Response to "state vs. Teuscher, the 'exception' Swallows the Rule"
| Publication year | 1996 |
| Pages | 8 |
| Citation | Vol. 9 No. 3 Pg. 8 |
Robert N. Parrish, Division Chief
Children's Justice Division Utah Attorney General's Office
This article is intended as a response to Mr. Gary Pendleton's article which appeared in the October, 1995 issue of the Utah Bar Journal. I was the lead prosecutor in the Teuscher case, and I have briefed the issue of the use of Rule 404(b) in dozens of child abuse cases. It concerns me that despite the fact the Utah appellate courts have made some very logical and reasonable interpretations of the Rule, Mr. Pendleton did not mention any of them in his article. The title of his article, "State v. Teuscher, The 'Exception' Swallows The Rule, " is not only misleading, it is not news. As early as the case of State v. Tanner, 675 P.2d 539 (Utah 1983), the Supreme Court of Utah, interpreting Rule 55 of the old Utah Rules of Evidence said: "The substance of the rule is inclusionary: evidence of other crimes or civil wrongs that is competent and relevant to prove some material fact, other than to show merely the general disposition of the defendant, is admissible." 675 P.2d 5469 (emphasis in original). The Tanner case involved use of evidence of prior child abuse committed by the defendant against a child who was murdered by one of several possible perpetrators. The Supreme Court focused on the necessity of such evidence and the unique need for it in child abuse prosecutions:
Where there is child abuse, there will invariably be secrecy. The great disparity of power and control between the abuser and the child assures that there will be little, if any, direct evidence. Even in cases where the victim survives, the child's age and vulnerability make it unlikely that he or she could be expected to testify competently. In these cases, it is probable that evidence of prior abusive conduct by a caretaker may be the only available link between the specific nature of the child's injuries and the caretaker who has offered either no explanation or an inadequate explanation of these injuries.
675 P.2d. 547. The Court emphasized, though, that if other evidence sufficiently establishes motive, intent, identity, absence of mistake, or opportunity, the prior bad acts would not be necessary and thus might be excluded, even if relevant.
In over a decade of prosecuting child abuse cases, I have seen the wisdom of the Tanner court's observation in every...
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