"Money or Death"


Charge: robbery of the First National Bank in City A on June 1. Modus operandi: handing the teller a note with a death threat on it that says, "Money or death: The choice is yours," accompanied by pictures of a dead body under the word "death" and a live, smiling person under the word "money." At trial the state offers to prove through the teller of the First Federal Bank in City B that on February 1 he was robbed in the same manner by D--that is, that he was handed a deposit slip with the very same death threat written on it. The state also offers several other bank tellers from different banks to testify similarly.

D objects to the tellers' testimony. What ruling and why?


Evidence establishing a distinctive modus operandi may be admitted for the purpose of showing identity even though it also shows a criminal character.

Evidence of the prior crime is relevant to show that it was the defendant who committed the robbery being tried. The defendant's modus operandi is so distinctive that it marks his work like a signature (like the mark of Zorro). Because the evidence bears on identity without any logical necessity either to draw a conclusion about the defendant's character or to reason from his character to a conclusion that he acted in conformity therewith, the evidence is not barred by the propensity rule.

Whether the evidence passes the "second step" admissibility barrier of Rule 403 is a tougher question. What if the defendant is not contesting the issue of identity? Should the prosecution be prevented from using such evidence until the defendant makes clear that he is disputing identification? What if the defendant has never been convicted of the previous crime or has been tried for the previous crime and acquitted? Should there be some minimum standard of proof for showing that the defendant did in fact commit the previous crime? Should evidence relating to crimes for which the defendant has been acquitted be barred altogether? This issue is discussed in Huddleston and Dowling, below, but first we must examine the question of how probative the proof of identity must be before it can be accepted as proof of a distinctive modus operandi.

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