EvidenceProf Blog

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

Sunday, December 27, 2015

"Making a Murderer" and the "Legitimate Tendency" Test for Admitting Evidence of Alternate Suspects

In a prior post, I talked about how the Steven Avery case from "Making a Murderer" was one of the cases that led the ABA to amend its Model Rules of Professional Conduct to include a section entitled, "Special Responsibilities of a Prosecutor." In the comments to that post, a reader asked about the (in)ability of Avery to present evidence of possible alternate suspects. I still haven't watched "Making a Murderer," but the question of whether and when a defendant can present evidence of alternate suspects is an important one. In this post, I will look at the Wisconsin test.

In State v. Denny, 357 N.W.2d 12 (Wis.App. 1984), Kent Denny was charged with the first-degree murder of Christopher Mohr based in large part on his own statements.

Part of Kent Denny's theory of the case was that he was not the perpetrator of the crime and his inculpatory statements were due to his proclivity for storytelling. He claim[ed] he had no motive to murder Mohr but others did. Denny attempted to present evidence by means of an offer of proof to support his theory that others had the motive to kill Mohr. At the same time, Denny sought to prove that he had a reputation as a liar, which would explain his inculpatory statements. The trial court refused to allow Denny to present evidence suggesting that others might have had a motive, ruling it irrelevant

After he was convicted, Denny appealed, claiming that the trial court erred by precluding this evidence. In answering this question of first impression in Wisconsin, the Court of Appeals initially cited to People v. Green, a California case which held that

It is settled...that evidence that a third person had a motive to commit the crime with which the defendant is charged is inadmissible if it simply affords a possible ground of suspicion against such person; rather, it must be coupled with substantial evidence tending to directly connect that person with the actual commission of the offense....The rule is designed to place reasonable limits on the trial of collateral issues...and to avoid undue prejudice to the People from unsupported jury speculation as to the guilt of other suspects.... (emphasis added).

The Court of Appeals of Wisconsin agreed with this general principle and

disagree[d] only with the Green court's conclusion that such evidence must be substantial. We perceive this to be too strict a standard for the admissibility of such evidence and conflicts with our supreme court's pronouncements on the fundamental standards of relevancy.

As a result, the Denny court cited to the United States Supreme Court's opinion in Alexander v. United States, concluding that

In that case, the United States Supreme Court fashioned the "legitimate tendency" test. In other words, there must be a "legitimate tendency" that the third person could have committed the crime....We believe that to show "legitimate tendency," a defendant should not be required to establish the guilt of third persons with that degree of certainty requisite to sustain a conviction in order for this type of evidence to be admitted. On the other hand, evidence that simply affords a possible ground of suspicion against another person should not be admissible. Otherwise, a defendant could conceivably produce evidence tending to show that hundreds of other persons had some motive or animus against the deceased—degenerating the proceedings into a trial of collateral issues. The "legitimate tendency" test asks whether the proferred evidence is so remote in time, place or circumstances that a direct connection cannot be made between the third person and the crime.

In other words, a defendant does not need to make a proffer of substantial evidence tying an alternate suspect to the crime charged; he merely needs to make a proffer of evidence creating a "legitimate tendency" of such an association. As the Denny court went on to note,

as long as motive and opportunity have been shown and as long as there is also some evidence to directly connect a third person to the crime charged which is not remote in time, place or circumstances, the evidence should be admissible. By illustration, where it is shown that a third person not only had the motive and opportunity to commit the crime but also was placed in such proximity to the crime as to show he may have been the guilty party, the evidence would be admissible

Even under this more liberal test, which the Supreme Court of Wisconsin has since adopted, the court found that Denny's muster didn't cut the mustard, concluding that

Denny's offer of proof was deficient. One proposed witness would have testified that Mohr "may have gotten into trouble with...a big drug dealer." There is neither motive nor opportunity shown here much less a direct connection between the drug dealer and the crime. This same proposed witness would also have testified that Mohr owed one Gary Peterson the sum of $130. Even assuming motive has been established, neither opportunity nor a direct connection to the crime was established. A second proposed witness would have testified that Mohr "may have had an enemy" in Bill Cudahy because Cudahy gave Mohr a shotgun in exchange for a controlled substance. Mohr sold the shotgun, allegedly making Cudahy angry. While motive has been established, no evidence of either opportunity or direct connection to the crime was proffered. We conclude that the trial court did not abuse its discretion in refusing to admit this testimony.



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Thanks for the answer!!! It makes sense, for the most part; there is the potential for implicating innocent people in an attempt to provide "just any" alternate suspect. In Avery's case, as in Adnan's, the streamlined vision of the police seems suspicious, and with Avery's civil suit about to be awarded, one cannot help but question the motive of those who were about to have to pay out---if not in the actual commission of the crime, at least in the alleged "framing" angle, as his lawyers had hoped to argue in his defense.

Posted by: Becki | Dec 27, 2015 2:42:59 PM

In the Avery case, it would seem that Bobby Dassey, Tadych, and Steven's two brothers had opportunity. They were on the premises at the time Halbach was there, the knew the grounds and they had a history of abusing women. Seems to me that would pass the test.

Posted by: John | Dec 27, 2015 4:53:00 PM

The appeal that Avery made argued that Denny did not apply. The appelate court responded in numerous ways, but one was this: "¶50 In reviewing Avery’s postconviction motion, the trial court noted that the proffered evidence might have been relevant as to opportunity, or more specifically proximity, but not probative given the lack of any direct or indirect motive to harm Halbach to support it. We agree." I think that is totally unfair. The individuals that Avery cited in the appeal could have had as much motive as he (Avery) was alleged to have had. I think the trial judge erred in not allowing the defense to introduce these suspects. Add to that the fact that the police never really did their own investigation of these people. Perhaps if they had, they would have found some physical evidence linking them to Halbech. And, what if they had found physical evidence? Would it still be excluded for lack of motive? The whole thing is circular and taken as a whole, deprived Avery of a fair trial. The police assumed it was him from the beginning, so no real serious investigation was done on anyone else. So, then you go to trial and, of course, there is not physical evidence linking others because they were never investigated. And, you cannot even cast any suspicion on them at the trial, even though several were in complete proximity of the crime scene.

Posted by: John | Dec 27, 2015 5:48:02 PM

Hi Colin. I am currently watching Making A Murderer, and I find it so disturbing (have watched through episode 5). I wish you could watch so you could comment. How the police, DA and even the court appointed lawyer manipulated Steven's nephew Brendan is, if not criminal, reprehensible.

Posted by: Peggy | Dec 29, 2015 6:13:10 AM

I'm talking about just the motive part.
That is unique to Wisconsin.
The word motive doesn't even appear in Alexander v US.
Avery's appeal was specifically strict down because there was no evidence of the motive.

You do not have to prove motive to get a murder conviction.
Avery had to show motive to show someone else might have done it. That's patently unfair. It's also unique to Wisconsin. I literally have no clue why Wisconsin's appellant court put that in.

It appears nowhere here


What's more distressing is the US v Alexander court didn't reversed on those grounds. That didn't even decide the issue. How do we know? THEY SAID IT.

"But in the view we take of the next assignment we find it unnecessary to determine whether there was such error in ruling out this testimony as to require a reversal."

This "rule" is pure BS at was literally made out of whole cloth.

How are you suppose to prove motive when an unknown party commits a murder and your blamed?
Answer you can't.

Posted by: indio007 | Jan 30, 2016 3:12:58 PM

The Confession Tapes touched on this issue in a number of episodes. It would seem the problem with this kind of legal provision is that the police seem to stop investigating other potential suspects once they feel they "have their guy", hence no evidence of means, motive, or opportunity by anyone else. I initially thought this was a zealous oversight by investigators wishing to close a case but now I wonder if it is not an oversight, but foresight to prevent this kind of defense later.

Posted by: Mk3000 | Jul 8, 2019 12:58:25 AM

I wish misconduct against the accused in order to stack the deck against defendants wasnt so seemingly ubiquitous across the country, with police holding eventual convictions in mind from second 1 of every investigation. Because of this, the inclination not to explore any other avenue except the one you expect to eventually pursue stops police from Investigating other Suspects or leads, at best. It leads to outright misconduct and false evidence at it's worst.

It all makes things difficult even when they actually have the guilty party. While I don't think Brendan Dassey had anything to do with it, I'm no where near convinced the same is true of his uncle unfortunately. And as a result of the blatant misconduct engaged in by the police and prosector, it's now really difficult to parse out whether the evidence that remains can be trusted, because the clearly falsified evidence hasn't been acknowledged and come clean on. It's a lot like with OJ Simpson--the guy is so likely guilty, but I can see where a jury was coming from acquitting him based on the excessive misconduct.

Maybe the police should just run an honest investigation from the start with the knowledge that anyone who is actually guilty will eventually be shown to be without any cheating necessary to stack the deck in the states favor by the investigators, no?

Posted by: Paul | Jul 22, 2019 4:55:23 AM

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