Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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A. The Propensity Rule (174)

People v. Zackowitz, 254 N.Y.192,172 N.E. 466 (1930)(178)

Judge Cardozo advances two grounds in support of the majority opinion. First, he asserts that the propensity rule was violated by the introduction of evidence of the guns hidden in the defendant's radio. Cardozo overstates the case here, arguing that the evidence could only have been relevant to show Zackowitz's bad character. He says:

ownership of the weapons, if it has any relevance at all, has relevance only as indicating a general disposition to make use of them thereafter, and a general disposition to make use of them thereafter is without relevance except as indicating a "desperate type of criminal," a criminal affected with a murderous propensity.

Pound, in dissent, points out correctly that the evidence of the guns is relevant for a purpose other than showing propensity, namely to show that Zackowitz made a careful selection of the most appropriate weapon from his arsenal, thus showing a cool and premeditating state of mind. Suppose, for example, that at the moment of making the selection, Zackowitz had been heard to say, "This is the best possible gun to do this killing with." The relevance of such a statement to the defendant's state of mind would be beyond question. Pound's point is that the circumstantial evidence of the defendant making a selection of weapon goes to the same issue.

Judge Cardozo's second ground is stronger, namely that the prosecutor in fact introduced the evidence not for the purpose articulated by Pound, but for the purpose of showing that Zackowitz was a "desperate type of criminal." Cardozo asserts, moreover, that the prosecutor used the evidence for this purpose in arguing the case to the jury.

On this second ground, Pound simply takes a different view of the record (one suspects an overgenerous view). He asserts that the defendant was presented to the jury "not as a man of a dangerous disposition in general, but as one who, having an opportunity to select a weapon to carry out his threats, proceeded to do so." Thus the difference between the majority and the dissent lies more in the sympathy toward defense and prosecution with which the judges approach the record than in differences about the basic evidentiary principle.

If this case were to be analyzed under FRE 404(a) and 404(b) then the evidence could properly have been admitted to show the defendant's premeditating state of mind, which is akin to Rule 404(b)'s absence of mistake or accident. Rule 404(b)'s examples are not exhaustive, but are merely illustrative of the general principle of Rule 404(a)(1). If admitted to prove defendant's state of mind at the time, the use of the evidence would then have to be limited to that purpose.

Further discussion:

FRE 404(a) states the basic propensity rule. It is a limited rule of exclusion. It bars a particular chain of inference. The prohibited linkage is (1) evidence to prove character; (2) then character to prove some material issue. Evidence is not barred by the propensity rule if the evidence is relevant to a material issue in a way that does not require an inferential connection through character.

FRE 404(b) simply restates the basic rule of 404(a) and gives some illustrations of what is not covered. As a matter of analysis, FRE 404(b) is superfluous. The kinds of evidence it describes, used for the purpose it describes, is relevant under FRE 401, admissible under FRE 402 when excluded by FRE 403 or some other rule of exclusion, and not excluded by 404(a). FRE 404(b) adds nothing except clarification. (Some clarification!)

Illustrations of evidence that incidentally says something about the defendant's character but which is admissible nonetheless because it is independently relevant to prove a material issue include evidence of:

(a) theft of auto used in a later armed robbery to show preparation and design;

(b) distinctive device or modus operandi to show identity of perpetrator;

(c) suspect in robbery kills arresting officer to show motive;

(d) prior murders to show absence of mistake or accident;

(e) selling single parts of a large batch of narcotics to show common scheme or plan;

(f) prior assault and battery of wife introduced at murder trial to show intent;

(g) prior theft from safe to show opportunity or knowledge;

(h) "res gestae" or need to tell the complete story as an inseparable part of the primary crime itself;

(i) propensity for illicit sexual relations to show identity or intent .

Problem - A Return to the Scene of the Crime (180)

The point:

Evidence that tends to establish a criminal propensity but which is independently relevant to prove a material fact, such as knowledge, is admissible for that limited permissible purpose under the doctrine of limited admissibility.

Answer and Analysis:

The evidence of the prior crime is directly relevant to show the defendant's knowledge of the location and the combination of the safe. The evidence may also show something about the defendant's character, but this is not necessary to the inference about knowledge. The chain of inference to knowledge does not run through character. The evidence is, therefore, not made inadmissible by FRE 404(a).

This problem also illustrates the interaction between Rule 403 and Rule 404. Some would say that the evidence is affirmatively admissible under FRE 404(b). FRE 404(b), however, is not a rule of admissibility, but merely a statement elaborating what is not made inadmissible by FRE 404(a). To be admissible the evidence must pass the relevance tests of Rules 401 and 403. This is the logic which produces the so-called "two step" analysis. See United States v. Trenkler (text at p. 186) and the court's discussion in United States v. Beechum (text at p. __________). The first step is to determine if the evidence is barred by the propensity rule; if not, then the second step is to determine whether the evidence is admissible under Rule 403.

A Rule 105 limiting instruction is the mechanism used to police the use of evidence admissible for one purpose, but not for another. In this case the limiting instruction would go something like this: "The defendant is on trial only for the crime charged. The jury may consider the evidence offered only as showing knowledge of the location and combination of the safe, and not for the fact that the defendant commits criminal acts, or that the defendant may have broken into this safe before. You have to decide whether the defendant committed the specific crime charged on the day in question, not other crimes on other days."

From a tactical standpoint, the defendant might not want the instruction to mention what is prohibited for fear of suggesting that very use to the jury. The general efficacy of limiting instructions -- which is a recurring theme in the text -- can usefully be discussed here.

Further discussion:

FRE 404 unnecessarily causes confusion by the backwards way in which it is framed. If it were turned around, so that it said that evidence which tends to prove any material fact is admissible (subject to a FRE 403 balance) unless its sole purpose is to show that the accused has criminal propensity, would be clearer. California's character evidence rule has been read in such a manner:

It is settled in this State that except when it shows merely criminal disposition, evidence which tends logically and by reasonable inference to establish any fact material for the prosecution or to overcome any material fact sought to be proved by the defense, is admissible although it may connect the accused with an offense not included in the charge.

People v. Perez, 65 Cal. 2d 615; 55 Cal. Rptr. 909, 422 P.2d 597 (1967).

Problem - Res Gestae (184)

The point:

Evidence may be admitted when it is necessary to tell the whole story of the events in issue at trial even though the evidence tends to show the commission of other crimes or a criminal character. Such "res gestae" evidence is one example of the non-application of the general propensity rule which is not listed in the illustrations specified by Rule 404(b).

Answer and Analysis:

The evidence of the forged prescription must be admitted so that the jury can understand the facts central to the gun possession charge. Without the evidence, the prosecution's case is virtually unintelligible. The term "res gestae" has been used to describe this "exception" to Rule 404(a), even though there is no explicit mention of it in 404(b).

The first problem was adapted from Carter v. United States, 349 F.2d 77 (8th Cir. 1977), in which the court held that the forged prescription evidence was properly admitted under Rule 404(b) and that limiting instructions were sufficient to guard against undue prejudice.

This second problem was taken from State v. Villavicencio. 95 Ariz. 199, 388 P.2d 245 (1964). In Villavicencio the court found the testimony about the second sale properly admissible under the "res gestae" exception.

Problem - "Money or Death" (185)

The point:

More work on Rule 404(b). As the text states, evidence establishing a distinctive modus operandi may be admitted for the purpose of showing identity even though it also shows a criminal character.

Answer and Analysis:

Whether the evidence passes the admissibility barrier of Rule 403 is a tougher question for two reasons, both of which are explored in the cases following the problem and both of which we would answer in favor of admissibility in the context of the problem. These questions provide a transition from considering the general concept of the propensity rule to specific problems of application. As the text asks:

(1) 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?

(2) 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?

Further discussion:

(1) The admissibility of modus operandi evidence for the purpose of establishing identity is not necessarily dependent upon whether a conviction was obtained from the prior bad act. Rather, similarities and unique or unusual characteristics are most important. For example, in State v. Romero, 634 P.2d 954 (Ariz. 1981) a man was charged with molesting a six year-old girl in front of her Phoenix home. The prosecution was to offer into evidence a breach of the peace citation which Romero had received nine months earlier. In both instances Romero had approached a young boy and young girl in his automobile, asked about the color of their underwear to get their attention, sent the young boy away, then molested the young girl in his car. In both cases, following the molestation Romero drove through the neighborhood again. The Arizona Supreme Court ruled that the unusual similarities justified admitting the evidence of the first case to prove the identity of the molester in the second case.

(2) As discussed after the Trenkler case, an interesting variation on this problem occurs when a defendant attempts to introduce evidence of other similar crimes by someone else to prove that the case on trial is a case of mistaken identity. The Jewett case, text at p. 196, raises this issue. The Colorado Supreme Court has adopted the position that similar offense evidence when introduced by the defendant is subject to a case-by-case test of admissibility. People v. Flowers, 644 P.2d 917 (Colo. 1981). In Flowers defendant was convicted of first degree sexual assault and sought to introduce evidence of nine other sexual assaults in the same locality within five months of his alleged assault. The defendant wanted to offer testimony from detectives that each of the victims was unable to identify the defendant from a line-up as her assailant and to call a forensic serologist to testify that seminal fluid recovered from one of the sexual assault victims excluded the defendant as the assailant. The court upheld the district court's determination that the details of the other crimes were not distinctive enough to represent the "signature" of a single individual, but were features common to most sexual assaults.

As the text states, it is interesting to note the nonsymmetrical application of the Rule 403/404 two-step approach. For example, in Flowers if the semen had matched and the defendant had been positively identified in one of the prior neighborhood assault cases, such evidence would probably have been admitted. The Jewett case, text at p. 199, takes just the opposite nonsymmetrical approach, holding that when the defendant offers evidence of similar crimes or acts for exculpatory purposes, the degree of similarity required is less than when the prosecution offers such evidence, because in the former situation, "prejudice ceases to be factor."

United States v. Trenkler, 61 F. 3rd 45 (1st Cir. 1995) (186)

This case is not only a case where the court approved the admission of a prior instance of similar conduct (bomb-making) as evidence of a "modus operandi", it is also a case where the prosecution was permitted to offer evidence of a computer matching of the incident on trial and the prior incident in an effort to demonstrate their signature-like similarity.

The defendant, Trenkler, had admitted building a bomb for a friend in 1986. This bomb had exploded, but caused little damage. In defendant's trial for building a bomb in 1991 (which had exploded and killed a Boston police officer), evidence of the 1986 bomb was offered and admitted under a theory of Rule 404(b) "special relevance" as evidence of a modus operandi.

A reading of the opinion discloses how the selection and characterization of details of both events can support, or undermine an impression of similarity. The government was permitted to show how various attributes of both bombs were analyzed by computer to determine the likelihood of a match. The identifying details as described in the opinion may just be selection of certain commonplace features, characterizing them in particular ways, and then comparing the characterizations with characterizations of other details from other events.

An important point is that the standard of distinctiveness does not require uniqueness or absolute similarity of offenses. The trial judge only need make the judgment that the prior offenses are relevant on the question of identity. The Danzev court is content with "a close parallel." See People v. Perez. 65 Cal. 2d 615, 55 Cal. Rptr. 909, 422 P.2d 597 (1967). It also makes no difference that some of the prior offenses occurred after the time of occurrence of the crime being tried. Note that one of the offenses admitted against the defendant occurred three months after the offense being tried.

Commonwealth v. Jewett, 393 Mass. 558, 467 N.E.2d 155 (1984) (199)

This case is discussed in connection with the "Money or Death" problem IV-3 above, and provides a good vehicle for exploring the separate considerations of relevancy and prejudice when dealing with similar acts evidence. The prejudice element drops out because the evidence is offered by the defendant for exculpatory purposes, leaving a clear relevancy issue. The discussion can naturally lead to an exploration of the generally "one-way ratchet operation" of the rules regarding character evidence.

Rex v. Smith, 11 Cr. App. R. 229, 84 L.J.K. B. 2153 (1915)(203)

This is the classic case showing lack of accident. Considering each episode in isolation, it is hard to say whether the defendant killed his bride or whether she slipped and fell. But when the same apparent accident occurs repeatedly, the likelihood is that it is being caused to happen. Professor Randolph Jonakait of New York Law School recommends Majoribanks' account of this case in Majoribanks, For the Defense: The Life of Sir Edward Marshall Hall , 311-344 (1981).

For criticism and further examination of the propensity rule, see Kuhns, The Pronensity to Misunderstand the Character of Specific Acts Evidence, 66 IOWA L. REV. 777 (1981); Comment, Federal Rules of Existence -- Rule 4041b) Limit the Admission of Other Crimes Evidence Under an lnclusionary Approach to Cases Where It Is Relevant to an Issue in Dispute, 55 NOTRE DAME LAWYER 574 (1979-80); Krivosha, Lansworth and Pirsch, Relevancy -- the Necessary Element in Using Evidence of Other Crimes, Wrongs or Bad Acts to Convict, 60 NEB. L. REV. 657 (1981).


Tucker v. State, 82 Nev. 127, 412 P.2d 970 (1966)(206)

Tucker was involved in two deaths which occurred under similar circumstances. In both cases any of three explanations was possible: (1) the deceased killed himself accidentally, (2) someone entered the apartment and killed the victim, or (3) Tucker killed him. Considering either death in isolation, it is impossible to conclude which explanation is correct. However, considering both together strongly suggests that the deaths were not accidental nor that a stranger was responsible for both. Would there be any doubt if Tucker had been involved in five such deaths, claiming in each one that he was drunk and awoke to find his friend shot to death?

The Tucker court proceeds as if the prosecution must show that Tucker was responsible for the first killing as a precondition to the relevance of the first death to the second. Arguably, this misconceives the nature of the reasoning that underlies the relevance of the evidence. The point is that one cannot tell whether Tucker was responsible for either killing unless both are considered together. The Tucker court is treating the case as if the prosecution were trying to prove identity with signature quality evidence, when in fact the prosecution was attempting to establish lack of accident. It makes no sense in the context of an offering to show lack of accident to require definitive proof that the earlier events were not accidents.

Huddleston v. United States, 485 U.S. 681 (1988)(208)

This is a watershed case under the federal rules, and it answers many of the questions regarding the quantum of proof necessary to introduce evidence of similar acts that were previously open. The clear answer: similar acts evidence is admissible under Rule 404(b) if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act. This is a very low, but familiar standard, that is generally easy enough to apply: almost everything passes.

The Court reaches this conclusion through a careful textual analysis of Rules 404(b),104(a), and 104(b) as well as a look at the legislative history. Rule 403 still applies, however, after the Rule 404 analysis, and in an important footnote, text at p. 212, the Court states that the strength of the evidence is one of the factors that the trial court may consider when conducting the Rule 403 balancing.

Left open by Huddleston (but anwswered two years later by Dowling was the question of whether evidence of similar crimes for which the accused had been previously acquitted could be admitted. The sequencing of the cases in the text allows exploration of these issues in descending magnitude of certainty about the prior crime, starting with high burdens (e.g., beyond a reasonable doubt; criminal conviction) to clear and convincing to more probable than not, to the Huddleston sufficiency standard, and then, ultimately to the Dowling standard of sufficiency even if acquitted (no double jeopardy bar). This is an interesting intellectual journey that provokes a nice discussion about the difference between admissibility standards and ultimate burdens, proof of facts and double jeopardy considerations.

Dowling v. United States, 493 U.S. 342 (1990) (214)

Dowling resolves the question left open by Huddleston -- neither the double jeopardy nor the due process clause bars the use of evidence offered under Rule 404 of a prior similar act for which the defendant was acquitted. It provides a good vehicle for a discussion about the different policies that motivate the substantive criminal law, constitutional rights, and admissibility questions.

United States v. Beechum, 582 F.2d 998 (5th Cir. 1978) (222)

In teaching this case, we find it useful to ask the following questions:

(1) Could the Government have prosecuted Beechum in two counts, tried jointly: one count For stealing the silver dollar, the second for stealing the Sears credit cards?

(2) Could the prosecution in the trial of Beechum for stealing the silver dollar introduce evidence of the Sears credit cards as part of its casein-chief?

(3) Could Beechum, by testifying only about the silver dollar, avoid cross-examination about the Sears credit cards because such examination would be beyond the scope of the direct examination (FRE 611 (b))?

(4) Could Beechum, having testified about the silver dollar, successfully assert his fifth amendment privilege in response to questions about the Sears credit cards?

(5) Could the prosecution introduce extrinsic proof about the Sears credit cards if Beechum denied any knowledge of them?

All of these questions turn on the basic relevance analysis of the Sears credit cards to the question of whether Beechum knowingly and intentionally stole the silver dollar. If the evidence about the credit cards was relevant to the question of intent, then all the above questions are answered the Government's way.

The relevance of the credit card evidence is based on the kind of inferential logic that was involved in Rex v. Smith. A fact finder s ability to determine what happened with respect to each event is enhanced by considering both together.

It is important to see that the credit card evidence is asserted to be admissible because it relates to Beechum's intent in taking the silver dollar, not because it relates to Beechum's credibility. The credit card evidence does not show that Beechum is a liar unless one first concludes what happened. One could then conclude that Beechum had lied in his version of what happened, but the conclusion is at this point incidental and superfluous.

Judge Goldberg's dissent is artful but overdrawn. His argument that the majority's reading of Rule 404(b) conflicts with the language of Rules 609 and 608 obscures the point that is centrally important: Rule 404 deals with evidence that is directly relevant to what happened; Rules 608 and 609 deal with evidence that relates to the witness's (here the defendant's) character as a truth-teller, and thus only indirectly and circumstantially to what happened. The constraints of Rules 608 and 609 are consistent with and parallel to the constraints of Rule 405 with respect to proof of character evidence to be used circumstantially.

Problem - "A Nice Piece of Change" (233)

The point:

As in Beechum, the evidence in this case goes first to plan, preparation, or modus operandi, and then, second, depending on what you conclude happened, to credibility. This case is harder than Beechum however, because Easerly's M.O. (if one concludes he is perpetrating a scam) involves false testimony in court. Exposing this is very close to exposing him as a liar -- Rule 608/609 material.

Answer and Analysis:

As the note on p. 233 states, this offer of evidence can be approached as either character evidence or evidence of credibility. Viewed as Rule 404 character evidence, the evidence is admissible as evidence of a plan, or modus operandi, similar to the Rex v. Smith evidence. The striking similarity of Easerly's past testimony makes the evidence highly probative. The jury can use this evidence without making any inferences about Easerly's general character, so propensity considerations are a by-product and can be dealt with through limiting instructions. Under the federal rules, this evidence could come in if the court determined under Rule 403 that its probative value was not outweighed by waste of time, confusion or prejudice.

The evidence would, on this theory, be offered to prove what happened on the occasion of the litigated event, and not for the purpose of attacking Easerly's credibility. This would mean that Letwin would be permitted to offer proof of the prior incidents regardless of whether Easerly took the stand, and would be able to prove the prior incidents with extrinsic proof (that is, by offering transcripts of Easerly 's prior testimony and by calling the other real estate men whom Easerly had allegedly bilked). Whether or not the prior incidents should have been admitted on this theory involves a "similar acts" analysis. The judge in the case (unreported) from which the problem and the film were drawn ruled that the evidence of the prior incidents was not admissible on this theory because proof of the prior incidents would be extraordinarily time consuming and would tend to confuse the issues and lead the jury astray.

Testimony about the prior suits could also be properly elicited on cross-examination under FRE 608 to attack the credibility of the witness, subject to the discretion of the trial judge. As one court stated when allowing evidence of prior claims, "[f)ortuitous events of a given sort are less likely to happen repeatedly than once. The fact that a witness has told several stories involving similar fortuitous events tends to create a conflict between his testimony and normal experience." Mintz v Premier Cab Ass'n, Inc, 127 F.2d 744 (1942). The Mintz court cited several other situations where the same type of evidence has been allowed: State v. Roberts, 18 N.M 880, 138 P. 208 (1914) (where a witness furnishing an alibi for a criminal defendant may be asked whether he has furnished other alibis for the same defendant); State v. Lewis, 133 N.C. 653, 45 S.E. 521 (1903) (the victim accusing the defendant of robbing him while the victim was drunk may be asked whether he has made the same charge against other men). Compare Lowenthal v Mortimer 290 P.2d 442 (Cal. Ct. App. 1954) (where the court prohibited questioning about the litigious nature of the plaintiff). As these cases suggest, the discretion vested in the trial judge by FRE 608 should be guided by considerations akin to those involved in the balance under FRE 403.

Rule 608(b) disallows introduction of extrinsic evidence of specific instances of conduct of a witness when attacking credibility. Thus, Easerly's prior allegations might be inquired into on cross-examination, but the transcripts of his prior testimony and the testimony of his other victims could not be introduced. This rule against extrinsic evidence is motivated by a desire to restrict the amount of time spent on issues collateral to the trial at hand. While a trial transcript makes the offer of proof less troublesome since it is unlikely that Easerly would claim he did not make the statements attributed to him, not all cases are so simple. Even in this case, however, there are many potential problems. For example, what if Easerly won some of the prior suits and lost some? Or what if other witnesses corroborated his stories?

A further basis for discussing these questions is the film Easerly v. Letwin, a regular favorite that vividly brings home the operation of these rules and the pitfalls for the unwary trial lawyer.

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