	15 May 2013 Benghazi and Lewinsky On its face, the murder of Americans in Libya, including our ambassador, has absolutely nothing to do with … Read More.
	10 May 2013 Mother Love My daughter was born on Mother's Day, 23 years ago. It was the happiest day of my life — matched only, … Read More.
	8 May 2013 The Drunk Guy in the Parking Lot The report from the Arlington, Va., Police Department is, on its face, hardly newsworthy: "SEXUAL BATTERY,… Read More.

The Other Women

Jury selection opens this week in the first televised trial in Los Angeles since O.J.'s — the state's effort to prove that another celebrity killed another woman in compromising circumstances. But the most damning evidence likely to be introduced in the trial of legendary rock producer Phil Spector is not about that night four years ago, when police found 40-year-old actress/hostess Lana Clarkson dead at his home. It is about four other nights, with four other women. The grand jury that indicted Spector heard testimony from four women who claimed that Spector pointed guns at them and threatened them because they rejected his sexual advances. In what may prove to be the key legal ruling in the case, Los Angeles Superior Court judge Larry Paul Fidler has already rejected the defense's arguments that such testimony was unduly prejudicial and of limited probative value, and ruled that the four women could testify before the jury in the case in chief.

Is it relevant that Spector had a past history of sexual violence? Does the fact that he waved guns at four other women make it more likely that he shot a fifth? Is the sky blue? The hard question is not whether it proves anything, but whether it proves too much.

Technically, evidence of past "bad acts" may be admissible to prove the existence of a motive or plan or bad intent. Technically, it is admissible in order to prove not what the defendant did, but the state of mind in which he did it. In practice, it tends to prove much more.

In the much-publicized trial of William Kennedy Smith for rape, the prosecution sought to present similar evidence, in that case from other women who would have testified that the defendant became angry and violent when he drank. But the judge, in what was the key ruling in that case, held that since evidence of the woman's sexual past was inadmissible under the state's rape shield law, symmetry required similar protection for the defendant. It is much easier to raise questions about one woman's credibility than four.

Smith was acquitted.

In the Smith case, the defense successfully argued that it was fundamentally unfair to force the defendant to answer not only for the crime charged, but also to defend against other, older crimes that had never produced charges. Bad enough to stand trial for one rape, but for four?

Of course, precisely the same argument applies in Spector's situation. The testimony of the other women will require him not only to defend himself against the charge that he murdered Lana Clarkson, but also against the uncharged assaults on the other women.

So why a different result?

The obvious answer is that it is a murder case and not a rape case. There is no shield law, no argument for symmetry. In the Spector case, the defense is expected to argue that the victim committed suicide, and will no doubt do everything in their power to call into question her stability and sanity. Why tie the prosecutor's hands while leaving the defense free to throw mud? Besides, what is involved in the Spector prosecution isn't sex, but violence. The fact that someone has had sex in the past with others is more embarrassing than probative, since most of us do. Most of us don't wave guns around.

But those arguments don't really work. Why should rape victims have to give up the protection of shield laws to untie the prosecutor's hands? Why should rape, which is a crime of violence, be treated differently than other crimes of violence? "Different judges" explains more than "different crimes."

Ultimately, the rules of evidence require judges to balance probative value and prejudicial effect. To do that they inevitably have to engage in the business of prediction, trying to figure out in advance how a jury, in this case one that has yet to be picked, will respond in a context that has yet to evolve.

Just how important the evidence from the other women will be in the dynamics of a trial that has yet to take shape is at best a guess. But the fact remains that the more important it is, the stronger the case both for and against its admission. If it proves too much, it shouldn't be allowed to prove anything at all.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.