Rule 404b - Admission of Character Evidence for Purposes Other than Proof of Propensity Flashcards
Carl is on trial for stealing a car. The car was found abandoned ten days after it had been stolen; inside were five or six fast-food wrappers, all from Taco Bell. Can the prosecution introduce evidence that Carl likes Taco Bell food or has been seen at Taco Bell restaurants? Is this propensity evidence?
What if the evidence linking Carl to the car was a little more distinctive? What if police found an ABBA CD in the car’s CD player, and Carl was listening to ABBA when he was arrested at home? What if police found a recent copy of “Bagpipers Weekly” in the car, and the defendant was arrested while at home playing his bagpipes?
But what if the police found a meth pipe in the car, and Carl was convicted a year ago for possession of meth? Now we have a propensity question: Will the jury assume that Carl was more likely to steal the car because he had broken the law in a different way, by smoking meth? What’s the analysis?
1: is this really propensity type character evidence offered for another purpose or just a possible fact of consequence? The prosecutor isn’t arguing that Carl’s propensity to eat Taco Bell food made it more likely that he would steal a car. Instead, he’s arguing that Carl’s affinity for Taco Bell links him to evidence found in car, providing circumstantial evidence that Carl was in the car and might have been the person who stole it. It’s 401-403 analysis. No unfair prejudice, but how probative is it? Is offering the evidence a waste of time since lots of people eat Taco Bell?
Police in suburban Washington, D.C., discovered two men on the roof of a commercial building. Believing that the men were burglars, they called for assistance and apprehended the pair. Ricardo Mendez and Jorge Herrara-Cruz, the two suspects, obeyed all police commands, climbed down from the roof, and held their hands in the air. Police officers, some with guns drawn, surrounded the two suspects. At that point, one officer asked the commanding officer, “Sarge, can the dog get a bite?” The commanding officer replied “yes,” and officer Stephanie Mohr released the police dog she was holding. The dog attacked Mendez, who was still standing peacefully with his hands in the air, and bit him on the leg. Subsequent investigation revealed that Mendez and Herrara-Cruz were not burglars; they were homeless men sleeping on the roof.
A federal grand jury indicted Mohr for willfully acting under color of law to deprive Mendez of his right to be free from the unreasonable use of force. At trial, Mohr disputed the version of events related above, claiming that she released the dog because Mendez refused to raise his hands and appeared about to escape. The prosecutor countered this evidence in part by introducing evidence that Mohr had unreasonably released her police dog on at least one other occasion. On that occasion, Mohr ordered the dog to attack a 16-year-old African American boy who was sleeping in a hammock; she erroneously thought the boy was a burglary suspect. Mohr objected to the evidence of this prior incident and, after she was convicted, appealed in part on that ground.
Was the prosecutor’s evidence of Mohr’s prior act valid “intent” evidence or inadmissible “propensity” evidence?
The court of appeals found that that the trial judge properly admitted evidence of the previous attack to show intent. The court noted that the government “bore the burden of proving, beyond a reasonable doubt, that Mohr released her dog, willfully intending to deprive Mendez of his constitutional right to be free of excessive force.” The government, in other words, had to show a very particular mental state: It had to prove either that Mohr possessed “the particular purpose of violating a protected right made definite by the rule of law” or that she “recklessly disregard[ed] the risk” that she would violate such a right. The court concluded that evidence of Mohr’s prior attack on the sleeping teenager “was probative of willfulness because it suggested that, on at least one other occasion, Mohr used her police dog in a way that recklessly disregarded the risk that her actions would violate a citizen’s right to be free from the use of excessive force.”
Oscar Sanger spent the evening drinking at the Pelican Saloon. He noticed another man who was drinking heavily and acting aggressively, pushing and threatening other customers. As Oscar left the bar, the aggressive man followed him into the parking lot. As the man drew closer, Oscar shouted, “Leave me alone!” The man continued closing in on Oscar and Oscar fired his gun, killing the man.
The government prosecuted Oscar for murder, and Oscar claimed self-defense. Consider each of these pieces of evidence, which Oscar might offer to support his defense:
Can Oscar admit the following:
Oscar offers evidence that the victim was convicted last year of assault with deadly weapon.
The victim was never convicted of any crime, but Oscar offers evidence that he knew the victim and had seen him attack other people on several occasions. The prosecutor vigorously disputes the existence of those earlier attacks.
Oscar cannot offer this evidence under 404(a)(2)(B) to show that the victim had a propensity to assault others, because 405(a) limits that proof to opinion or reputation evidence. Oscar needs to find another purpose under 404(b). Can try to use the evidence to show that he had knowledge of the threat against him from the victim. Prosecutor can challenge admission under 403 claiming that jury is likely to believe victim was a bad person and deserved what he got. Judge then weighs probative value of Oscar’s knowledge and prejudice to the victim.
This is also offered to show Oscar’s knowledge, but prosecutor has stronger 403 objection because trial may get bogged down in series of hearings and testimony about whether the victim assaulted other people or not and how much Oscar knew about it.
Acting on a private complaint, the police executed a search warrant of Vernon Mullin’s property and discovered numerous stolen trucks, equipment, and truck parts. Many of the vehicles had their identification numbers altered or removed. The police subsequently arrested Mullins, Charles Tackett, and a number of others who allegedly participated in this “chop shop” operation for vehicles and vehicle parts.
The government charged Mullins and Tackett with possessing motor vehicles and motor vehicle parts with knowledge that the identification numbers had been removed or altered; as well as with knowingly removing or tampering with motor vehicle identification numbers. The charged crimes, in other words, required the government to prove knowledge. To satisfy those elements of the crimes, the prosecutor seeks to admit Mullins’s prior convictions for receiving stolen property and Tackett’s prior conviction for altering motor vehicle identification numbers.
- The trial court admitted these convictions to prove absence of mistake or accident, and the court of appeals upheld the ruling under an abuse of discretion standard. The appellate court observed: “Admission of the prior convictions negated any claim of mistake or accident by the defendants and prevented the jury from being misled into believing that the defendants possessed the stolen goods without knowledge of their theft.” United States v. Fleming, 902 F.2d 1570 (6th Cir. 1990).
- Note that the government also could have offered this evidence as proof of knowledge. The government offered this evidence to show that the defendants had the required knowledge: Because of their previous activities and convictions, the defendants almost certainly knew that the vehicles in their possession were stolen and had altered identification numbers. It makes no difference what phrase courts and litigants use to describe the purpose of evidence, as long as the purpose is relevant and is something other than propensity.
In 2007 a man named James Coldwell disguised himself as a tree and robbed a bank in Manchester, New Hampshire. Coldwell taped branches and leaves to his head and torso, attempting to hide his identity, but an acquaintance recognized him and revealed his identity to the police. Suppose Coldwell pled guilty and, as a first time offender, received a suspended sentence. Six months later, a man dressed as tree robbed another New Hampshire bank. This robber’s face was not visible, but the police arrested Coldwell and charged him with the second robbery.
At trial, can the prosecutor offer evidence of Coldwell’s first conviction to link him to this second robbery?
Leafy Thief: Answer
The prosecutor can make a strong argument to admit this evidence because this is a very distinctive disguise. Judge will balance the probative value against the unfair prejudice The jury may conclude that Coldwell has a dishonest, bank robbing character. If he robbed one bank, he probably robbed this one. However, what about the issue of copycat robbers? Lower the probative value? Maybe.
Zoe is on trial for shoplifting a digital camera from an electronics store. The prosecutor claims to have a security video that shows Zoe picking the camera off the shelf, concealing it under her clothing, and leaving the store without paying for it. Zoe claims that she was never in the store, and that the person caught on the security camera is someone else. The prosecutor wants to
introduce evidence that last year Zoe stole a cell phone from a store by picking the phone off the shelf and hiding it underneath her clothes. Is this evidence admissible?
No. The defense revolves around identity. This evidence does not prove anything toward identity. It only shows propensity, which isn’t available here. Can’t use evidence to show propensity here.
Xander is accused of stealing a digital camera by going to the video game section of the store, peeling off the computer price code from a $20 game, and gluing that tag to a $300 video camera box. When the clerk scanned the item, he failed to notice the discrepancy, and Xander was able to leave the store after paying only $20. The clerk has identified Xander as the shopper who presented the mis-tagged camera box. Xander claims that he was not the one who committed this crime, and that the store clerk misidentified him. The prosecutor wants to admit evidence that last
year Xander stole a $150 cell phone by pasting a computer price code from a $10 cell phone holster onto the cell phone package and paying only $10 for the phone. Is this evidence admissible?
Admit
The court is likely to admit evidence of this prior act. This is a more distinctive method of shoplifting, so the probative value in identifying Xander is higher than the probative value in Zoe’s case. The prior act also suggests that Xander has the knowledge to commit this crime; it is a technique he has practiced. Although the evidence causes some unfair prejudice (the jury may simply assume that Xander is the type of person who shoplifts), the probative value for proving identity and knowledge probably is sufficient to admit the evidence.
