Evidence – Class 5

1. Evidence – Class 5 Rules 404(b); 406; and 412-415

2. Review • Propensity character evidence (a.k.a. circumstantial use of character evidence) is when someone tries to use a character trait (or an act from which one can infer a character trait) for the proposition that because one possesses that character trait, they acted in conformity with it on the occasion in question.

3. Review cont’d • Rule 404(a) governs the limited situations in which character traits may be used for a propensity inference. • Propensity char evid is NOT permissible in civil cases • In criminal cases – def can present char witness to testify about def’s good character trait or her victim’s bad character trait; • After def puts on char witness, the prosecution may rebut with their own char witnesses • POLICY: level the playing field a little by giving the def. access to a type of evid denied to the prosecution; also preventing the prosecution from injecting into the trial the def’s bad char traits for propensity purposes b/c of the highly prejudicial nature of that evidence.

4. Review cont’d • Rule 405 governs the presentation of propensity character witness testimony • Propensity character evidence only comes in via a witness who will testify as to the relevant char trait via opinion or reputation – no specific act testimony is allowed for propensity character witness direct examination testimony • Character witnesses may be cross-examined with specific acts to test the witness’ knowledge

5. Review cont’d • When character is “in issue” - i.e. must prove a particular character trait in order to prove/disprove an element of a claim or defense – the character trait or the act which infers a character trait is admissible b/c it is being offered for a non-propensity purpose (e.g. X does a lot of cocaine to prove she is an unfit mother; Y has a history of molesting children to prove negligent hiring of Y as a day care provider, etc.)

6. Non-propensity character evidence • Sometimes, a particular act (from which a character trait may be inferred) can be relevant to both a propensity and a non-propensity inference. If there is a non-propensity inference, and it passes the 403 test, the act will be allowed into evidence (with a limiting instruction).

7. 404(b) non-propensity inferences from bad acts • 404(b) has a non-exclusive list of non‑propensity inferences that one can make from specific acts ‑ e.g. the acts can be offered to show motive, opportunity, intent, preparation, plan knowledge, identity or absence of mistake • What’s the risk when you let in evidence of other crimes or other bad acts?

8. US v. CARROLL p. 25 • Carroll convicted of armed robbery of a credit union • What is the contested evid

9. Pattern/plan? • What is the propensity inference • State claims the prior robbery was part of a plan. What constitutes a plan for 404(b) purposes;

10. Twisting the facts – argue plan • What if the first bank robbery was 10 years ago; it was the Wachovia headquarter bank; along with money, the robber stole the architectural plans including the burglar alarm system used for Wachovia branches in that city (argue for the gov’t and the defendant)

11. What constitutes a plan • Plan ‑ sometimes called common plan/scheme is most elastic of the exceptions ‑‑ one crime is predicated on the commission of another ‑ e.g. one could set off a bomb to distract police during a robbery; rob bank to get $ to finance major illegal arms transaction – has to really go to showing one crime or act was part of a PLAN to do another crime/bad act

12. Back to Carroll • Gov’t also argued the prior robbery went to show identity (or a pattern which shows identity)(make both sides’ arguments)

13. What if in both cases, the robber looked like this? • How does that • Change the argument?

14. More twists • What if police found marked money from this robbery in the defendant’s apartment ‑ defendant claims that it wasn’t his apartment; but also in the apartment was money from prior robbery which defendant was involved in ‑ at that point, could state introduce fact of prior robbery? (make the argument)

15. Pattern to show identity • Must show a DISTINCTIVE pattern to prove the def’s identity ‑ this is really for signature crimes or signature modus operandi‑ bad acts that are committed in such a way that they really do help prove that the def committed this crime

16. preparation • preparation ‑ this is much like plan – bad acts to show how prepared to commit crime charged ‑ e.g. ‑ it shows purposefulness and negates possibility of accident ‑ (e.g. broke into the architect’s office to get the bank building’s plans); preparation and plan are very similar – with 404(b) non-propensity inferences, don’t need to worry about the label ‑ in fact, the label here isn’t as important as the FACTS that you argue to show why not a propensity reason

18. US v. Potter p. 261 • What’s the contested evidence? • Make both sides’ arguments as to admissibility/inadmissibility • Great example of difference btwn motive/propensity inference btm p. 263

20. US v. Hearst (p. 264) • No question Patty Hearst was involved in the armed robbery for which she was on trial; What was her defense (as stated in defense opening statement & in media)? • What was the contested evidence? • Make both sides’ arguments as to why/why not admissible

21. INTENT • ‑‑ 404(b) if used properly, intent must actually be in issue ‑ must be question of whether def acted maliciously, deliberately, or w/specific intent; or to show that there is not an innocent explanation (not just a general plea/argument of I’m not guilty to a general intent crime.)

22. Intent must be in issue • courts must be sure that intent is actually in issue ‑‑ not in generic way but specifically ‑ e.g. def must be claiming, “I didn’t mean to do it; or I did it but it isn’t what it appears to be, or I wasn’t committing/planning on committing the charged crime; [or it must be a specific intent crime and the other act must be sufficiently similar to show specific intent this time]* [not in slides I emailed but important addition]

23. Common mis-use of 404(b) intent to get in evidence of other crimes • ‑Many courts say if def is claiming she is not guilty, then her intent is in issue. This really defeats the rule and, in my view, wrongly interprets the law ‑ allows an exception to swallow the rule. For our purposes, and hopefully for your purposes if you are ever on the bench, bad acts get in to show intent only when the def affirmatively puts her intent at issue ‑ and she doesn’t put her intent at issue simply by pleading not guilty to a general intent crime!

24. knowledge • Relevant to show expertise & ability to do crime charged; assume def arrested for importing hundreds of counterfeit Prada handbags from China; claims he didn’t know they were counterfeits; would prior conviction for selling counterfeit items from China be admissible?

25. Opportunity • Opportunity: usually this is used to show def had, “access to or presence at the scene of the crime” or the possession of “distinctive or unusual skills or abilities employed in the commission of the crime charged:” (McCormick on Evid) [e.g. previous burglary in office building where defendant had access to the master key]

26. U.S. v. Johnson, 102 F. 3d 214* (simplified version of facts) • Defendant is a felon. Cop sees def carrying semi-automatic weapon under his jacket. Cop chases def into a house; gun is left on the porch. Def charged with being a felon in possession of a firearm. Def claims cop lied – he wasn’t carrying the gun and it wasn’t his gun. At trial, prosecution enters evidence that def is a gang member. What’s the propensity inference? • * Not assigned but good case to illustrate 404(b)

27. 404(b) arguments in Jobson • KNOWLEDGE: gov’t argues gang membership goes to def’s knowledge –court’s response – the guy knows what a gun is and gang membership doesn’t make that more likely; • INTENT: gov’t argues gang membership goes to def’s intent (court’s response – not a specific intent crime – general denial here doesn’t put his intent in issue; • OPPORTUNITY – gov’t argues gang membership goes to opportunity to possess semi-automatic weapon (YOU and neighbor argue both sides)

28. US v. Woods p. 271 • FACTs: Women convicted of murder of her foster child by smothering him ‑ she claims the state failed to prove that the child died due to a criminal act (i.e. failed to prove beyond a reasonable doubt the corpus delecti of murder); • What is the contested evidence?

29. Woods, cont’d • what’s propensity inference? • What’s non‑propensity inference (make gov’ts argu and counter arguments) • What’s holding? • Do you agree w/holding as a matter of : a. Morality; b. Legality

30. Huddleston (not assigned) • deals with how much evid you need to get in other acts/crimes for non‑propensity purpose ‑ how much evid do you need ‑ need only enough evid from which a jury could find def committed the other crimes/bad acts

31. Can you get in prior crime under 404(b) if: • A. acquitted of prior crime? • B. Is evid of arrest alone enough to meet the 404(b) Huddleston threshold?

32. hypo#1 • Defendant gets a brown wrapped package in his post office box. He is arrested b/c the package contains child porn. The def contends he did not know the package contained child porn. May the government introduce evidence showing that the def received child porn at this post office box 3 times in the last year from the same company and wrapped the same way (brown paper package)? Make the arguments for and against the admission of the evidence of receipt of the earlier packages containing child porn.

33. Hypo #2 • In the McVeigh case, the gov’t wants to introduce fact that a few weeks before he bought the material to make the bomb, McVeigh stole a lot of money from an armory. What’s their best argument to get this into evidence?

34. Hypo #3 • John insults Bob’s wife on Saturday; On Sunday, Bob stole a gun from his neighbor’s house; on Monday, Bob shoots John. Bob claims he shot John in the heat of passion during a later argument. Bob is on trial for shooting John. May state get into evidence fact that Bob had stolen a gun from his neighbor’s house on Sunday?

35. Hypo #4 • The defendant has been charged with murdering his wife (a relatively rich woman). May the government introduce evidence that at the time of the murder, the defendant, a prominent and wealthy doctor, was addicted to cocaine?

36. Key to 404(b) – must do more than say the “buzz words” • If you’re claiming it goes for a non-propensity purpose (e.g. motive) you must show how it goes to that purpose. For example, you can’t just say drug habit goes to his motive; must have some evidence to show he had the motive (e.g. financial pressures; fear of public exposure of habit, etc)

37. Hypo #5 • Bob was stopped for smoking marijuana. He was arrested and searched. The search revealed he had a diamond necklace in his pocket. The necklace belonged to his landlady. He was charged with smoking pot and with theft of the necklace. Bob claims that he did not steal the necklace, he found it on the ground and intended to return it to the landlady.

38. Hypo 5 cont’d • A. Is the fact that when searching Bob’s apartment, the landlady found another tenant’s wallet in Bob’s apartment admissible? (Tenant said wallet had been missing for two weeks) • B. What if Bob was only on trial for smoking pot (he didn’t have necklace on him). His defense to the pot charge is that he wasn’t smoking the joint, he had simply picked it up from the ground to see what it was. At that point would fact that another tenant’s wallet was found in Bob’s apartment be admissible?

39. Hypo 6 • In a trial against Arthur Andersen for obstruction of justice (destroying files in the Enron matter) the prosecutor wanted to get into evidence an agreement btwn Andersen and the SEC in 2001 in which Andersen agreed to pay a 7 million dollar fine to settle SEC allegations that it issued false and misleading reports on behalf of Waste Management Inc. The settlement included an agreement from Andersen that it would not make the same mistake again or it would risk being barred from practice. Anderson also agreed to pay $110 million in 2000 to Sunbeam corp shareholders to settle a fraud lawsuit alleging the firm helped the appliance maker inflate profits from 1997‑1998 (Sunbeam filed for bankruptcy in Feb. 2001). The gov’t wants to get into evid both the settlement with the SEC and the settlement w/Sunbeam Corp. Make the government’s and Andersen’s arguments.

40. #7 • Mayor Bill Campbell was indicted and tried for taking illegal campaign contributions and accepting bribes. At this trial, the government sought to elicit testimony from a former mistress that she had been lavished with expensive gifts and had accompanied Campbell on gambling trips. Make Campbell’s argument as to why this evidence is inadmissible and make the government’s argument as to why it is admissible. Who should prevail?

41. NEWSBREAKING HYPO • OJ Simpson went w/2 men to a Vegas sports memorabilia sale. The 2 men pointed guns at a dealer while OJ took his Hall of Fame certificate, signed photos of OJ w/J Edgar Hoover, and a video from OJ’s first wedding. OJ claims these items were stolen from him by his former agent and he was just retrieving what was rightfully his. He says he didn’t call the police b/c, since his murder trial, they have been unresponsive. He also claims it was merely a confrontation – no guns were involved and he didn’t steal anything – just took his own things back.

42. At OJ’s trial for the Vegas robbery – state wants to introduce: • A. 3/08/04 – DirecTV accuses Simpson of using illegal electronic devises to pirate broadcast signals; company wins $25,000 civil judgment; • B. 1/18/03 – Call to 911 by Simpson’s daughter to 911 claiming her dad flew into a rage and committed an “abuse thing” – no charges were filed. • C. Assume that after he is released from prison, but before his trial, OJ calls up the dealer and says, “if you testify against me, I am going to have you killed” – gov’t wants to introduce that threat

43. Final fun facts about 404(b) • Can be a bad “act” not only a crime; • Def entitled to a limiting instruction if asks for it • 403 may prohibit admission of some evidence allowed under 404(b) (see G&W note 10 for 403 balancing considerations; see also cb p.289) • Prosecutor must give notice of intent to use 404 (b) acts if def asks for notice • “Bad act” may occur after the crime for which defendant is charged • Can use 404(b) evid in civil cases • 404(b) evid presented via specific act testimony – i.e. testimony about the crime/bad act

44. GA v. Fed’l Rules • Although rules in GA on prior bad acts (known in GA as “similar transactions”) looks fairly similar to the Fed’l Rule, as a practical matter, much easier to get in similar transaction prior bad acts in GA than in Federal Court – prof Milich’s

45. The historical treatment of sex offense victims by the court system • As late as 1970, a leading treatise on evidence stated: “No judge should ever let a sex offense charge go to the jury unless the female complainant’s social history and mental makeup have been examined and testified to by a qualified physician.”

46. History underlying Rule 412 • This attitude led to a common law tradition that women who brought rape charges could and should be cross examined about prior instances of sexual conduct because it went both to her credibility(women who had sex outside of marriage were more likely to be liars) and to her consent on this occasion (if she had sex with someone other than her husband she was more likely to have consented to this sex act)

47. Rape trials became trials about the victim • Often, women, already deeply traumatized, were subjected to a legal system that, rather than supporting them in prosecuting a rapist, harmed them further by cross-examining them about their lifestyle and what they did to “cause” the assault

48. query • Assume a rape victim had a history of sleeping with many different men. The defendant wanted to introduce the character trait that the woman was “loose”. Assume Rule 412 didn’t exist – given the rules we have learned thus far, could the defendant put a witness on the stand to say, “I know the victim and she has a reputation as a loose woman?” • What is the probative value of the fact that the victim has slept with many men to whether she was raped by this defendant? What is the risk of prejudice here? If this evidence were admissible, how willing would the victim be to testify?

49. Policy underlying Rule 412 • Probative value of victim’s sexual history is low; risk of prejudice is high; potential for harming the victim very high and likely to discourage victims from prosecuting rape claims. Thus Congress (& virtually every state) enacted Rule 412 rape shield laws which prohibit the introduction of a criminal victim’s prior sexual conduct except in very limited circumstances

50. In criminal case, victim’s prior sexual history/conduct comes in: • Read rule and list the only three reasons victim’s prior sexual history/conduct admissible in a criminal trial