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In California, Condoms No Longer Automatically Admitted Into Evidence In Prostitution Trials

Effective January 1, 2015 there is a significant new California law relating to admissible evidence in prostitution trials.

In prostitution trials, a common trick used by the prosecution is to use condom possession as evidence of prostitution. Until now, the prosecutor asks the police officer if any condoms were recovered from the defendant, and then arguse that possession of condoms is evidence to engage in prostitution. Now it won’t be so easy for the prosecution to get this into evidence. After all, it’s ridiculous. People possess condoms for all kinds of reasons. Use of condoms is not evidence of prostitution – it is evidence of practicing safe sex should the opportunity arise. Using condoms is a cornerstone of sound public health policy. What the prosecutors were doing in prostitution cases was criminalizing the use of condoms. This has now changed.

Under new Evidence Code 782.1, possession of condoms may not be introduced by the prosecution at prostitution trials unless the following happens:

  • The prosecutor files a written motion with the court. The motion must explain why possession of one or more condoms is relevant to the case.
  • Along with the motion, the prosecution must file an affidavit (a declaration sworn under the penalty of perjury). The affidavit must contain the offer of proof the prosecution intends to present. The affidavit must also be filed under seal.
  • If the court finds that the offer of proof in the affidavit is sufficient, then the court must order a hearing (without the jury present) so that defense may question the prosecution regarding the offer of proof.

At the end of the hearing, the court makes a determination whether or not the evidence of condom possession should be admitted into evidence. In making the determination, the court will balance the probative value of the evidence with the prejudice against the defense.

The big thing to keep in mind here is that this is a lot more work for the prosecution. In Los Angeles County courts, prosecutors are not accustomed to writing trial motions on misdemeanor cases – this creates a lot more work for them. This yet another reason why prostitution cases can and should be set for trial whenever possible. It is usually the way to get the best result in a prostution cases.

If you or a loved one are facing a prostitution related crime in Los Angeles or anywhere in California, contact The Law Offices of Jerod Gunsberg at 323-633-3423 or via this contact form.

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