Trial Lawyers will tell you "I don't know the truth, I don't know all the facts, but I do know all the evidence." What constitutes "evidence" is governed by rules published by the Supreme Court. One rule provides that proof of a defendant's prior crimes or bad behavior is not "evidence" that a jury can hear if offered to prove the defendant is the kind of person who would be likely to commit the crime being prosecuted. The rule seeks to avoid trials within a trial about past events, and to protect a defendant from being convicted of a crime because he's a despicable character rather than because there is evidence he is guilty of the crime charged.

Danny Leprous was convicted of sexual assault of Nancy by putting her against the wall, fondling her breasts and penetrating her with his fingers. Nancy suffered from undisclosed disabilities. She lived with Danny and his wife. The State introduced evidence of horrible treatment by them, including making Nancy eat like a dog, locking her out of the apartment, and physically assaulting her - all the while taking almost all of her social security check. He appealed the admissibility of the mistreatment evidence.

The Supreme Court stated that even though it was improper to prove that the defendant was the kind of person who would commit the acts charged, Leroux had a fair trial. The other acts, the Court ruled, were admissible to prove the "context" of the charged assaults, rather than that the defendant was a bad person who deserved to be convicted. The acts, the Court wrote, were evidence of the abusive relationship between Leroux and Nancy to provide a "context" for the jury to evaluate the credibility of the victim. Was she scared of the defendant and therefore the jury didn't get the whole story? Perhaps she was so abused that the defendant was able to get her to submit without force but it wasn't consent. The evidence, the Court ruled, was necessary to allow the jury to understand the defendant's acts on the date in question.

The Court's "context" rationale seems a stretch to get around the rule against proving the defendant is the kind of person who would commit the charged crime. But it certainly makes it easier to get a sex conviction. Isn't this what the State's Attorneys are asking for? State v. Leroux 2008 VT 104