2.6-13 Other Misconduct - Criminal Sexual Behavior
Revised to November 17, 2015
When the defendant is charged with criminal sexual behavior, evidence of the defendant's
commission of another offense or offenses is admissible and may be considered
if it is relevant to prove that the defendant had the propensity or a tendency
to engage in the type of criminal sexual behavior with which (he/she) is charged.
However, evidence of a prior offense on its own is not sufficient to prove the
defendant guilty of the crimes charged in the information. Bear in mind as you
consider this evidence that at all times, the state has the burden of proving
that the defendant committed each of the elements of the offense charged in the
information. I remind you that the defendant is not on trial for any act,
conduct, or offense not charged in the information.
This approach replaces the former practice of admitting this type of evidence as common scheme or plan.
State v. DeJesus, 288 Conn. 418, 470-71 (2008); State v. Antonaras, 137 Conn. App. 703 (2012) (court improperly instructed jury on the common scheme or plan exception). See Code of Evidence § 4-5 (b).
Evidence of prior sexual misconduct may be admitted under this exception if it is relevant to prove that the defendant had the propensity or a tendency to engage in the type of criminal sexual behavior with which he or she is charged, its probative value outweighs its prejudicial effect, and the jury is given a limiting instruction on its use. State v. DeJesus, supra, 288 Conn. 473-74. The trial court should adapt this instruction to the specific purpose for which the evidence was offered.
Defendant does not have to be charged with a sexual crime for evidence of prior criminal sexual behavior to be relevant. State v. Johnson, 289 Conn. 437, 455-56 (2008); State v. Snelgrove, 288 Conn. 742 (2008).
See also Other Misconduct of Defendant, Instruction 2.6-5.