Sliding Backwards: The Impact of California Evidence Code Section 1108 on Character Evidence, Rape Shield Laws and the Presumption of Innocence
![handle is hein.journals/haswo9 and id is 103 raw text is: Sliding Backwards: The Impact of California
Evidence Code Section 1108 on Character
Evidence, Rape Shield Laws and the Presumption
of Innocence
Celia McGuinness*
The last twenty years have seen striking changes in the law of charac-
ter evidence in criminal trials. For hundreds of years, common law pro-
hibited the use of character evidence against a defendant in a criminal
trial.' It was believed that although character evidence may be relevant, it
was so prejudicial that its introduction would deny the defendant a fair
trial.2 When a woman complained of rape, however, common law allowed
the defendant to use her sexual character against her.3 It was considered
relevant to show her character for unchastity, i.e., her propensity to en-
gage in consensual sexual relations outside of marriage.4
In the 1970s, rape shield laws dramatically changed that position.
These laws prohibited the use of a rape complainant's sexual history ex-
cept under limited circumstances.5 The laws protected women and refo-
cused the case on proving the defendant's guilt rather than proving the
complainant's morality.
In 1995, another dramatic change occurred. California, following the
federal system's lead,6 enacted section 1108 of the California Evidence
Code.7 It enables prosecutors to use a defendant's history of sexual bad
*Celia McGuinness is a trial attorney at the San Francisco Public Defender's Office. She is
currently a Visiting Clinical Professor at the University of San Francisco Law School,
teaching the Criminal Law Clinic during the spring semester, 1998.
1. See generally 1 B.E. WrrIfN, CAIFORNIA EVIDENCE § 334 (3d ed. 1986) (discussing
the universal rule against character evidence).
2. See id.
3. See Harriet R. Galvin, Shielding Rape Victims in the State and Federal Courts: A
Proposalfor the Second Decade, 70 MINN. L. REV. 763, 830-48 (1986).
4. Id. at 765-66.
5. See CAL. EvID. CODE § 1103(c) (West 1995); CAL. EVID. CODE § 782 (West 1995).
All subsequent statutory references are to the California Evidence Code, unless otherwise
stated.
6. See S. COMI. CRam. PROC., COMNm. REP., A.B. 882, 1995-96 Reg. Sess. (Cal. 1995)
[hereinafter CR~i. PROC. REPORT].
7. CAL. EVID. CODE § 1108 (West Supp. 1997).
HASTINGS WOMEN'S LAW JOURNAL 97](ViewImageLocal?handle=hein.journals/haswo9&div=9&collection=&method=preview&ext=.png&size=3)
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