It's most certainly bad news for Sheriff Ross Mirkarimi that the question "Which one?" now applies to domestic violence complaints filed against him.
Kraut, a 15-year prosecutor in the Los Angeles District Attorney's office, points out that, under Evidence Section 1101(b), even past uncharged acts can be used in court. While allegations pertaining to Mirkarimi's "character" are out-of-bounds, "evidence" of "specific prior acts when offered to prove a fact other than his or her disposition to commit the contested act" are admissible.
"In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant 'probably harbored the same intent in each instance,'" wrote Jeremy Price, a staff attorney for the First District Appellate Project.
In this case, Mirkarimi -- who will face trial over allegations he bruised his wife's upper right arm in an argument -- is now accused by an alleged former girlfriend of bruising her upper right arm in an argument.
In addition to Section 1101(b), a second section -- 1109 -- specifically deals with "evidence of the defendant's commission
of other domestic violence." Edward N. Ajlouny, a San Jose criminal defense attorney with a bevy of domestic violence experience, says that the code "doesn't put a lot of limitations" on what prosecutors may present in a domestic violence case. An allegation like the one filed yesterday against Mirkarimi, in Ajlouny's opinion, falls well within the bounds of what's normally fair game.
"Will they use prior evidence of domestic violence? Probably," he says. "It doesn't have to be proven conduct."
San Francisco District Attorneys could use this report to "show he did it before and has a 'woman problem,'" Ajlouny continued.
What the DA will do, with this and potential future reports, remains to be seen.
"At this point, because this is under investigation, we can't really go into the details," says Stephanie Ong Stillman, a spokeswoman for the District Attorney.