Tuesday, August 19, 2014
Inextricably Intertwined: Why Michael Brown's Strong Arm Robbery Would Likely be Admissible at a Trial Against Darren Wilson
Ken White has written an interesting post at Popehat and Paul Cassell has written an interesting post at The Volokh Conspiracy addressing the issue of whether the alleged strong arm robbery allegedly committed by Michael Brown before his fatal encounter with Ferguson Police Officer Darren Wilson would be admissible at trial. White cites to Federal Rule of Evidence 404(b), which allows for the admission of other crimes, wrongs, or other acts to prove permissible purposes such as motive and intent. Ultimately, however, White says that the admissibility of the strong arm robbery is a coin flip decision because the judge could still exclude such evidence under Federal Rule of Evidence 403, which allows a judge to exclude evidence if its probative value is substantially outweighed by dangers such as the danger of unfair prejudice.
Cassell, meanwhile, thinks that Rule 403 is less of an impediment to admissibility given the strong(ish) probative value of the prior crime. He also cites to Federal Rule of Evidence 404(a)(2)(B), which allows the defendant to present evidence of the victim's character for a pertinent trait. It is important to note, though, that this Rule would only apply in a criminal case and that, pursuant to Federal Rule of Evidence 405(a), it would only allow for the admission (on direct examination) of opinion and reputation testimony, not specific act testimony.
The focus of both of the aforementioned posts is on the admissibility of such evidence at a case governed by the Federal Rules of Evidence, and I think that I have one major thing to add to the dialogue. I also thought that I would add to the discourse by posting about admissibility under the Missouri Rules of Evidence. But here's the thing: There are no Missouri Rules of Evidence.
Let's assume that Brown's family brings a state wrongful death action against Officer Wilson. Missouri is one of the few states that does not have codified rules of evidence. What this means is that Missouri in essence operates like a common law jurisdiction with regard to evidentiary standards; as such, the Supreme Court of Missouri is free to change Missouri evidence law with the stroke of the pen as a case reaches its desk. Earlier this month, for instance, my co-blogger Jeff Bellin wrote about the Supreme Court of Missouri abolishing the "corroboration rule" and the "destructive contradictions" doctrines in Missouri v. Porter. This begs the question of whether codified rules of evidence are necessary, a question addressed by my other co-blogger Ben Trachtenberg in this post.
That said, despite the lack of codified rules of evidence in Missouri, Missouri courts have spoken with a pretty clear voice on the admissibility of character evidence. The first mention of Rule 404(b) in Missouri precedent seems to be in State v. Powell, 684 S.W.2d 514 (Mo.App. 1984).
The general rule provides that evidence of the commission of separate and distinct crimes is inadmissible unless it has a legitimate tendency to establish that the defendant is guilty of the crime of which he is charged. Such evidence is admissible to prove the crime charged when it tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other, or the identity of the person charged with the commission of the crime on trial. State v. Shaw, 636 S.W.2d 667 (Mo.Banc 1982); State v. Jones, 652 S.W.2d 223 (Mo.App.1983); Missouri Evidence Restated Sec. 404(b). It has been recognized that caution must be exercised with respect to the admission of this type of evidence and that it should be subjected to rigid scrutiny.
As you can see from this block quote, Missouri has a book known as Missouri Evidence Restated, which describes where Missouri precedent stands with regard to evidence issues. And, as you can also see from the reference to "Sec. 404(b)," Missouri seemingly applies something approximating federal law. This is corroborated by the fact that the next case referencing Rule 404(b) is State v. Rose, 727 S.W.2d 919 (Mo.App. 1987), in which the court explicitly cites to Federal Rule of Evidence 404(b).
So, it's pretty safe to say that the admission of evidence shouldn't vary based upon the operation of Missouri or federal law: In either case, the principles contained in Federal Rule of Evidence 404(b) should apply. Or maybe not.
Take a look at the following excerpt from United States v. Nektalov, 325 F.Supp.2d 367 (S.D.N.Y. 2007):
It is well established in the Second Circuit that “evidence of uncharged criminal activity is not considered other crimes evidence under Fed.R.Evid. 404(b) if it arose out of the same transaction or series of transactions as the charged offense, if it is inextricably intertwined with the evidence regarding the charged offense, or if it is necessary to complete the story of the crime on trial.” United States v. Carboni, 204 F.3d 39, 44 (2d Cir.2000) (quoting United States v. Gonzalez, 110 F.3d 936, 942 (2d Cir.1997)). Because the proffered testimony relates to similar transactions with the same CW prior to the charged conspiracy, there is a strong argument that the evidence arises from the same series of transactions as, and is necessary to complete the story of, the charged conduct. Compare Gonzalez, 110 F.3d at 941–42 (where defendants were charged with firearms offenses resulting from an armed encounter with a police officer, evidence that defendants attempted to burglarize a house in the same neighborhood just prior to encountering the police officer admissible to show motive and background); United States v. Towne, 870 F.2d 880, 886 (2d Cir.1989) (Pierce, J.) (finding that defendant's possession of a handgun on days other than the single date specifically charged in the indictment was not “other crimes” evidence within the meaning of 404(b) because the “continuous possession of the same gun does not amount to a series of crimes, but rather constitutes a single offense”); United States v. Chen Xiang, No. S1 02 Cr. 271(RCC), 2003 WL 21180400 at *3 (S.D.N.Y. May 20, 2003) (Casey, J.) (prior robberies similar to charged conduct that were either first criminal acts engaged in by defendants with cooperating witnesses or robberies that immediately preceded charged robberies and conspiracy held admissible to show background); with United States v. Levy, 731 F.2d 997, 1001–1004 (2d Cir.1984) (finding trial court erred in admitting evidence of an uncharged sale of heroin by defendant, which occurred the same day as the charged sale, as intrinsic evidence without conducting a 404(b) analysis); United States v. Newton, No. S1 01 Cr. 635 (CSH), 2002 WL 230964 at *2–3 (S.D.N.Y. Feb. 14, 2002) (Haight, J.) (prior false visa referrals issued by defendant DEA agent had no direct involvement or crucial connection to the charged false referrals and therefore would be considered under “other acts” analysis of Rule 404(b)) (emphasis added).
This "inextricably intertwined" language is used not only in the Second Circuit, but also in the Eighth Circuit, where Missouri is located. See, e.g., United States v. O'Dell, 204 F.3d 829, 833 (8th Cir. 2000). And what this means is that it is exceedingly unlikely that a judge would exclude evidence of the strong arm robbery. Such evidence wouldn't even have to go through a Rule 404(b) analysis, and I don't think that I've ever come across a case in which a court deemed a prior "inextricably intertwined" crime inadmissible under Rule 403 (likely because such evidence is thought to have strong probative value.