Every juror wants a story: narrative relevance, third party guilt and the right to present a defense.

• Author: Blume, John H.

ABSTRACT

On occasion, criminal defendants hope to convince a jury that the state has not met its burden of proving them guilty beyond a reasonable doubt by offering evidence that someone else (a third party) committed the crime. Currently, state and federal courts assess the admissibility of evidence of third party guilt using a variety of standards. In general, however, there are two basic approaches. Many state courts require a defendant to proffer evidence of some sort of "direct link" or connection between a specific third party and the crime. A second group of state courts, as well as federal courts, admit evidence of third party guilt if it is relevant under Federal Rule of Evidence 401, or its state equivalent, and not excluded by other rules of evidence, such as 403. While some scholars have lauded the 401/403 approach as the better test, in practice the two tests operate in much the same way and the evidentiary "bottom line" is that the defendant's evidence is frequently deemed inadmissible. Courts have offered two justifications for the strict restrictions on third party guilt evidence: (1) to prevent juror confusion and (2) to guard against fabricated statements by third parties. We explain why these fears are unfounded, and then turn to the focus of this Article: the importance of narrative relevance. Existing evidentiary restrictions fail to consider the role third party guilt evidence plays in shaping the narrative, or story, that the defendant will present to the jury in his defense. Empirical studies have shown that--more than legal standards, definitions or instructions--narrative plays a key role in the juror decision-making process. Without a thorough understanding and consideration of the narrative relevance of third party guilt evidence, restrictions on its use cannot be and are not being appropriately applied because they fail to account for the way in which jurors actually think and process information at trial.

After discussing the importance of narrative relevance, we propose a new test which is more consistent with a defendant's constitutional right to a fair trial and to present a complete defense. First, the threshold test for admissibility should be probable cause. If the evidence proffered by the defendant would permit the state to proceed with a criminal prosecution against the third party, then the defendant must be permitted to tell the story of third party guilt. A story for the goose is a story for the gander. Once the threshold test is satisfied, we propose that, with one significant exception, a defendant should be permitted to admit third party guilt evidence if that same evidence would be admissible against the third party were he the defendant. The exception is propensity evidence, as there is no need to balance the probative value of the third party guilt evidence against the danger of unfair prejudice because the third party suffers no prejudice by the admission of the evidence at a trial in which he is not the accused. Thus, admission of propensity (or other character) evidence concerning a third party should not be precluded.

"The universe is made of stories, not of atoms." (1)

INTRODUCTION

Bobby Lee Holmes was well known by the York, South Carolina police department as a troublemaker. (2) Just eighteen years old, he stood six feet, two inches tall and was an athletic 235 pounds. He did not appreciate that Officer Grady Harper was trying to break up his New Year's Eve party. This was not the first time Harper or other police officers had trouble with Holmes. And the local gendarmes suspected that Holmes was involved in a series of local thefts for which they had secured arrest warrants. (3)

On this particular occasion, December 31, 1989, Officer Harper responded to a call regarding a disturbance at the Cannon Court apartment complex and found Holmes drinking beer and arguing loudly with another man in a crowded parking lot. (4) Harper told the group to break it up and go home. (5) Most complied, but Holmes was not one to go quietly. He refused to leave and chose instead to taunt Harper with what Harper thereafter described as "a few choice words." (6)

Harper went back to his car and called for backup. Instead of waiting around for additional officers to arrest him, Holmes jumped into the back seat of his friend Terrance Digsby's car and the two fled. (7) Within minutes, however, Harper and his backup caught up with the two men and signaled the car to stop. As Digsby brought the car to a halt, Holmes jumped out and ran again. (8) Harper stayed with the car and arrested Digsby while the backup officers pursued Holmes. As Holmes darted in front of the officers' patrol car and rounded the corner of a churchyard, the officers jumped from the car and pursued him on foot. (9) They chased Holmes until he ran through some tall weeds near the roadside, jumped into a ditch, and disappeared. It was 5:20 a.m. (10)

Sometime later that morning, between 6:00 and 7:00 a.m., Mary Stewart heard someone knocking at the front door. Ms. Stewart was eighty-six years old and lived in an apartment about a mile from Cannon Court. When she opened the door, an unidentified man burst into Ms. Stewart's home and began to beat her in the head while demanding money. Ms. Stewart told him that her money was in her purse. The perpetrator took forty dollars from the purse and then pushed her into the bedroom where he anally raped her. (11) Then, the man tore the telephone from the wall in Ms. Stewart's living room and left. When her attacker was gone, Ms. Stewart took a shower "to get the nasty off" and called her friend, Maggie Thrasher. (12) Ms. Thrasher called another friend, Alaine Byers, who drove to the police department for help. (13) Ms. Stewart lived long enough to describe her attacker as "a short, dark skinned fellow, chunky wide," in his late twenties, and with "kind of long hair," (14) but a head injury she sustained during the attack eventually caused her to fall into a coma. (15) She died ten weeks later, having never regained consciousness. (16)

The first officers to arrive at the scene began collecting evidence from Ms. Stewart's apartment. (17) Officer Dale Edwards collected a single paper towel from Ms. Stewart with which she had cleaned herself after the attack. (18) Edwards also gathered Ms. Stewart's nightgown, robe, and slippers from the bathroom floor where she had dropped them and tossed them into a brown paper bag he found under her kitchen sink. (19) Lieutenant Barnett helped Edwards to fold Ms. Stewart's bed sheets and pillow cases and placed them together in another paper bag. Neither man wore gloves. (20)

At 8:46 a.m., Captain William Mobley arrived and took charge of the investigation. He locked himself inside the apartment and told the other officers to leave so that he could finish processing the scene by himself. (21) Alone inside the apartment, Captain Mobley took photographs and dusted for fingerprints. He collected additional evidence, including a second paper towel which he claimed to have found in Ms. Stewart's bathroom trash can. (22) Like Edwards and Barnett, Mobley failed to wear gloves throughout the evidence collection process. Captain Mobley took all of the evidence he had gathered back to his office and placed it on his desk where, the next day, he inventoried it by sifting through the bags and documenting it in an evidence log. Again, Mobley did not wear gloves, nor did he wash his hands between handling individual items of evidence. (23)

Back at the station, Officer Harper reported that Bobby Lee Holmes had eluded police that morning at Cannon Court, about a mile from Ms. Stewart's home. By 11:30 a.m., Captain Mobley had decided that Holmes, the known troublemaker who had gotten away, was his prime suspect in Ms. Stewart's attack. (24) Mobley did not waste time. Although he had no evidence linking Holmes to the crime, Mobley set out immediately to find him. At 2:00 p.m. that same day, Mobley and Sergeant James Smith found Holmes at home with his father in their apartment and arrested him--ostensibly not for the assault on Ms. Stewart, and not for his conduct early that morning when he ran from police, but for the outstanding theft warrant. (25) Holmes was asleep in his bedroom. Mobley later testified that Bobby's father, Willie Holmes, showed the officers to the bedroom door: "the door opened and Bobby Holmes was standing there. He had on a black hooded kind of pull-over type sweat shirt on and was in his underwear and white socks on." (26)

Mobley told Holmes he was under arrest and directed him to get dressed: "While he was getting dressed, Sergeant Smith was standing there and noticed a blue and white striped tank top laying in a chair at the foot of the bed. And at that time Sergeant Smith noted to me that it appeared the tank top had some blood on it." (27)

The officers asked Holmes where the blood had come from and he told them he had been in a fight the night before: "As a result of that, we asked both Willie Holmes and them if they had any objection if we took that tank top with us." (28)

Willie Holmes supposedly said it was fine for the officers to take the shirt. Bobby Holmes said nothing. At the station, the officers also took the blue jeans, black sweatshirt, socks and underwear that Holmes was wearing at the time. (29) The investigation was essentially over in less than twenty-four hours. Two months later, the State charged Holmes with criminal sexual conduct, robbery, burglary and murder. (30) The prosecutor subsequently filed a notice of his intention to seek the death penalty. Although the prosecution offered Holmes a very favorable plea bargain which would have resulted in his release after just a few years incarceration, Holmes said no and demanded a jury trial.

Lacking a confession or any eyewitness testimony, the State's case against Holmes was based entirely on forensic evidence. First, the State presented evidence...