the four alleged victims who refuse to speak? The answer is: Eight witnesses claiming to have personally observed Jackson sexually abuse the minors.

Again, this bizarre claim makes one wonder: Prosecutors have claimed Jackson was so covert that he had a bell in his bedroom to make sure no one coming up the stairs would catch him molesting boys. Yet they also claim that his molestation was so blatant, eight people saw it, and it left such a strong impression that they can now remember the details a decade or more later. They need to get their story straight: Was Jackson a blatant abuser, or a stealthy abuser?

Other issues also tend to seriously undermine the value of this third-party testimony. First, several are former Neverland employees who may have their own, separate axes to grind. Second, it appears that none of them reported the alleged crimes at or near the time they were committed. So it seems the prosecution will ask the jury to believe that these witnesses witnessed sex crimes against children, yet simply stood by and watched with mouths agape.

This creates a huge credibility problem: Even if the employees were scared to lose their Neverland jobs, wasn't this more important? And what about the time when they left those jobs? Shouldn't they have immediately reported the crimes then?

Finally, the testimony of these eight may not even recount molestation. Prosecutors say there will be testimony, for instance, that Jackson licked a child's head. But so what? That act is about as illegal as sharing an ice cream cone. One can easily see a parent or friend doing this in jest, affectionately. Any sensible definition of criminal child molestation is limited to sexual touching. Will they next charge Jackson with kissing a child's boo-boo to make it better?

This trial isn't about whether Michael Jackson behaves inappropriately with children. Let's face it, he does: It's eccentric, to put it kindly, to sleep with young boys in one's bed - as Jackson has admitted doing. And hanging your child over a balcony is dangerous, that's for sure. But this trial is not about custody or about propriety; it's about crime. It is about whether Jackson committed the crime of molesting those boys - which is a very different matter.

Why the Evidence Was Deemed Admissible: California's "Prior Bad Acts" Rule

Readers may wonder whether the law ought to simply deem this kind of evidence categorically irrelevant, and thus inadmissible - and they would be right to wonder. But California Law expressly allows its admission.

In 1995, California Evidence Code §1108, regarding "prior bad acts," was enacted. In a nutshell, it says this: In a criminal action in which the defendant is accused of a sexual offense, evidence of the commission of prior sexual offenses -- including sex offenses for which the defendant was neither charged nor convicted -- may be used against the defendant.

Why is such evidence relevant? According to the Code, it is relevant to prove the defendant's "propensity" to commit the crime for which he is on trial. In other words, this evidence can show not whether the defendant actually committed the particular crime, but whether he was inclined to commit this type of crime.

American essayist Logan Pearsall Smith once wrote, "Our names are labels, plainly printed on the bottled essence of our past behavior." Whether you choose to buy into this philosophy or not, it is, at its core, the notion upon which California Evidence Code §1108 is based.

Yet, if one thinks it over, why should inclination be relevant? I'm not sure; after all, we don't jail people in this country because we think they are inclined to commit crimes. But California law says inclination is relevant - and that was the law Judge Melville had to apply.

(Before the enactment of the 1995 law, the rule was much more sensible. The prosecution was prohibited from ever using a defendant's past "bad character" to prove a defendant's guilt, and could use such evidence only to prove a very limited set of other facts, such as the defendant's motive, opportunity, or identity.)

Even worse, the jury is only required to determine whether or not these alleged prior bad acts occurred by a preponderance of the evidence - roughly, more likely than not. This standard typically applies in civil, not criminal cases - and, obviously, is far below the usual " beyond a reasonable doubt " standard required in every criminal trial. And that means that prior bad acts evidence can, in effect, be used to evade the hallowed "beyond a reasonable doubt" standard.

Granted, the relevant California jury instruction -- the 1999 revised, modified version of CALJIC No. 2.50.01--does remind jurors that "if you find by a preponderance of the evidence that the defendant committed a prior sexual offense...that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime."

But that is cold comfort. If jurors believe it is indeed likely that Jackson molested earlier boys, their standards for finding him guilty "beyond a reasonable doubt" may, in effect, drop precipitously - whatever the jury instructions may say. If they begin to look at Jackson as a likely molester, in other words, they are much more likely to find him guilty of molestation, even if it means bending the strict standard of proof the law imposes.

Prejudicial or Probative? Tipping the Scales for Exclusion

There is, however, still one way Judge Melville could have mitigated the unfairness of the new "prior bad acts rule."

California Evidence Code §352 states that "the court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."

This provision might as well have been written for the Jackson case. The testimony from the third-party witnesses about the alleged prior abuse is far more likely to mislead the jury, and confuse the issues, than it is to aid in a search for truth. Especially without a guarantee by the prosecution that evidence of prior bad acts against Jackson would be proffered directly out of the horses' mouths, the judge should have ruled against its admissibility.

Remember, the one question the trial is supposed to answer is simply: Did Jackson molest the current accuser? Even the prior accusers' testimony would not have been very relevant to the answer to this question. These third-party witnesses' testimony is even less relevant; its probative value, in the balance, is even less.

And talk about "undue consumption of time": Since Jackson is entitled to defend against all five allegations of decade-old abuse, the introduction of the evidence creates the potential for five "mini-trials" within the current one.

This Third-Party Evidence Raises a Serious Constitutional Confrontation Clause Issue

Judge Melville's decision isn't just a wrong application of California law; it also threatens Jackson's constitutional rights.

The U.S. Constitution's Sixth Amendment gives every criminal defendant the right to a fair trial. Jackson is not being given one here.

But more specifically, the Sixth Amendment also guarantees the defendant's right to confront - that is, to hear the testimony of, see the face of, and cross-examine -- his or her accuser. That right, too, is being infringed.

(Some child witnesses are allowed to testify behind a screen, for fear the alleged perpetrator will intimidate them. But again, Jackson's prior accusers are no longer children, and Jackson is hardly the intimidating type anyway.)

Perhaps what is most confounding about the judge's decision allowing these third party witnesses to take the stand, is that they will do so in place of -- and instead of -- the alleged victims themselves. Jackson has a Sixth Amendment right to confront his accusers -- not the accusers' mothers, friends, dogsitters, caddies or housekeepers.

To gain a conviction, the prosecution is putting on evidence that Jackson, molested in total, it says, six boys. But only two of those boys will testify, and be subject to cross-examination. One can hardly imagine a more blatant Confrontation Clause violation.

Why The Admission of this Evidence May Actually Hurt, Not Help, the Prosecution

Given the possible prejudicial effect of the "prior bad acts" testimony, why do I still believe this testimony could end up hurting the prosecution?

The answer is: Because the defense will argue - and jurors will see - that the reason prosecutors are offering this other evidence, is that their case is weak. Perhaps the defense will call the accusers themselves to the stand - including Culkin, who reportedly denies abuse.

Or perhaps the defense will simply ask why the prosecution did not call to the stand the victims themselves witnesses - and ask jurors, Why wouldn't the prosecution want to present evidence of prior bad acts from the best sources possible? Protecting the sensibilities of men in their mid-twenties is unlikely to strike the jury as a good reason for sacrificing Jackson's cross-examination rights.

Propensity evidence, in my experience, is most powerful when the prosecution doesn't actually need it; it can be the icing, but only when there is a cake. In the case at hand, however, it seems the prosecution is desperate for all the help it can get. They are trying to ice a cake that so far, has fallen flat.

And this point will hardly be lost on Jackson's skilled attorney, Tom Mesereau. After the devastating cross-examinations he's performed so far, he can invite the juror to imagine how the accusers - if they had taken the stand - might also have collapsed on cross-examination.

Mesereau can also make this stinging point: If D.A. Tom Sneddon truly thinks the other five accusers were harmed, why didn't he ever filed charges on their behalf?

Sneddon might cite the statute of limitations. But Sneddon's office was certainly aware of Jordan Chandler's claims in time to bring charges on his behalf. And in the cases of the other victims, he could at least have argued that Jackson's power and might kept them silent. Yet no charges were brought.

In short, Sneddon is doing nothing to seek justice for those who may have been harmed, should the allegations prove true. Why? Perhaps because he can't prove those allegations - but is nonetheless willing to use them as a shaky foundation for continuing his vendetta against Jackson.

Here's an idea for Tom Sneddon: If you have proof that Michael Jackson committed sex crimes against other boys, then act as a prosecutor should, and charge him with those crimes.