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25.20 Uncharged Acts To Prove Propensity (FRE 413-415)

    25.20.1 Uncharged Acts Offered To Prove Propensity: Must Be Considered In Light Of All The Evidence
    25.20.2 Uncharged Acts Offered To Prove Propensity: Jury Must Find Defendant Guilty Of Charged Offense Beyond A Reasonable Doubt
    25.20.3 Uncharged Acts Offered To Prove Propensity: Informing Jury That Prior Offenses Resulted In Acquittal Or Hung Jury
    25.20.4 Uncharged Acts: Constitutional Challenge Based On Inequity In Precluding Evidence Of Victim's Prior Consensual Sexual Encounters
    25.20.5 Uncharged Acts Offered To Prove Propensity: Constitutional Challenge To Proof Of Propensity By Uncharged Acts
    25.20.6 Uncharged Acts Offered To Prove Propensity: Analogy To Improper Joinder To Illustrate Prejudice    

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RATIONALE: Evidence of other sexual offenses typically creates two permissive inferences which explicitly permit the jurors to infer that the defendant committed the charged crimes because he is a person disposed to commit such crimes. The first inference permits the jurors to find from the commission of a prior sexual offense that the defendant had a disposition to commit the same or similar type of sexual offense. The second inference tells the jurors that they may conclude from this "disposition" (i.e., the disposition to commit such acts) that he was likely to commit and did commit the crimes of which he is accused. Because this second inference permits the jurors to infer guilt for the charged offenses solely from the finding that the accused committed a prior incident, a jury could infer that the defendant "did" commit the charged offenses without considering any evidence other than the facts of the uncharged incidents. This violates due process by permitting the jury to infer guilt solely from the commission of a prior incident.

POINTS AND AUTHORITIES:  In 1995, Rules 413 and 414 of the Federal Rules of Evidence, which had been passed by Congress the year before, became effective. Rule 413(a) provides:

In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant.

    Rule 414(a) is virtually identical except that it applies to charges involving the sexual abuse of children. For the purpose of Rule 414, a "child" is a person under 14 years old. (FRE 414(d); United States v. Larson, 112 F3d 600, 604 (2nd Cir. 1997).)

    The clear intent of Congress in enacting these two rules was to carve out an exception to Rule 404(b) with respect to evidence of the propensity to commit sexual offenses. (See United States v. Le Compte, 131 F3d 767, 769-70 (8th Cir. 1997); Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 5-27, Comment, p. 5-79.)

    Prior sex acts are permitted in some jurisdictions to show criminal propensity. (E.g., FRE 413-415; California Evidence Code § 1108 [sex offenses], California Evidence Code § 1109 [domestic violence].) When such evidence is admitted the jury instructions must prevent a verdict based solely on the prior acts. (People v. Falsetta (CA 1999) 21 C4th 903, 924 [89 CR2d 847, 861; 986 P2d 182]; see also People v. Guzman (CA 1999) UNPUBLISHED  previously published at 73 CA4th 103.)

    See also FORECITE National™ 26.5.2.2 [Uncharged Acts: Jury Must First Find That Defendant Committed The Prior Bad Act Or Crime].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.9].

See Manual On Recurring Problems In Criminal Trials ["Other Crimes" Evidence: General Principles].

See also generally, FORECITE National™ 305.21.2 [Uncharged Acts]. 

SAMPLE INSTRUCTION # 1:

    You may not convict the defendant solely on evidence that the defendant committed the prior sex crime(s). Before you may convict the defendant you must conclude, in light of all the evidence, that the prosecution has proven the defendant guilty of the charged offense beyond a reasonable doubt.

    If you find [by a preponderance of the evidence] that the defendant committed [a] prior sexual offense[s] that is not sufficient by itself to prove [beyond a reasonable doubt] that [he] [she] committed the charged crime[s]. The weight and significance of the evidence, if any, are for you to decide.

CAVEAT: The sufficiency of the wording of the above instructions has not been specifically approved by the reviewing courts. In People v. Falsetta (CA 1999) 21 C4th 903, 924 [89 CR2d 847, 861] the California Supreme Court, "[w]ithout passing on ... issues not before us," opined that this language conveyed the "controlling principles under [Evidence Code] section 1108."

SAMPLE INSTRUCTION # 3:

    Any evidence of a prior act or offense allegedly committed by the defendant is not sufficient, on its own, to prove the defendant guilty of the charged crime[s]. In considering any such prior act or offense, remember that the government has the burden of proving that the defendant committed each of the elements of the charged offense[s] upon which you have been instructed. The defendant is not on trial for any act, conduct, or offense not charged in the indictment.

[United States v. McHorse, 179 F3d 889 (10th Cir. 1999); cf., Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 5-27, p. 5-79.]

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RATIONALE: In jurisdictions where prior sexual acts are admissible as propensity evidence there is a danger the jury will focus only on the uncharged acts resulting in conviction of the charged offense on less than proof beyond a reasonable doubt.

POINTS AND AUTHORITIES: When prior conduct evidence is introduced pursuant to federal FRE 404(b) such evidence must be established by a preponderance of the evidence (Huddleston v. U.S. (1988) 485 US 681, 685; [108 SCt 1496; 99 LEd2d 771].) The preponderance of the evidence standard has been adopted to establish prior sexual conduct introduced pursuant to FRE 413, FRE 414 and FRE 415.  (U.S. v. Enjady (10th Cir. 1998) 134 F3d 1427, 1433.) The introduction of evidence under the new federal evidentiary rules, pursuant to this burden of proof, has been approved. (Id. at 1433-34; People v. Falsetta (CA 1999) 21 C4th 903 [89 CR2d 847, 861]; see also People v. Fitch (CA 1997) 55 CA4th 172, 183 [63 CR2d 753] [jury was instructed that it could not convict defendant simply because it found he had a character trait that tends to predispose him to commit the crime charged].)

    However, even if the prior act may be proven by a lesser standard, guilt of the charged offense must still be proven beyond a reasonable doubt. (In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]; People v. Falsetta (CA 1999) 21 C4th 903 [89 CR2d 847]; People v. Vichroy (CA 1999) 76 CA4th 92 [90 CR2d 105].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.9].

RESEARCH NOTES:

See generally, FORECITE National™ 305.21.2 [Uncharged Acts]

SAMPLE INSTRUCTION: [Add to existing instruction]:

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PRACTICE NOTE: It has been suggested that because the preponderance of the evidence standard applies to the admission of prior sexual offenses, a prior acquittal does not bar admission of the prior offense. (See People v. Baker DEPUBLISHED (CA 1998) 65 CA4th 1452, 1468 fn 14 [77 CR2d 468] [because the preponderance of the evidence standard applies to uncharged offenses, a prior acquittal does not bar admission of the prior offense].) However, in reaching this conclusion the Baker court noted that the defendant was allowed to inform the jury that one prior charge resulted in acquittal and the other in a deadlock of 10-2 in favor of acquittal. (Ibid.)  Hence, the defendant should have the option of informing the jury of the prior jury's acquittal or deadlock on the charge.

OPINION AVAILABLE:  [Opinion Bank # O-302].  [People v. Baker DEPUBLISHED (CA 1998) 77 CR2d 468].

See generally, FORECITE National™ 305.21.2 [Uncharged Acts]

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PRACTICE NOTE: The admission of propensity evidence is contrary to the spirit of the long-standing legal requirement that a defendant be found guilty or not guilty on the basis of whether the defendant committed the charged offense, not on the basis of extrinsic actions. (See Wharton’s Criminal Evidence (West, 14th ed. 1986) § 4.42.)  Since it is permitted to admit even uncharged prior sexual acts which are deemed relevant, it is therefore all the more important to be alert to constitutional issues of Due Process. (See Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 34.2, p. 34-8 to 34-14; see also FORECITE National™ 25.20.5 [Uncharged Acts Offered To Prove Propensity: Constitutional Challenge To Proof Of Propensity By Uncharged Acts].)

    However, the due process and equal protection clauses of the 14th Amendment requires a sense of balance and reciprocal parity between the prosecution and the defense in criminal cases. The state may not deprive a criminal defendant of a fair trial by giving the prosecution discovery, evidentiary, jury instructional, or other important rights which it denies to the defense. (Wardius v. Oregon (1973) 412 US 470, 472 [93 SCt 2208; 37 LEd2d 82]; Hubbard v. Superior Court (CA 1997) 53 CA4th 587 [61 CR2d 799] [review granted, but subsequently dismissed with order to republish opinion at 66 CA4th 1163, 1170 [78 CR2d 819]; Izazaga v. Superior Court (CA 1991) 54 C3d 356, 377, fn 14 [285 CR 231].)

    Some jurisdictions hold that evidence of a criminal defendant's sexual misconduct with another person can be used to establish a predisposition to commit sexual offenses and, by inference, that the alleged perpetrator forced the alleged victim in the instant case to engage in nonconsensual sex. (See e.g., FRE. 413-415.) However, evidence codes commonly prohibit a defendant from offering "character evidence" of the victim's consensual sexual encounters with other persons to prove that the alleged victim had a propensity to acquiesce to sexual relations and, by inference, consented to sexual relations with the defendant before falsely crying rape. To load the scales against the defendant in this way violates the reciprocal parity and balance requirements of the 14th Amendment and is fundamentally unfair.

See generally, FORECITE National™ 305.21.2 [Uncharged Acts]

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PRACTICE NOTE: Due process is transgressed by a state rule that "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." (Medina v. California (1992) 505 US 437, 445-46 [112 SCt 2572;120 LEd2d 353].) The use of "other acts" evidence as character evidence to show that the defendant has criminal propensities, and therefore is by inference likely to have committed the currently charged crimes, has been universally condemned as contrary to firmly established principles of Anglo-American jurisprudence for more than three-hundred years. (See e.g., McKinney v. Rees (9th Cir. 1993) 993 F2d 1378, 1380.)

    The United States Supreme Court has recognized at least twice the unanimous tendency of courts that follow the common law tradition to disallow resort by the prosecution to evidence of a defendant's evil character to establish the probability of his guilt and strongly suggests that introduction of prior crimes evidence solely for the purpose of showing a criminal disposition would violate the due process clause. (Michelson v. U.S. (1948) 335 US 469 [69 SCt 213; 93 LEd 168]; Bell v. Texas (1967) 385 US 554, 572-74 [87 SCt 648; 17 LEd2d 606], conc. and diss. op. of Warren, C.J.; see also Panzavecchia v. Wainwright (5th Cir. 1981) 658 F2d 337; People v. Kelley (CA 1967) 66 C2d 232, 238-39 [57 CR 363].)

    Hence, it has been held that a statute permitting evidence of other charged or uncharged crimes involving victims under 14 years of age to be admitted to show criminal propensity violated the defendant's constitutional right to be tried only on the charged offense. (State v. Burns (MO 1998) 978 SW2d 759, 760-61.) Evidence of uncharged offenses to show propensity is inadmissible because it fosters conviction based on such propensity without regard to whether the defendant is guilty of the charged crime. (Ibid.; but see U.S. v. Enjady (10th Cir. 1998) 134 F3d 1427, 1433-34; People v. Falsetta (CA 1999) 21 C4th 903 [89 CR2d 847 [rejected due process].)

    People v. Morehouse (3/30/98, B106834) UNPUBLISHED, disagreed with People v. Fitch (CA 1997) 55 CA4th 172 [63 CR2d 753] and concluded that California Evidence Code § 1108 is unconstitutional. Morehouse concluded that case law has always held propensity evidence to be inadmissible as an historical matter. Since the test for constitutionality is whether the evidence was admissible historically, the exclusion of propensity evidence as an historical matter renders Evidence Code 1108 unconstitutional in violation of due process principles.

OPINION AVAILABLE: For a copy of the Morehouse opinion, click here. [Opinion Bank # O-244].

See generally, FORECITE National™ 305.21.2 [Uncharged Acts]

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PRACTICE NOTE: It has been recognized that there is "a high risk of undue prejudice whenever... joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be inadmissible."  (U.S. v. Daniels (DC Cir. 1985) 770 F2d 1111, 1116; see also Bean v. Calderon (9th Cir. 1998) 163 F3d 1073, 1084; U.S. v. Lewis (9th Cir. 1986) 787 F2d 1318, 1321.) This prejudice is illustrative of the prejudice resulting from allowing the jury to rely on a prior uncharged offense.

See generally, FORECITE National™ 305.21.2 [Uncharged Acts]