EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, December 10, 2013

Why Jordan Graham's Prior Threats Will be Inadmissible at Her Trial For Pushing Her Husband Off a Cliff

Many of you have probably heard about the case of Jordan Graham. She's the Montana woman charged with murder after shoving her new husband off a cliff at the Glacier National Park last summer. Prosecutors allege that the act was malicious; Graham counters that she instinctively pushed him away when he grabbed her arm during an argument. Recently, Donald Molloy, the federal judge presiding over the case, ruled that the prosecution would not be able to introduce evidence that Graham allegedly threatened to kill her mother and stepfather a month before her husband's fatal fall. Why? The answer can be found in the intersection between two rules of evidence.

Federal Rule of Evidence 801(d)(2)(A) indicates that

A statement that meets the following conditions is not hearsay:....

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity....

Certainly Graham's alleged threats would qualify for admission under this Rule because (1) they would be offered against her by an opposing party (the prosecution); and (2) they were made by the party (the criminal defendant) in an individual capacity.

But, as the Ninth Circuit noted in United States v. O'Connor, 737 F.2d 814 (9th Cir. 1984), even statements that qualify for admission under Rule 801(d)(2)(A) are inadmissible if they contain impermissible character evidence under Federal Rule of Evidence 404. Rule 404(b) reads as follows:

(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:  

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Under this Rule, the judge's reasoning becomes apparent. The prosecution was trying to use Graham's threats to prove her violent tendencies, which is prohibited under Rule 404(b)(1). Ostensibly, the prosecution responded that it wanted to introduce the threats to prove "lack of accident," and such a claim might have been fruitful if Graham were charged with killing her mother or stepfather. But, in a prosecution for killing her husband, the threats would have had no relevance except as propensity character evidence.



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I disagree that "the threats would have had no relevance except as propensity character evidence" but I agree that the evidence should not be admitted. The better basis for exclusion is that even if the evidence has some probative value it would still be outweighed by its prejudicial effect. Namely, the simple fact that she threatened some other person at some other point in time under some other set of circumstances doesn't tell one much about her state of mind when she was on the cliff, while mentioning it to the jury would undoubtedly be inflammatory.

Posted by: Daniel | Dec 11, 2013 10:17:25 PM

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