Addled Accused is accused of committing grand theft on June 1, 2005,
by taking $100,000 out of a safe in Dingo's Diner after "cracking" the
combination of the lock on the safe. At the trial Addled testifies in
his own defense. On direct examination he states that he was in Tibet
on June 1, 2005. On cross-examination the prosecutor asks, "Mr. Addled
Accused, isn't it a fact that you unlawfully took -- stole, that is
-- $134,000 from the Dingo Diner safe on April 15, 2004?"
Should the trial court sustain _____ or overrule _____ Accused's probable
objection(s) to this question?
Please explain.
5
James Fitzgerald Kelly is charged with committing bank robbery on June 1, 2002.
Offer of evidence: JFK robbed a bank on May 1, 1984, another bank on July 1, 1988, and yet another bank on September 3, 1998.
Accused JFK objects: character evidence rule.
The prosecutor responds:
The evidence will show that JFK joined the IRA in 1982. The evidence - consisting of a series of diary entries and letters by JFK, which were written from 1982 though 2000 - will further show that JK had a deep and abiding hatred of all things English, he favored the use of violence to free Northern Ireland from British rule, and that all four bank robberies were committed in order to finance armed struggle against British rule in Northern Ireland.
Question:
Does the evidence described by the prosecutor violate the character evidence rule?
6
DD is charged with robbing the Last National Bank on June 1, 2005. It
is alleged that (s)he did so by threatening a teller with a Doberman
Pinscher and after getting the money putting it in the Doberman's saddle
bags.
At the trial DD testifies that Slimy Sam, not DD, was the robber. The
prosecutor does not cross-examine DD, but later in the trial she offers
to have WW testify that on May 3, 2000 DD robbed Grimy Federated Bank
by threatening a teller with a Doberman Pinscher and thereafter putting
the Bank's money in the dog's saddle bags.
DD objects to the proposed testimony on the ground that it is extrinsic
evidence of an act of the defendant in the absence of a conviction and
therefore is not admissible to impeach the defendant.
The prosecutor responds,
We are not using the prior robbery to impeach. We are offering evidence
of the prior robbery to show the DD's m.o. The unusual character of
the prior robbery serves to identify the defendant DD as the perpetrator
of the 2005 robbery, the robbery for which (s)he is on trial.
The court might well overrule the DD's objection. Please explain why.
But now consider a more elaborate version of the Doberman Pinscher
case:
DD is charged with robbing the Last National Bank on June 1, 2005.
The culprit's m.o. was the use of a Doberman Pinscher: the culprit --
whoever the culprit was --, the culprit threatened a teller with a Doberman
Pinscher and after getting money from the teller put it in the Doberman's
saddle bags.
DD denies that he did it; he claims someone else robbed the Last National
Bank on June 1, 2005.
At the trial the prosecutor offers to show that on May 3, 2000, DD robbed
the Grimy Federated Bank by threatening a teller with a Doberman and
thereafter putting the Bank's money in the dog's saddle bags.
DD objects. He cites the character evidence rule and, for good measure,
he mentions FRE 404(a) and the first sentence of 404(b).
The prosecutor responds,
We are not attempting to use the prior robbery to show that DD has a
tendency or propensity to rob banks. We want to use the prior robbery
to show the identity of the perpetrator on June 1, 2005. DD's use of
a Doberman is like a signature; it shows that DD rather than someone
else committed the robbery on June 1, 2005.
The judge states,
Well, counsel for DD, the prosecutor seems to have something there.
I note that FRE 404(b), second sentence, allows the use of bad acts
to show identity.
DD, via his counsel, responds,
Your Honor, the prosecutor's argument is a sham. The distinctive m.o.
that my client might have used in 2000 does not serve as his signature.
The fact is that other people are capable of using this m.o. In fact,
your Honor, as you very well know, just two years ago another person,
a person other than my client DD, was convicted in this very courtroom
of committing a bank robbery by using a Doberman Pinscher to intimidate
a bank teller. Moreover, my client's 2000 trial and conviction were
widely publicized and it is reasonable to assume that people other than
my client had the imagination and the means to commit a bank robbery
the way my client allegedly did in 2000. If my client's prior bad act
is to be admissible on the question of the identity of the perpetrator
of the crime committed in the year 2005, it must be clear that only
my client could have committed the year 2005 crime. That's what the
revered Wigmore said. He was obviously right.
The prosecutor responds,
Your Honor, with due deference to the august Wigmore, the position he
espoused never could have been the law and, in any case, if it was,
it is no longer the law; that is, under the Federal Rules of Evidence
the prior crime does not have to conclusively demonstrate the identity
of the perpetrator of the 2005 bank robbery. The only thing required
now is that the prior robbery or misdeed be relevant to the question
of identity.
Is the prosecutor right? If so, please spell out the prosecutor's argument
in more detail.
Is there a connection here to Huddleston v. United States*?
Read Huddleston.*