CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, February 4, 2013

Graham on "Other Crimes" Evidence

Graham michaelMichael H. Graham (University of Miami - School of Law) has posted two articles on "other crimes" evidence under Federal Rule of Evidence 404(b) on SSRN. The first is Other Crimes, Wrongs, or Culpable Acts, Fed.R.Evid. 404(B): 'Defining' a New Paradigm (Criminal Law Bulletin, Vol. 47, p. 998, 2011). Here is the abstract:

Commentators addressing the incredible theoretical and functional difficulties surrounding the long accepted general principal that while other crimes, wrongs, or culpable acts are not admissible to prove the character of a person in order to show action in conformity therewith, such evidence may “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” Fed.R.Evid. 404(b), have more or less thrown in the towel reverting to the bromide that fundamentally it all is a question of proper application of discretionary balancing, basically some version or another of Fed.R.Evid. 403. Such an approach is recommended by those adopting a totally theoretical approach to the enterprise as well not surprisingly also by the two commentators, Imwinkelried and Leonard, who have authored treatises devoted solely to the subject.

Application of discretionary balancing approach represented by Fed.R.Evid 403 is and has also been the principle approach adopted by trial and appellate courts alike.

The result is the hodgepodge of decisions which the commentators bemoan while arguing for what is in fact limited and insufficient reform. The lack of clarity, consistency, predictable and very importantly acceptability as a matter of overall policy that results from the balancing approach of Fed.R.Evid. 403 with all of its common law subplots and nuances, in fact led to the enactment in the 1994 of Fed.R.Evid. 413 and 414. Rules 413 and 414 more or less made fully admissible evidence of the defendant’s commission of another offense or offenses of sexual assault and child molestation in spite of the continued theoretical applicability of the Rule 403 limiting balancing approach.

Further complicating rational analysis of admissibility of other crimes, wrongs, or culpable acts for another purpose is the lack of clarity and consistency along with the incredible flexibility and breadth as to the scope of the “other purposes” in fact listed in Rule 404(b), in particular motive, intent, and of course plan, sometimes referred to as common course or scheme.

What is needed is a fresh approach to the admissibility of other crimes, wrongs, or culpable acts evidence employing specific narrow analytically distinct and sound definitions with respect to several of the most commonly employed listed “other purposes.” In addition, what is needed is a clear recognition that in practice the subject matter of the other crimes, wrongs, or culpable acts evidence critically affects admissibility, such as domestic violence, sexual battery, child molestation, possession of recently stolen property, while in other situations other factors, such as same victim, may be in fact be controlling — controlling in the sense of making the other crimes, wrongs, or culpable acts evidence almost inevitably admissibility. A fresh approach should also contain detailed provisions dealing with burden of proof, notice, and distinguishing intrinsic from extrinsic evidence amongst others.

“Defining” into a new paradigm clearly breaks with traditional academic rhetoric. “Defining” into a new paradigm, it is suggested, stands the best chance of preserving the basic underlying common law principles as reflected in Michelson supra and Fed.R.Evid. 404(b), while facilitating more consistent, rational, predictable decisions with respect to the admissibility of other crimes, wrongs, or culpable acts evidence. Finally, clarity in definition accompanied by recognition that certain other crimes, wrongs, or culpable acts evidence are almost certainly going to be admitted will foster a more stringent approach to admissibility of other crimes, wrongs, or culpable acts evidence in those areas where unwarranted erosion of the general prohibition against character evidence for conformity has been taking place such as has occurred with respect to other crimes, wrongs, or culpable acts comprising merely unlinked plan evidence.

The second is Reconciling Inextricably Intertwined/Intricately Related Other Crimes, Wrongs, or Culpable Acts Evidence with Fed.R.Evid. 404(B): Don't Throw the Baby Out With the Bath Water (Criminal Law Bulletin, Vol. 47, p. 1258, 2011). Here is the abstract:

The concept of “inextricably intertwined/intricately related” has been given such universal recognition in the law of evidence for good reason. Other crimes, wrongs, or culpable acts sufficiently connected to the criminal event forming the basis of the prosecution should be admissible in evidence without the requirement of notice, enhanced burden of proof, limiting instructions, along with a real life realistic application of Rule 403. The prosecution should be able to present a cohesive, complete and comprehensible story of the events including crimes, wrongs, or acts other than those charged where closely linked in point of time and space to the criminal event free from any and all of the foregoing requirements. Retention of the concept of “inextricably intertwined/intricately related” maintains the proper balance with respect to disclosure between prosecution and defense.

The problem with “inextricably intertwined/intricately related” correctly perceived and discussed recently by both the Seventh and Third Circuits is its unacceptable breadth as applied in practice. The approach that should be taken is not the abandonment of the concept of “inextricably intertwined/intricately related”, but its reformation making “inextricably intertwined/intricately related” solely applicable in the areas in which it properly belongs. The Third Circuit saw this need in Green preferring the term “intrinsic” defined as either “directly proves” the charged offense or “uncharged acts performed contemporaneously with the charged crime if they facilitate the commission of the charged crime.” It is suggested that neither “contemporaneous” nor “facilitate” is broad enough to capture the utility that should be captured by a reformulated “inextricably intertwined/intricately related”. “Contemporaneous” is too rigid a time frame. Moreover, many other crimes, wrongs or culpable acts necessary to complete the story do not “facilitate” the charged crime but are rather ancillary.

The definition of “inextricably intertwined” should focus partially upon scope, not solely upon purpose. Prior focus solely on the purpose of “inextricably intertwined” lead to its unwarranted expansive breadth and lack of discriminating application rightly criticized in both the Seventh and Third Court opinions. The scope of “inextricably intertwined” being suggested is “closely linked in point of time and space to the criminal event”. The purpose of “inextricably intertwined” evidence is to complete the story, fill a chronological gap or conceptual void, or is so blended or connected that it incidentally involves or explains the circumstances surrounding the charged offense. “Inextricably intertwined” evidence along with direct evidence of the charged offense is intrinsic evidence not subject to Fed.R.Evid. 404(b) notice, limiting instruction, burden of proof requirements, and real application of Fed.R.Evid. 403. On the other hand, “background/context” evidence, i.e., evidence offered to show relationship, chronology, history, or mutual trust, is Fed.R.Evid. 404(b) evidence subject to each and every one of the foregoing requirements.

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