Character Evidence - Lecture notes 1 PDF

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Character Evidence FRE 404 (a)

Character Evidence (1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

Rule 404(a)(1) deems inadmissible “evidence of a violent disposition to prove that the person was the aggressor in an affray, or evidence of honesty in disproof of a charge of theft.”

Essentially, you cannot use character traits to prove conduct

3 types of propensity character evidence that are admissible under this rule: 1. Reputation 2. Opinion 3. Specific act evidence ^ Rule 405(a)

People v. Zackowitz Facts: As Zackowitz’s wife was passing by four men in Brooklyn, Coppola (victim) made an insulting comment to her. Zackowitz, (D) seeing his wife in tears, berated the men with offensive language. He had been drinking prior to this confrontation. Zackowitz and his wife returned to their apartment where the wife told him Coppola had asked her to “lie with her and offered her two dollars.” Enraged by this, Zackowitz approached the four men once again. Words and blows were exchanged and Coppola came at Zackowitz with a wrench. Zackowitz then shot Coppola.

The prosecution sought to demonstrate the murder was premeditated, and that Zackowitz was therefore guilty of first-degree murder. Therefore, during trial, the prosecution submitted evidence that Zackowitz owned three pistols and a teargas gun, which were stored in his apartment at the time of the murder.

Issue: What was the defendant’s state of mind?

Held: Judgment should be reversed and a new trial ordered

Analysis: “Laying the weapons before the jury was to bring persuasion that here was a man of vicious and dangerous propensities, who because of those propensities was more likely to kill with deliberate and premeditated design than a man of irreproachable and amiable manners.” The prosecution simply wanted to unfairly prejudice the jury by introducing these weapons that have no relevance to the crime. He tried to prove that because the defendant owned all those weapons his is an evil person and more likely to kill deliberately. The prosecution characterized the defendant

as a

“desperate type of criminal”, a “person criminally inclined.”

He had gathered these weapons together as curios, a collection that interested and amused him. Whereas the jury possibly gave too much weight to the evidence and allowed it to bear too strongly on the present charge.

He was made to answer to the charge, pervasive and poisonous even if insidious and covert, that he was a man of murderous heart, of criminal disposition

Dissent: The defendant was not presented to the jury as one having a “dangerous disposition” but rather as someone who had the opportunity to carry out his threats with a weapon and did so.

Class Notes on Zackowitz: What is the evidence in dispute? – The information that he has other guns in his home What is the prosecutions theory as to the relevance of this evidence? – Trying to prove that he is a man of vicious and dangerous propensities How does the evidence address the issue of this case? – It was premeditated. But this theory is prohibited so the real theory they are putting forward is - When he went back to his apartment, he made a selection from his personal arsenal to go back and shoot coppola What is the danger of this evidence? – How does the judge make the decision as to admit or dismiss the evidence? –

What are the distinctions made?

The Propensity Box Propensity character evidence is the use of evidence that a person has a particular character trait generally is not admissible to show that the person acted in accordance with that trait at a particular time.

Propensity evidence can be defined more simply as evidence whose probative value depends upon the aphorism “once a criminal, always a criminal.”

The problem with admitting the evidence is that there is a concern that a jury will give excessive weight to the evidence or convict a defendant as a means of punishment for past deeds or merely because the jury view that this sort of person is better kept off the streets even if he is not guilty of the crime charged. This is otherwise known as “preventative conviction,” meaning the jury considers justified even if the defendant should happen to be innocent momentarily.

Additionally, it would be unfair to require the defendant to defend not only against the crime charged but to disprove prior acts or explain his or her personality. Finally, there is a possibility that the jury will overvalue the character evidence in assessing the guilt for the crime charged.

The evidence could also distract and confuse the jury.

Under rule 105, the judge must issue a cautionary warning to the jury.

Example of the Propensity Box: This person has stolen before -> she is likely to steal again -> she is guilty of stealing in this case Rule 401 - This passes the relevance test – It is probative of the fact that he stole before and is material to show that he has experience in stealing Probative value Rule 403 – unfairly prejudicial – past acts may weigh too heavily on current decision / may make decision on improper grounds / waste time / confuse the jury

FRE 403 v. FRE 404 - unfairly prejudicial always substantially outweighs probative value in cases that always fall within the scope of rule 404

FRE 404 (b)

Crimes, Wrongs, or Other Acts (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: Rule 404(a) prevents the use of character traits to prove conduct and Rule 404(b) essentially, ignores this propensity rule. Defendant does not have to first put his character in issue for Rule 404(b)(2) Only evidence of specific instances can be admissible (405(a))

Operative Words: “Crime, wrong or other act” – refers to any act other than those directly at issue in the case Waste Time Might mislead the jury ‘May’ – discretionary – so you still must argue rule 403 ‘Such as’ – this list is illustrative not exhaustive

The rule allows the introduction of other acts evidence for limited purposes if it bears on a relevant issue, such as, motive, opportunity, intent etc.

The idea is that these do not go through the propensity box – they do not go to someone’s character. In theory, we go around the box but the line is very small.

Analysis:

Rule 404(b)(1) is unnecessary. It merely clarifies the meaning of rule 404(a)(1) because rule 404(b)(1)’s statement restates the substance of rule 404(a)(1). It is basically saying the exact same thing. It has the same meaning.

Additionally, rule 404(b)(2)’s instruction that evidence of other acts ‘may be admissible for another purpose’ is unnecessary because rule 404(a)(1) bans only one thing – evidence of a character trait offered to prove action. It does not ban the other purposes (intent, motive, opportunity etc.) contemplated by rule 404(b)(2). The list of possible other purposes presented in the rule is unnecessary.

So rule 404(b)(2)’s list of possible other purposes is merely illustrative, not exhaustive.

Rule 404(b)(2) does not require that trial judges admit evidence of other acts whenever such evidence does not violate the propensity evidence ban. Rather, the rule says only that the evidence “may be admissible for another purpose.” The word ‘may’ indicates that admission of such evidence remains within the court’s discretion. Typically judges will evaluate the evidence under Rule 403 and exclude it if its probative value is substantially outweighed by the risk of unfair prejudice, confusion of the issue or undue delay.

The permitted purposes listed in Rule 404(b)(2) are not ‘exceptions’ to Rule 404(a)(1). They are merely possible uses of other-acts evidence not banned by Rule 404(a)(1).

Routes around the Box Rule 404 bars only one thing – the forbidden inference of action on a particular occasion in accordance with a character trait

What you must do is create a smaller pool of people who may have committed the crime

For example: Criminal history using skills Specialized skills Everyone

You start with – 404 objections, then

403 objection and; When you have lost those ask for a limiting instruction – rule 105

Admissibility analysis What is the purpose? (start with around the box purpose) FRE 401 – is this evidence material / probative? FRE 403 – balance probative value and prejudicial FRE 404(b) and probative worth – Reliability - Reliability of the evidence Similarity between acts Proximity of acts – (closer they are the higher the probative worth) Temporal Geographic Theory of admissibility Availability of other evidence (if this risks evidence going through the propensity box, is there any other evidence that can be introduced?) FRE 404(b) and unfair prejudice – risk that jury will ignore limiting instruction and make prohibited character inference

Rule 403 risks Past acts may weight too heavily on current decision May make decisions on improper grounds – idea that the defendant is a bad guy and should be locked up Waste of time Confuse the jury Unfair prejudice risk – the risk that jury will ignore any limiting instruction and make prohibited character inference.

United States v. Trenkler Facts: On October 28, 1991, a bomb exploded at the Roslindale, Massachusetts house of Thomas Shay, Sr., killing one member of the bomb squad and severely injuring another.

Thomas Shay Jr. and Alfred Trenkler (defendant) were charged with the bombing. Trenkler was tried separately from Shay Jr.

The prosecution contended that Trenkler had built the bomb for his friend Shay Jr. to use against his father.

The prosecution also sought to admit evidence of a similar bomb built by Trenkler used in a bombing in Quincy, Massachusetts. The prosecution contended that striking similarities in the two bombs showed that Trenkler also built the Roslindale bomb.

The bombs were similar in components, design, and construction. The prosecution also brought in testimony that a computer database of explosives which stored information on bomb characteristics identified the two bombs as similar. The district court ruled the evidence admissible. Trenkler was convicted and appealed.

Issue: Whether or not the theory of the other bomb is admissible to prove the defendant built the bomb he is charged with?

Held: admissible

Reasoning: The court must determine whether the evidence has some special relevance independent of its tendency simply to show criminal propensity. Second, if the evidence has special relevance on a material issue, the court must then carefully conduct a rule 403 analysis to determine if the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

Special Relevance There is a high degree of similarity between the other act (bomb) and the charged crime.

Whether the characteristic relied upon are sufficiently idiosyncratic to permit an inference of pattern for purposes of proof? Trenkler contends that the array of similarities between the two incidents amounts to no more than a collection of ‘prosaic commonalities’ that cannot give rise to an inference that the same person was involved in both acts without reference to propensity.

The court held that an exact match is not necessary

The test must focus on the ‘totality of the comparison’ demanding not a facsimile or exact replica’ but rather that ‘conjunction of several identifying characteristics or the presence of some highly distinctive quality

The court held that the balance of the evidence tilts sufficiently towards admission to satisfy the first step of the rule 404(b) analysis.

Accordingly, the district court did not abuse its discretion in determining that the numerous similarities in components, design and technique of assembly, combined with the similar MO’s and the closeness of geographic proximity between the two events, sufficiently support the inference that the same person built both bombs.

Both bombs were remote-controlled, radio-activated, electronic explosive devices, were handmade mechanisms, comprising in general of electronic components easily purchased at a hobby store.

Court held that the device used must be so unusual and distinctive as to be like a signature. Both incidents involved not simply bombs, but remote-controlled bombs that were placed under vehicles. In both instances, the bombs were constructed and used to benefit a friend of the builder and the builder attempted to conceal his identity by using a third party to purchase the electronic components.

The fact that both bombs occurred within relatively close geographic proximity must be given some weight in the analysis

Court held that the ‘prosaic commonality’ was insufficient to give rise to an inference that the same person was involved in both acts without reference to propensity

Due to the laundry list of similarities and overall MO the district court did not abuse its discretion in admitting the evidence

Probative Value and Unfair Prejudice Must also review the trial court’s determination that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice. Although the evidence of similarity could have been stronger, it was substantial Danger of prejudice is outweighed by probative value as the jury received an instruction under rule 105.

Dissent: EXIS-derived evidence – potential problem – why did investigator only choose 10 characteristics; ignoring certain specifics? EXIS evidence is misleading because is focuses jury on trees instead of the forest. The central and most important ingredient in the explosive is fundamentally different.

Class Notes on Trenkler: What was the basis that the trial court found the other bomb to be relevant? – A combination of identity, knowledge, skill etc. – court is protecting itself on appeal by mentioning these elements that are in Rule 404(b)(2).

Sufficiently Idiosyncratic is a high degree of similarity. The Court held that there is no need for it to be exact. Test = conjunction of several identifying characteristics or a highly distinctive quality What is the limit that the court gives? A single prosaic commonality is not sufficient.

Relevance? – Bomb making is a very specified skill, the pool is quite small. But then looking at how similar the components are reduces the pool even further. It goes to prove identity

Is this a signature crime? – The same explosive was not used which is the main component of a bomb. Counterargument for this: there were so many characteristics that were similar that it could not have been any other person

Why was it admissible? – The court minimized the unfair prejudice by giving the jury a limiting instruction- rule 105 The court thought that prejudice was minimal because the earlier bomb did not kill anyone so less likely to convict based on emotion

What is the standard of review? – Abuse of discretion. This is a super low standard Signature Crimes Principles: Identity must be at issue Need relatively strong evidence that the defendant committed the first crime Sufficiently idiosyncratic: Highly distinctive quality or Conjunction of several identifying characteristics Single prosaic commonality is insufficient

United States v. Stevens Facts: Jane Smith and Tony McCormack were sitting in a bus shelter; a man came up and drew a gun – demanded man’s wallet and frisked him; patted down woman and sexually assaulted her. Gunman then told them to leave bus shelter and run across an adjacent field – 2 ran to nearest building and called military police; who took them to the station. McCormack and Smith identified Smith in a lineup separately – and McCormack identified Stevens in a photo beforehand.

Issue: Whether evidence of other acts is admissible to prove that the defendant did not commit the crime?

Held: MO is admissible

Reasoning: Reverse 404(b) Steven wanted to introduce the testimony of Mitchell, the victim of a similar crime, under Rule 404(b) to prove his theory that McCormack and Smith misidentified him. Three days after McCormack and Smith were assaulted, Mitchell, a black man, was robbed at gun point

by another black man who resembled Smith and McCormack’s attacker. But Mitchell did not identify him as his attacker. Steven is trying to prove that one person very likely committed both and because Stevens was exonerated by Mitchell, a black man whose identification is arguably more reliable than that of the two white victims, Stevens was not that person.

The similarities between the robberies are significant. Both crimes took place within a few hundred yards of one another, were armed robberies, involved a handgun, occurred between 9:30pm-10:30pm, were perpetrated on military personnel and involved a black assailant who was described similarly by the victims.

These similarities are undoubtedly probative that the same individual committed both offences.

Steven thus tries to use the reverse 404(b) where you can use other crime evidence to exonerate defendants.

The court questioned whether this evidence is sufficiently relevant to outweigh countervailing considerations such as undue consumption of time and confusion of the issues. The court held that simple relevance to guilt or innocence should suffice as the standard of admissibility and the prejudice to the defendant is no longer a factor.

The court held that the district court imposed too stringent a standard of similarity on Stevens and that the government unnecessarily compartmentalized the permissible uses of reverse 404(b) evidence.

The court held that the most persuasive treatment of reverse 404(b) evidence is found in Garfole where the New Jersey Supreme Court observed that the lower standard of similarity should govern reverse 404(b) evidence because prejudice to the defendant is not a factor.

The court concludes that a defendant may introduce reverse 404(b) evidence so long as its probative value under rule 401 is not substantially outweighed by rule 403 considerations. In addition, the defendant need not show that there has been more than one similar crime, that he has been misidentified as the assailant in another crime or that the other crime was sufficiently similar to be called a ‘signature’ crime in order to introduce other crimes

evidence. These criteria, although relevant to measuring the probative value of the defendant’s proffer, should not be erected as absolute barriers to its admission. Rather the defendant must demonstrate that the reverse 404(b) evidence has a tendency to negate his guilt and that it passes the 403 balancing test.

The court held that while they concede that the two attacks are by no means ‘signature’ crimes, this is simply not the test. All that is necessary is that the evidence satisfy the relevancy standard of rule 401. Having determined that Steven’s reverse 404(b) proffer was relevant under rule 401 we turn now to the countervailing rule 403 considerations.

Class Notes: Reverse 404(b) Admissibility test: Evidence ha...