It may be offered if the current case and the earlier conduct fit Evidence Code section 1108, but the prior accusation is not automatically proved or admitted. Section 1108 creates an exception to the general character-evidence rule for qualifying prior sexual-offense evidence, subject to the judge’s Evidence Code section 352 review. The prosecution must also disclose the proposed evidence under the applicable discovery rules, including Penal Code section 1054.7; that statute has timing rules and good-cause exceptions, so it is not an unconditional deadline. (Evidence Code §§ 1108, 1101; Penal Code § 1054.7)
Check whether both acts fit section 1108
The current prosecution must be for a qualifying sexual offense, and the earlier conduct must fall within section 1108’s definition of another sexual offense. The definition includes specified conduct as well as attempts and conspiracies. A label in a police report or a prior accusation does not answer whether the statutory definition is met or whether the evidence proves the alleged conduct. A prior conviction is not the sole way the statute describes qualifying conduct, but the prosecution still must establish an admissible evidentiary basis for offering it. (Evidence Code § 1108)
Section 1108 changes the ordinary section 1101 character-evidence restriction, but it does not remove the court’s balancing under section 352. The judge may consider probative value against undue time, prejudice, confusion, or the risk of misleading the jury under Evidence Code section 352. Section 1108 is an express exception to the general character-evidence limit in section 1101. The age and circumstances of an earlier event may matter to section 352 analysis. Section 1108 has no fixed ten-year rule; the separate domestic-violence rule in section 1109 generally excludes acts older than ten years unless the court finds admission in the interests of justice. (Evidence Code § 1108; Evidence Code § 1109)
Review disclosure and the underlying evidence
Penal Code section 1054.7 generally sets pretrial disclosure timing and requires material first obtained within 30 days of trial to be disclosed immediately, unless good cause supports a restriction or delay. Evidence Code section 1108 ties prosecution disclosure of the proposed evidence to that discovery provision. Ask counsel to review the actual notice, witness statements or summary, dates of disclosure, and any court order addressing timing. Do not assume a late-produced item is automatically excluded or that an accusation alone establishes the earlier event. (Evidence Code § 1108; Penal Code § 1054.7)
Useful questions for counsel include whether the current and prior alleged acts satisfy the statute’s definitions; what evidence supports identity, timing, and the claimed conduct; whether the prior matter ended in a conviction, dismissal, or no filing; how much trial time a separate incident would require; and whether the evidence risks confusion or unfair prejudice. These are issues for the court on the record, not a guarantee of exclusion or admission.
The Law Offices of David S. Chesley represents people facing California sex-offense charges. Call (800) 755-5174 to discuss proposed prior-act evidence and pretrial disclosure.