Uncharged - Misconduct Evidence and the Issue of Intent: Limiting the Need for Admissibility

Publication year2021
Connecticut Bar Journal
Volume 67.






We observe in our passages through life that people are known by the friends they make and the company they keep. Similarly, we learn that a man's reputation precedes him. Not surprisingly, therefore, the Bible informs us that "our sins testify against us...(fn1) Thus, our deeds and misdeeds form markers of different phases of our lives, and will follow us wherever our different paths may lead us, including to, and on occasion into, the courtroom. But if our sins are to testify against us, what impact will this have upon the presumption of innocence? Put another way, can the presumption stand for something more than an empty phrase before the onslaught of the collective misdeeds of our past?

This is the central issue which this article addresses, as it traces the efforts of the courts to grapple with the need for relevant but potentially inflammatory evidence of guilt and the necessity of preserving the right of those accused of crimes to be judged on the basis of the evidence of their present conduct within the framework of trial proceedings that are governed by principles of decency and fundamental fairness. The reader will quickly observe the particularly troublesome nature of this area of the law of evidence. (fn2) The reader will further observe throughout the article that the courts which have been confronted with the issue of the admissibility, against a defendant in a criminal trial, of evidence of crimes or acts of misconduct (fn3) other than those for which he is being tried are torn by the recognition of the highly relevant nature of such evidence


and the fear that its very strength of relevancy, if presented to a jury of laymen, will have a devastating impact upon their continuing ability to impartially judge the defendant's guilt or innocence of the present charged offenses. As the United States Court of Appeals for the Second Circuit has observed, the balance between probative force and prejudice, when evidence of prior misconduct of a defendant is offered, will be in many cases "a close matter."(fn4) It might in fact, however, be tilted in favor of prejudice, and thus blind the jury to the real issue of the defendant's guilt or innocence of the charged crime. This prejudice can result in a subjective decision of jurors to convict the defendant on the basis of his evil character, his prior misdeeds, or a combination of current and past acts of misconduct, irrespective of whether they are convinced that he committed the act for which he is being tried.(fn5)

This phenomenon should not be surprising, even when it implicates those of us who are rightly viewed by society as being most dedicated to professional impartiality in the administration of the criminal process - the judiciary - for there is much to be said in support of the argument that criminal or antisocial behavior, extrinsic to that for which a defendant is presently standing trial, is symptomatic of a type of character for whom criminal behavior is acceptable. The moral basis of the criminal law, with its insistence upon individual responsibility as reinforced by the doctrine of free will, cries out to us that a man who engages in criminal, immoral conduct is, in reality, an individual possessed of a criminal character. Thus, if an individual has engaged in criminal activity or acts of misbehavior on other occasions, this evidence is highly relevant to prove his character in order to show that he presently acted in conformity therewith. The threat, of course, is that a jury may exaggerate the significance of character evidence at the expense of the quality of evidence of present innocence or guilt. The result, therefore, can be that the presumption of innocence will be overwhelmed and the defendant unjustly convicted.


The subject of the admissibility of evidence of other crimes or acts of misconduct in criminal cases is both complex and vast. Different jurisdictions have dealt with it in varied ways. This article 6als primarily, but by no means exclusively, with the admissibility of extrinsic-acts evidence to establish the element of intent in criminal prosecutions. This issue is of particular significance, because, in addition to its prevalence in most criminal cases, (fn6) a defendant's intent is crucial to the degree of his criminal culpability, and has been equated, in American criminal jurisprudence, with moral guilt.(fn7) In addition, the article will trace the general rule of exclusion of other-crimes evidence through development and rationale, and will distinguish the exclusionary and inclusionary formulations of admissibility of recognized exceptions to the general rule. Similarly, it will analyze the categories of classification of these exceptions to the general rule of exclusion. Moreover, due to the significance of the issue of intent in the criminal law, particular attention will be directed to analyses of the relevant factors that affect the balancing test - the probative value of uncharged-misconduct evidence against its prejudicial tendencies - and the article will therefore conclude that the inflammatory nature of this evidence poses such a threat to the defendant's right to a fair trial and to the continued viability of the presumption of innocence, that he should be allowed to remove the crucial element of intent from the case, and from the jury's consideration, subject to the approval of the trial court, by means of a stipulation and a waiver of the right to have the court instruct the jury on this element.


As a general rule of judicial policy, derived from the common law,(fn8) evidence of guilt of other crimes unconnected with the charged offense is inadmissible to prove that the defendant is guilty of the crime charged against him.(fn9( The rule


originated in England in the late seventeenth century as a procedural device for countering the inquisitorial practices of the Star Chamber. Thus, the rule had its roots in the accusatorial nature of the Anglo-American criminal process, which requires the government to prove that the accused did some act forbidden by law. In contrast, the inquisitorial process assumes that the defendant committed the charged crime, and therefore imposes upon him the burden of establishing his innocence. The courts admit evidence of the defendant's prior criminal activity which he must also overcome. However, the propensity rule, which since the close of the eighteenth century has been a major restraint on prosecutorial proof in American criminal trials, excludes evidence offered to establish the defendant's disposition to commit crime. Regrettably, the current federal rules' expansion of the scope of prosecutorial use of uncharged misconduct evidence and the willingness of the federal courts to admit such evidence is gradually transforming the American criminal justice system from an accusatorial to an inquisitorial process.(fn10)

As the United States Court of Appeals for the Third Circuit has acknowledged, the basic rule(fn11) governing the admissibility of character evidence in federal prosecutions is inclusive, not exclusive, in nature, and emphasizes admissibility.(fn12) (Moreover, while the government may be reluctant to admit it, the reasons proffered to admit extrinsic-acts evidence may often be a subterfuge for the real motive behind the use of this type of evidence, which, at least in part, is an urge to impugn the defendant's character.(fn13) Accordingly, the reason for the propensity rule is that the danger of prejudice from evidence that the accused is a person of bad character and thus is more likely to have committed the charged crime is deemed to outweigh the probative value of such evidence and may have no direct tendency to prove the crime for which the defendant is presently


being tried.(fn14) By limiting the admission of bad-acts evidence,(fn15) therefore, the propensity rule reinforces the presumption of innocence by insisting that one accused of crime be tried for "what he did, not for who he is."(fn16) Thus, once jurors have been exposed to other-crimes evidence, it is virtually impossible to assume the continued integrity of the presumption of innocence.(fn17) The rule, in short, is invoked to avoid once a criminal, always a criminal prejudice. Accordingly, given the presumption of innocence and the inherent tendency of uncharged-misconduct evidence to show criminal propensity, despite a cautionary instruction by the court to the jury, there is a serious question whether the government can introduce such evidence unless it is necessary to rebut a particular defense.(fn18)

It is apparent, therefore, that the admissibility of evidence of similar but unconnected crimes would violate the rule of policy which prohibits the government initially to attack the character of the defendant, and also the rule of policy that bad character may not be proved by particular acts of misconduct.(fn19) Hence, exclusion guards against using other-crimes evidence to show the defendant's evil disposition and, in particular, his predisposition to commit the charged offense.(fn20) The concern here is not that such evidence lacks probative value, but rather, that it is commonly perceived as having too much.(fn21) Thus, the danger


of admitting any evidence of uncharged misconduct is that the defendant will be put in the position of being tried on the basis of the purity of his character rather than on the quality of the evidence of his guilt or innocence of the offense charged.(fn22) Trial courts, therefore, must exercise great care to...

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