What Is Propensity Evidence?

Propensity evidence is evidence of one crime that is used to show the defendant is more likely to have committed another crime. For example, the prosecution could use evidence of another act of domestic violence to help prove that the defendant committed the current crime of domestic violence. Crimes would have to be similar in nature for propensity evidence to work. The prosecution cannot use a prior DUI to show the defendant currently committed a sex crime. There are only two types of crimes where propensity evidence is allowed – sex crimes and domestic violence. Evidence Code section 1109 governs propensity evidence in domestic violence charges. (Visit the sex crimes section of our website for a discussion of Evidence Code section 1108).

Evidence Code section 1109

Evidence that a defendant has committed an act of domestic violence (including elder abuse or child abuse) can be used by the prosecution to help prove that he committed the current act of domestic violence (including elder abuse or child abuse). Specifically, Evidence Code section 1109(a) states:

(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.

(2) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving abuse of an elder or dependent person, evidence of the defendant’s commission of other abuse of an elder or dependent person is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.

(3) Except as provided in subdivision (e) or (f) and subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendant’s commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. Nothing in this paragraph prohibits or limits the admission of evidence pursuant to subdivision (b) of Section 1101.

What this translates into is that the prosecution can use evidence of another domestic violence offense to prove that the defendant committed a current domestic violence offense. Evidence Code section 1109 further defines what constitutes an offense of domestic violence, elder abuse or child abuse. The prosecution cannot simply introduce evidence of any crime and call it “domestic violence.” The evidence of another act of domestic violence must meet the definitions laid out by Evidence Code section 1109.

There are some limitations to this rule under Evidence Code section 352, but practically speaking, if there’s evidence that a defendant has a domestic violence charge or elder abuse charge or child endangerment charge on his record, the prosecution will introduce that evidence to the jury to help them prove the defendant committed the current domestic violence or elder abuse or child endangerment offense. Unlike sex charges, there is a time limit on how far in the past the domestic violence offense could be. Normally, evidence of domestic violence offenses that are more than 10 years old are inadmissible, although exceptions are made in the “interests of justice”. The evidence of the other domestic violence offense doesn’t have to be in the past though. Let’s say a defendant was accused of spousal battery against his ex-wife in 2001 but his trial only started in 2003, and during that time, he committed and was convicted of another domestic violence offense involving his current girlfriend in 2002. The prosecution can use evidence of the conviction involving the current girlfriend, even though the domestic violence against the girlfriend occurred after the domestic violence against the ex-wife. Finally, the evidence of the other crime does not even require a conviction. Using the previous example, even if the defendant were acquitted of the domestic violence charges against his girlfriend, the prosecution could still use evidence from that case in the spousal battery against his ex-wife! This code section is a powerful tool for the prosecution in domestic violence cases.