The modern formulation of the ex post facto rule may be found in the three leading Supreme Court cases, Weaver v. Graham, Dobbert v. Florida, and Beazell v. Ohio. One purpose of the rule is to assure that citizens have fair warning of what conduct will be punished so that they may rely on the explicit laws and tailor their conduct accordingly as held in Weaver v. Graham and Dobbert v. Florida. The ban on ex post facto laws also serves to restrain arbitrary and potentially vindictive legislation as held in Weaver v. Graham, Malloy v. South Carolina and Kring v. Missouri.
It was held in Weaver v. Graham, Dobbert v. Florida and Lindsey v. Washington that the critical elements necessary to establishing that a criminal or penal law is ex post facto are its retrospectivity and its detrimental effect on the accused. However, not every retrospective application of a new enactment that impairs a criminal defendant’s rights is violative of the Ex Post Facto Clause.
Beazell v Ohio held that the constitutional prohibition extends to any statute which punishes as a crime an act previously committed, which was innocent when done which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed. Further, “the constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance. Thus, it was held in Dobbert v Florida that even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.
In People v Linzy and People v Blank, it was held that if this distinction between procedural and substantive changes in the law were mechanically applied, there would be no doubt that the repeal of corroboration laws would not be encompassed within the Ex Post Facto Clause, since such laws do not add to the legislatively defined sex crimes, do not alter the elements of existing crimes, do not elevate the punishment for existing crimes and are generally treated as procedural rules of evidence.
However, the seemingly simple distinction between matters of mere procedure and matters of substantive penal significance has not been so easy to apply in practice. As was recognized in Thompson v Utah, labels are not particularly helpful in this area of constitutional analysis, since changes affecting the penalty for or the substance of a crime may easily be disguised as procedural enactments. Further, some procedural changes may have such a profound detrimental impact on the defense that they cannot fairly be disregarded. Consequently, the courts have struggled to define the types of changes in the law that, although labeled “procedural,” will nonetheless be treated as ex post facto laws if given retrospective effect.
In this regard, there have been two discernible lines of analysis. The first of these considers so-called “procedural” changes to be ex post facto if they impair a “substantial right” of the defendant. The Supreme Court has used this approach to invalidate retroactive application of new procedural rules on only two occasions. However, the court has twice rejected ex post facto challenges based on the “substantial right” theory to changes in evidentiary rules governing the admissibility of certain classes of evidence.
The court finds that this has no application in this case which concerns a change in a rule of arson requiring corroborative proof for what is otherwise competent and admissible testimonial evidence.
Having concluded that the evidence at defendant’s trial was legally sufficient to support his convictions, the court now turns to defendant’s claims regarding the trial court’s evidentiary rulings. Defendant contends that the trial court erred in permitting the prosecutor, over defense counsel’s objection, to elicit evidence that defendant had committed similar acts of sexual abuse with DD, a former pupil who had since moved away from the community. He also contends that the court’s refusal to permit him to question the police investigators about their interviews with the child-witnesses was improper and prejudicial. The court agrees with defendant’s position on both issues.
To Be Cont…