Voters Guide

Missouri Amendment 2: Prosecutors want jurors to know about defendant’s past in child sex cases

Missouri voters are being asked to approve a change in the state constitution that would grant prosecutors wider latitude in presenting evidence in child sex cases.

Constitutional Amendment 2, if passed, would allow prosecutors to present evidence of past criminal acts in trials of defendants accused of committing sex-related crimes against victims younger than 18.

That additional evidence could include both charged and uncharged prior acts.

The evidence could still be excluded by a judge who would weigh its value against the possibility of unfair prejudice to a defendant. The amendment would also limit the use of such prior acts’ evidence “to support the victim’s testimony or show that the person charged is more likely to commit the crime.”

The proposal has strong support among prosecutors and those who work with child victims.

Platte County Prosecuting Attorney Eric Zahnd said Missouri is now among the most restrictive states in the country when it comes to presenting such evidence. The amendment would establish for Missouri the same rules of evidence now allowed in federal courts, he said.

“We’re the outliers when it comes to this kind of evidence,” Zahnd said. “It gives us a fighting chance.”

Jackson County Prosecutor Jean Peters Baker said the proposal recognizes the special nature of child victims and perpetrators in sex crime cases.

Often, there is a delay in reporting the crimes, and by the time they are reported, any physical evidence is no longer available. That leaves the case solely dependent on the victim’s testimony.

“The evidence is the kid,” Baker said.

The American Civil Liberties Union of Missouri opposes the amendment.

Jeffrey Mittman, executive director of the ACLU of Missouri, said voters should “avoid the temptation” of allowing evidence of uncharged crimes to be presented at trial.

“Tampering with the Missouri constitution to take away constitutional protections that are a traditional and necessary part of our criminal justice process goes against American ideals,” Mittman said. “The Missouri Supreme Court has repeatedly reminded us: In America, we are tried only on the crime charged.”

Twice, Missouri lawmakers have passed laws to allow such evidence in cases against alleged child sex offenders.

But both times, the state Supreme Court has found those laws unconstitutional, most recently in 2007.

“Evidence of prior criminal acts is never admissible for the purpose of demonstrating the defendant’s propensity to commit the crime for which he is presently charged,” the Supreme Court said in its unanimous 2007 ruling. “There are no exceptions to this rule.”

Passage of Amendment 2 would create that exception.

“This was one thing we could do to help prosecute these cases as long as the evidence is relevant to the case and a judge decides it’s admissible,” said Republican state Rep. John McCaherty of High Ridge, sponsor of the joint resolution that placed the amendment on the ballot.

The Missouri Senate voted 30-2 to approve the resolution, while the House of approved it by a vote of 131-26.

Supporters said the fiscal impact of the amendment would be limited, estimating that it could result in at least $1.4 million in annual costs to local jurisdictions to provide additional defense services.

But Zahnd said that when defendants are confronted with evidence of their past actions, the law could actually lead to more guilty pleas and fewer trials where child victims would have to face their abusers while testifying.

He said it was “fundamentally unfair” to put children in that position alone when evidence to support what they say can’t be used.

“Without a doubt, these are the most difficult cases to present to a jury,” he said. “Jurors need to know the complete and full story.”

To reach Tony Rizzo, call 816-234-4435 or send email to