condemned by the courts at least until very recently our justice system is an accusation system it's not an inquisition inquisitorial system our rules of evidence are designed to address the charges that have been brought against a defendant dating back to the english common law to before the before the magna carta trials were based on the accusations made in the charges not based on the character the fused we followed this rule in our own constitution with promises of due process and guarantees of a fair trial the whole propensity evidence argument is must be understood in a historical context and historically it's been fundamental to our system of justice again that the defendant be based on the evidence against him on the crime charged  the reason behind this is because propensity evidence tends to allow the jury to convict again not on the charges but on defendant's  criminal character it's just the sort of rule that was wrong protected by due process the authorities against the use of prevent city have a dense are remarkably long remarkably uniform and based on very very fundamental constitutional provisions in fact the the guarantee of being tried on the accusations only is basically the same kind of a just just justice  system historically was a nation have a board to use a propensity evidence to obtain a conviction evidence must be material and relevant but the problem with propensity evidence is elements that are listed in that section my argument is that propensity evidence period is whether it's in this section or or seven point three or any other section only as to quote any matter to which it is relevant and seven four be expressly states was three factors the court may consider quote and weigh in the probative value of the evidence against and you prejudice to the defendant that's all true but what it comes down to is the admission of propensity evidence for for centuries it's been you know evidence is admissible to prove modus operandi to present to prove identity to prove all kinds of things except propensity to commit crimes regardless of whether the statute is artfully drafted or in artfully drafted propensity evidence as such should not be allowed in the american system of justice section seven point three that was found constitutional and donahoe seven point four that we're talking about today chips away at some of the most point three and cracks that almost perfectly fact the only material difference i can find is that seven point three relates to sex from seven point four relates to domestic violence  was not adjustment on donahoe was based on equal protection and on the only constitution provisions through our right to be tried on the charges brought against you due process was not specifically address donahoe really doesn't apply to my argument secondly there's a more fundamental difference between seven point three and seven point four then just the nature of the crimes in seven point three it said sex crime may be admitted for any any matter on which it is relevant in seven point four it says such evidence is admissible now i understand that that section b of seven point four tells the court to weigh the privateer value against any prejudicial effect but that's basically written out of the statute by the word it is in the first part of seven point four and that's the fundamental difference between seven point three and seven point four following the rules of statutory construction when the legislature uses a specific word you have to look through the whole statute to find mandatory because when they wanted to say maybe in some point where they actually said maybe and the use of the word is here shows that they knew what maybe meant they would have you sh they wanted it mandatory they could have but they knew how to make it discretionary because they've made other parts of seven point four discretionary by saying that there was a reason that they chose the word is and that was to distinguish it from the parts of the statute that same a big this unique case that says the word is mandatory no i believe nothing i can think of right off the top of my head but the rules of statutory construction say when a word is is in doubt you look at the rest of the statute to determine the meaning of the word but if we look at the dictionary isn't this evidence is not simply capable of being admissible it is admissible as that simply means it's possible evidence doesn't say a show that i'm arguing the like and i understand your argument intellectually drafted the statute is because it does say it is as opposed to maybe or k n or shall but is there any evidence that the legislature intended otherwise no they intended it to be like seven point three but they in fact did not make it seven point three so your position counsel is that you look statutory construction would indicate that you would look at the rest of the statute and you don't have to go very far to see and maybe consider first bearing on any matter to which it is relevant now with met say that it would not  admissible if not if it isn't relevant well that's that's that's part of the problem of the statute in the first part of in that part of the problem of saying it's just as camera was just saying that that is says to you shall be admitted it's relevant that saying it's not going to be admitted i mean you part of your problem is you don't think that there are relevancy and prejudice wouldn't looking at those portions of the statute indicate that it's not shall be admitted it still has to comply with relevancy protection again if they wanted to say maybe case to give the statute constitutional relief it is but i'm arguing that it's unconstitutional because of due process because of my fundamental  description for centuries and centuries and centuries against the admission of propensity evidence there's no good reason to have propensity statutes the way they talk about well sex offenders in some point three sex offenders are likely to re offend in this domestic abusers are likely to re offend but so are seeds so are drug offenders particularly drug offenders and drunk drivers are where do we stop allowing propensity evidence and i think that's the danger here is that we've opened the door to propensity have a dense more and more statutes are going to be coming down like that we're eroding further and further further and further reading parts of the constitution by allowing propensity have dents in more and more crimes it's not just sex offenders it's not have like i've said repeatedly for centuries and centuries propensity evidence was not allowed and for the very reason that this case is a perfect example i walk mr dabbs was convicted of  domestic abuse against amy two ways there were all kinds of holes in her story she waited over thirty six hours to report the offense she had a history of mental problems during the thirty six hours before she reported the offense  she left her marital home and went to visit other people she didn't report the abuse she went to work the next day and didn't report the abuse i'm not saying that it didn't happen i'm just saying that there were a lot of holes in the state's case and i maintain that the big reason that he was convicted was not based on the evidence against against mr dads in regards to any to waste it's because they heard that he had allegedly done this before he was not convicted it's this kind of of a situation that we need to protect against this is why court for centuries propensity evidence has not been allowed because the trier of fact does not look at the judge the defendant on his criminal history on other things that he may or may not have done but on the charges against him propensity evidence doesn't even allow for rehabilitation or for redemption he may have been a sexual offender and now he through through counseling rehab he is no longer or in a domestic abusers probably even more even more likely he is no longer yet he is that evidence is allowed to come in against him year after year after year again our legislation  legislature has parted ways with centuries old traditions of fundamental fairness now the accused can be portrayed not as somebody who may have committed the charges against him but as an evil person whether he's guilty of the charges or not i'm asking this court to end the erosion of the fundamental tenants of our constitution to end this new practice with donahoe you don't even have to was drafted by the legislature after this court's opinion in donahoe and i think what the difference in the language if it what it probably means is that the legislature read donahoe noted this court finding that seven point three slang which was ambiguous and decided that in drafting seven point forward they were going to change the language that this court found ambiguous and try to make their intent more clear just why they changed the language from may be admissible if admissible under the other rules of evidence which this court found ambiguous to admissible and may be considered for it's fair and notably there are really no other changes in the language between seven point three and seven point four other than that other than that clause other of course than the fact that seven point three talks about sex offenses and seven point four talks violates constitutional principles regard list of how the statute is drafted in the court will have to overturn donahoe and it will effectively be overturning the constitutionality of not just section seven point four but also section seven point three i'd like to begin with the plain language argument because much of defendants due process argument is based on its interpretation of the language of the statute now defendant argues essentially that the statute does not require a trial courts to consider relevance or und prejudice and even more than that that by saying is admissible the statute doesn't even allow the trial courts to consider these things the evidence is going to be brought in regardless of how relevant it is but this is a misreading of the plain language there is no indication here that the legislature intended in mission to be mandatory regardless the phrase is admissible means that the that such evidence is capable of being admitted i would argue that because the word unmissable means capable of being embedded and miscible itself is the counsel spoke much about the possibility of very old convictions being brought in against a defendant and whether or not that would be unfair but this court should hold that the language of the statute alleviates due process concerns because in the case of a very old conviction t can exclude a very old conviction by holding this isn't relevant to this new crime because it's been twenty years and the defendant is obviously a much different person or they could hold that this is unfairly prejudicial to the defendant because it doesn't tell us much about what happened in this actual crime if the legislature had intended to delete these longstanding requirements of relevance and probity over prejudice it could have done so explicitly in the statutory language but instead the statutory language specifically references these requirements and there's really no logical explanation for why the legislature would have included that language in section seven point four eight or seven point four b if they had really intended that this evidence is going to be admitted regardless of whether it's relevant prejudicial even if this court does find that the plain language is ambiguous application of traditional interpretive principles support our reading of the statute now defense and defendants interpretation would essentially render section seven point four be superfluous which is to be avoided in interpreting statutes of the court strives to interpret statutes in a way so as to uphold its constitutionality and to construe the statute as a whole not to ignore certain sections of the statute based on its interpretation of one phrase in addition the legislative history from the legislature clearly supports the state's interpretation the legislature intended that the statute operate identically to section seven point three but the trial court considering relevance and prejudice before admitting or disallowing the evidence now notably as justice freeman asked earlier in the defense case in the trial court all of the parties assumed that section seven point four was going to operate just like seven point three would the evidence was considered under these principles before  prejudicial and ultimately the trial court did end up excluding a portion of katie bailey's testimony now if defendant's interpretation of the statute is correct and this he believes testimony was to be admitted regardless of whether it was irrelevant or  uly prejudicial then ironically he ended up receiving more protections from the trial court and the trial court was even allowed to provide him and this conclusion is also supported by the federal preston interpret in the federal rules of four one three and fo one four which also use that is admissible language the federal courts have consistently interpreted these rules to include the relevance and prejudice versus probity requirements and that admission is not mandatory now in terms of the constitutionality as i already s consider relevance and on to prejudice in terms of federal due process united states supreme court has specifically reserve this question but all of the lower federal courts have upheld its constitutionality in terms of equal protection defendants forfeited honour's you don't have to overrule donahue or donohoe but please don't expand donahoe further into other crimes if you expand it into to domestic violence you can expand it into drug cases you can expand it into murder you can expand it into a fleeing alluding you can expand  to to any case that there is it needs to be stopped now this state argued that your honour's in donahoe corrected the error found some of the language to be ambiguous that's not the way that i donahoe was just saying is this statute constitutional you looked at other statutes from other states and found that it was the state also said that the legislature had had the knowledge of donohoe when they drafted seven point four that's true with that knowledge they change the word maybe two is they had to have meant something by doing that  be mandatory the state said that the trial court has the discretion to to admit or not admit certain can convictions or certain evidence that might be old they can they have that discretion however they can they can use their discretion to decide that something thirty years old twenty years old can come in that's part of the problem of