Reconsidering the standards of admission for prior bad acts evidence in light of research on false memories and witness preparation.

• Author: Tortora, Jason

Introduction I. Prior Bad Acts Admissibility and the Incentives It Creates A. Origins of the Bar Against Prior Bad Acts Evidence and Its Exceptions B. Modern Jurisprudence and the Bar Against Prior Bad Acts Evidence 1. Huddleston v. United States C. Situating the Bar Against Prior Bad Acts Evidence Among the Rules of Evidence: A Story of Prejudice 1. Limiting Prejudice Is at the Roots of Many Rules of Evidence, and Is Effectuated Through Witness Preparation 2. The Bar Against Prior Bad Acts Evidence: Limiting Prejudice D. Courts Divided Along Fears of Undue Prejudice: Huddleston Leniency Versus Higher Standards E. Higher Standards of Proof of Commission Require Greater Amounts of Detail by Witnesses II. The Risk of False Memories and Misinformation A. Witness Preparation: Foundation of Trial Preparation and Potential Source of Falsehood 1. Witness Preparation Is Fundamental to Litigation 2. The Ethics of Witness Preparation B. Risks of Witness Preparation in Creating False Testimony 1. Analysis from Legal Scholarship: The Risks of Even Careful Witness Preparation 2. Psychological Research on Memory and Witnesses: Reason for Concern About False Testimony and More Questions III. Adopting Huddleston to Reduce the Risk of Prejudice A. The Minimal Benefits Requiring a Higher Standard of Proof of Prior Bad Acts B. The Risk of False Testimony Created by Requiring Greater Specificity by Witnesses C. Witness Preparation and the Rules of Evidence: Is Adopting Huddleston the Best Solution to a Difficult Problem? Conclusion INTRODUCTION

A prosecutor is handed a complaint charging harassment and a harrowed woman follows him into his office. The charges stem from an ex-boyfriend repeatedly making threatening calls to her over a recent weekend. She saved a voicemail where her ex-boyfriend said he expected to see her at a funeral. She then explains that two weeks earlier, he showed up at her door uninvited, called her names, and threatened her life before leaving when she threatened to call the police. On more than a dozen other instances over the past six months, she says he followed her by car, called and hung up, or waited outside her house. She can't give exact dates, and adds that when they were dating a year earlier, her ex-boyfriend hit her but she never reported it.

The prosecutor knows that the defendant is entitled to a jury trial on the harassment charge, reducing that charge is not an option, and it is a weak case. Having spoken with defense counsel, he knows that the defendant is not interested in taking any plea that would involve an order of protection for the complainant, and that he can't rightly plead the case without securing an order of protection. The case needs to go to trial, and yet it will require a Herculean feat to convince a jury to convict a man of harassment on the sole basis of a few phone calls and an ambiguous voicemail.

In order to convict the defendant, the prosecutor will need to show the jury evidence of the defendant's prior uncharged conduct towards the complainant to explain their relationship and the hostility of the phone calls. The People will be unable to prove the defendant's intent to terrorize without evidence of his prior phone calls and conduct towards the complainant. The complainant's memory is unclear, however, and she does not provide specific details or dates for the defendant's prior conduct. The prosecutor informs the complainant of the prospects at trial. He knows that the credibility, detail and likelihood of the prior conduct will determine whether the prior bad acts evidence will be admitted in his jurisdiction. (1) Whether the prior bad acts are clear and particularized may therefore decide the case before it is even begun. The prosecutor never suggests that the complainant do anything other than be truthful; the prosecutor does not even tell the complainant about the law on prior bad acts evidence's admissibility, obviating any incentive for the complainant to tailor her testimony. Nonetheless, the prosecutor tries to help the complainant remember more, probing deeper and deeper into the dates and circumstances of the prior events:

When the defendant followed you, were you working at the time? Would you have remembered if something unusual happened on your regular commute? When the defendant struck you, did he bruise you? Would someone at work have noticed if you were bruised? Would the bruise have been covered up because it was cold outside (i.e., winter)? And so on. While interviewing a witness, such as this hypothetical complainant, the prosecutor balances trying to gather information by probing the extent of the witness's recollection of past events with trying not to influence the witness's memory by introducing distortions. (2) The goal is ultimately to elicit as strong a recollection as the witness's memory will support so that the witness may testify confidently and honestly, and so that the prosecutor will be able to establish the necessary foundation for the evidence. In the above example, the issue is elucidating the victim's memory of uncharged prior bad acts by the defendant.

Prior bad acts evidence is any evidence or testimony regarding acts by the defendant that is not included in the conduct which brought about the criminal charges or civil claim. (3) This Note examines which standard of proof should apply to the commission of prior bad acts for their admission in criminal cases. The focus is on criminal cases because of the unique responsibilities of prosecutors, particularly in that they do not represent individual clients and instead seek convictions on behalf of the government.

Such evidence is generally referred to as "prior bad acts" (4) evidence, "uncharged misconduct" (5) evidence, or evidence of a "crime, wrong, or other act." (6) Prior bad acts evidence is governed by Federal Rule of Evidence (FRE) 404(b) in federal courts, and by varying approaches in state courts. (7) Jurisdictions have adopted different standards of proof for the commission of prior bad acts: some require that the prior bad acts be proven beyond a reasonable doubt or by clear and convincing evidence; others, including the Supreme Court, require only that a hypothetical reasonable juror be able to find by a preponderance of the evidence that the prior bad acts were committed by an opposing party. (8) Jurisdictions that require a greater showing of proof tend to argue that a higher standard is necessary to reduce the risk of prejudice. (9) In determining whether prior bad acts have been sufficiently proven, courts consider the detail of the testimony alleging the prior bad acts. (10)

The purpose of this Note is to further the debate among jurisdictions as they decide what standard of proof to adopt for prior bad acts evidence by discussing a source of prejudice to defendants that courts have not addressed. Specifically, this Note argues that jurisdictions should consider the risk of prejudice created by witness preparation as they decide the appropriate standard of proof for the commission of prior bad acts. (11) A higher standard of proof can incentivize more probing of a witness's incomplete memory during witness interviewing and preparation, which introduces a risk of false testimony through memory distortions that can outweigh the risk of prejudice from juries hearing evidence of prior bad acts that cannot be proven. (12) As a result, this Note argues that jurisdictions should adopt a minimal standard of proof to limit the risk of prejudice to the defendant.

The risk of prejudice created by witness preparation through the genesis of false memories is certainly not limited to instances when prosecutors and witnesses discuss a defendant's commission of prior bad acts. Insofar as witness preparation creates such false testimony, it implicates, arguably, every single rule of evidence. (13) This Note, however, focuses solely on the interplay of the prejudice of witness preparation and the standard of proof for prior bad acts evidence for two reasons. First, the latter is an unsettled area of law and is ripe for analysis. Second, this Note engages this one rule of evidence to draw attention to how the prejudicial risks of witness preparation may be included in future debates that reconsider other rules of evidence. (14)

This Note is concerned with the prejudicial risks of witness preparation that result when a defendant is confronted by witnesses who have developed false memories about prior bad acts because of extensive witness preparation. (15) Such witnesses are more difficult to cross-examine (16) and may seem more convincing to the jury--all as the result of a rule (17) that is intended to reduce prejudice. This Note will review legal scholarship and social psychology research to discuss how probing questions during witness interviews and preparation can introduce prejudice by creating false memories and memory distortions in the minds of witnesses.

Part I of this Note will discuss the history and nature of the rules of evidence surrounding prior bad acts evidence. Part II will discuss witness preparation and its risk of prejudice, particularly in the context of prior bad acts evidence. Part III will argue that state courts that have rejected the federal courts' approach to prior bad acts admissibility should instead adopt the federal approach to minimize the risk of prejudice to the defendant.

1. PRIOR BAD ACTS ADMISSIBILITY AND THE INCENTIVES IT CREATES

   1. Origins of the Bar Against Prior Bad Acts Evidence and Its Exceptions

      The bar against evidence of a defendant's uncharged prior bad acts has been in existence at common law in some form since the seventeenth century. (18) Initially, it emerged as a reaction to treason prosecutions in the "Star Chamber" in Great Britain. (19) In 1810, the judges in Rex v. Cole held that "in a prosecution for an infamous crime, an admission by the prisoner that he had committed such an offence at another time and with...