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Washington Lawyer

Legal Spectator: He Should Have Looked

From Washington Lawyer, February 2003

By Jacob A. Stein


The rule, which requires that all evidence which is introduced shall be relevant to the guilt or the innocence of the accused, is always applied with considerable strictness in criminal proceedings. The wisdom and justice of this, at least from the defendant’s standpoint, are self-evident. The defendant can with fairness be expected to come into court prepared to meet the accusations contained in the indictment only, which in this case was the larceny of the Dodge automobile. On this account, all the evidence offered by the State should consist wholly of facts which were within the range and scope of the allegations contained in the indictment upon which he is being tried. The evidence introduced over the defendant’s objection relating to other offenses than that charged in the indictment no doubt alarmed the suspicions of the jury, or at least it may have had that effect, and inclined them the more readily to believe in the guilt of the defendant of the offense charged….

Dennison v. State, 17 Ala. 674, 88 So. 211 (1921) (Bricken, J.) (larceny of an automobile).

Does not that long paragraph say that it is unfair of the prosecutor to charge a defendant with one specific crime and then put in evidence of other crimes and bad acts unconnected with the specific crime? It is unfair because the prosecutor proves the general bad character of the defendant to show he is evil and therefore must be convicted, guilty or not.

Or try this even shorter summary: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show conformity therewith.” That is the way the Federal Rules of Evidence state the principle. As Rumpole would say, this is the golden thread of fairness that runs through our criminal law.

If things ended there, Rumpole would be correct. The law would be as Judge Bricken gave it in 1921. But by the time the Federal Rules of Evidence came to us on the stone tablets, the law had changed.

The very next sentence of Rule 404(b) opens a wide door through which the forbidden evidence proudly enters the case. It says that the bad stuff may be admissible “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident” or anything else a resourceful prosecutor can dream up.

Two authorities on the subject, professors Paul Rothstein and Edward J. Imwinkelried declare that the irreconcilable conflict between these two sentences, the first forbidding the use of uncharged misconduct and the second inviting it, produces more litigation, law review articles, and commentary than any other evidentiary rule. Lexis turns up well over 3,000 hits. The effort of the courts to resolve the conflict has proved futile. That second sentence has become the Prosecutor’s Delight. 21 UCLA L. Rev. 892, 896 (1974). The prosecutor’s justification often is that the uncharged misconduct connects the defendant to the crime. It identifies him. It is his pattern, his method of operation. Furthermore, the prosecutor need not prove the uncharged misconduct beyond a reasonable doubt, as he must prove the charged misconduct. No, he need prove it only by the much easier standard, by a preponderance of the evidence. Huddleston v. United States, 485 U.S. 681 (1988).

Now let us go from the abstract to the specific. There was a middle-aged man who was attentive to young women. He repeatedly induced his young women friends to go on motoring trips from his home in Maine to Toronto, Canada. When he returned, he returned alone. The women were never seen again. The local police became suspicious. They obtained a search warrant and found in his apartment joint bank account books naming the missing women. He was indicted. He was charged in one count with the murder of just one of the women.

The prosecution offered evidence in three other cases involving women who disappeared. The defense lawyer predicted the trial judge would let in the evidence of the three other cases, the uncharged misconduct. When that evidence got before a jury, that would be the end of the case. He decided to go nonjury.

The judge did let in the prejudicial evidence, pointing out the compelling similarity in the cases. They show the “signature” of the defendant. Each case was the same as the other. Each proved the other.

The lawyer in closing argument put the judge on the spot. He said the prosecution was trying to prove the case charged in the indictment by proving three other so-called similar cases. Accepting the judge’s logic, if one of the girls is alive, the prosecutor’s case must fail.

“Judge, if just one of those women enters the court, you must return a verdict of not guilty. That is the logical conclusion based on your similarity ruling.”
The lawyer turned dramatically and pointed to the courtroom door. The judge’s clerk stared at the door. So did the judge. So did the gallery.

Three minutes of silence. Nobody entered. Defense counsel then turned and faced the judge and said, “I have demonstrated to you and your clerk that both of you have a reasonable doubt. If you were convinced beyond a reasonable doubt the women were murdered, why stare as you did with your eyes fixed at the door?”

Despite the argument, the judge found the defendant guilty.

“You made a good logical argument. I grant you that you may have created a reasonable doubt—except for one thing. You convinced everybody but your client. He looked straight ahead during the entire three minutes. Good argument—bad witness prep.”

Jacob A. Stein may be reached by e-mail at [email protected].