Third-party Guilt

• Publication year: 2021

76 Nebraska L. Rev. 272. Third-Party Guilt

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Stephen Michael Everhart*

Putting a Burden of Production on the Defendant Before Admitting Evidence that Someone Else Committed the Crime Charged: Is It Constitutional?

TABLE OF CONTENTS

I. Introduction 273
II. The Cases and Tests 275
A. The Relevancy Test 277
B. The Connection Test 279
C. The 403 Test 281
D. The Balancing Test 282
E. The Reasonable Doubt Test 283
F. Combination of Tests 283
III. Burdens, Affirmative Defenses, and Defense Rights 285
A. Burdens of Proof and Affirmative Defenses 286
B. The Constitutional Right to Admit Third-Party
Guilt Evidence 293
IV. Conclusion 299

"It is better to risk saving a guilty man than to condemn an innocent one." -Voltaire(fn1)

I. INTRODUCTION

Suppose you are charged with a crime, but you are innocent. You know you did not commit the offense, and you have evidence indicating someone else is guilty of the charged crime. Can you introduce that evidence at your trial? Cornelius Perry could not.

Perry was accused of assaulting a woman in Golden Gate Park, near San Francisco. The victim, who was walking through the park, stopped a man who was jogging to ask for directions. The man then began walking with the victim and offered her money from his wallet. The victim refused the money, at which time the man attacked her. The screams of the victim attracted bystanders. A witness chased the attacker and then went to a nearby police station to ask for help. As the witness was leaving the station, he saw a man, Cornelius Perry, standing with his dog on the sidewalk. The witness told the police that Perry was the man he had been chasing.(fn2)

At his trial, Cornelius Perry testified that he had never entered the park that day. Perry wanted to support his defense by introducing evidence that another man, Wolfe, might have committed the assault and that the victim was confusing Perry with Wolfe. Perry's proffered evidence consisted of the testimony of two witnesses who had been robbed and raped by Wolfe in the same area of the park. One of these attacks occurred exactly three years earlier, and the second occurred only an hour before the assault with which Perry was charged. Perry and Wolfe were both black men of similar height and weight. They both had a distinctive "sectionally braided" hairstyle on the day of the assault. On the afternoon of the assault, Wolfe was wearing a brown leather jacket and blue jeans; Perry wore a light brown jacket and blue warm-up pants. Furthermore, Wolfe had been convicted of both of the previous attacks at the time of Perry's trial. Based on Califor-nia Rule of Evidence 352, the trial court excluded Perry's evidence that Wolfe may have been the assailant. California Rule of Evidence 352, virtually identical to Federal Rule of Evidence 403, prohibits the introduction of evidence that may unfairly prejudice a party.(fn3)

The Court of Appeals for the Ninth Circuit upheld the trial court's decision, stating that "[t]he issue was not credibility, but the probity of the evidence compared to its tendency to divert the trial and confuse the jury."(fn4) The Ninth Circuit also stated that "the evidence offered by

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Perry was not so closely connected to the issue of his guilt or innocence that its exclusion, based on its lack of probity and its tendency to confuse the jury, violated due process or the right of compulsory process."(fn5) The Court concluded that "Perry's evidence . . . is sufficiently collateral and lacking in probity on the issue of identity that its exclusion did not violate the sixth and fourteenth amendments. California may constitutionally require more cogent evidence than this before opening up collateral issues at trial."(fn6) Perry's proffered evidence contained neither a confession of the third party nor a modus operandi unique to both Wolfe's prior crimes and the crime with which Perry was charged. In the court's opinion, the quantum or amount of Perry's evidence indicating someone else committed the charged crime was not only not cogent, it was insufficient.

In contrast, Christopher Lynn Johnson did have more cogent evidence. Johnson was charged with burning down the Randolph County High School, in Wedowee, Alabama. At his trial, Johnson wanted to admit evidence showing that the school principal, Hulond Humphries, committed the charged crime. Johnson argued the evidence would show that Humphries caused considerable controversy when he stated that he would rather cancel the school's prom than allow interracial couples to attend. Humpries' statement and the surrounding controversy and racial tension may have motivated a movement to remove Humphries as principal of the high school. Johnson urged that Hum-phries may have been motivated to torch the school because of anger over interracial dating at the school and the possible loss of his job. Johnson also wanted to admit evidence that Humphries, the week before the fire, bought five gallons of gasoline and removed several personal items from his office at the school. Other proffered evidence tended to show that Humphries was alone at the school for nearly one hour, approximately three hours before the fire. Finally, Johnson wanted to admit evidence that Humphries twice stated to FBI agents that he burned down the high school, although he quickly recanted each confession.(fn7)

Johnson's proffered evidence consisted of motive and opportunity evidence, as did Perry's. But, Johnson's evidence also consisted of a confession to a third party. In essence, the quantum of Johnson's third-party evidence surpassed Perry's. Johnson's defense evidence met a sufficiency standard and was admitted at trial. Perry's evidence failed to meet the requisite standard and the trial court declined to admit the evidence.

This Article considers the problem of admitting evidence of a third party's guilt. Part II will address several different approaches for

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dealing with the problem of admitting evidence of a third party's guilt and will argue that under these approaches or tests, two factors are critical to the admission of such evidence: (1) the nexus or connection between the third party and his commission of the charged crime, as demonstrated by the proffered evidence, and (2) the weight of that evidence or the strength of that connection. Part III will argue that under the prevailing approach in several courts, the burden of proof has been unconstitutionally placed on the wrong party-the defendant. This Article will argue that the burden is properly placed upon the state to oppose the introduction of evidence of a third party's guilt. This conclusion will be based on the following factors: (1) these defenses are not affirmative defenses, (2) these defenses go to a critical element of the government's case, to wit, the identity of the perpetrator, which the government constitutionally has the burden of proving, and (3) it is unconstitutional to burden the defendant with this obligation.

II. THE CASES AND TESTS(fn8)

Third-party guilt evidence, as indicated in Perry and Johnson, is not a fixed set of evidentiary pieces. Rather, such evidence represents a constellation of possibilities, either excluded or admitted by the piece or in its entirety. Sometimes motive evidence is excluded.(fn9) Sometimes opportunity evidence is excluded.(fn10) Sometimes evidence that a third party committed other similar crimes is excluded.(fn11) At

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other times, a third party's confession to the commission of the crime is admitted.(fn12) Courts may admit or exclude evidence that the third party looks like the accused(fn13) or that the third party possesses or has some connection with the property taken or destroyed.(fn14) But what is the benchmark for determining the admissibility of third-party guilt evidence when the constitutional rights of the accused clash with the right of the government to run its own trial?

Some courts use Federal Rule of Evidence 401 (or the state's analogue to 401) and the principle of relevancy to determine the admissibility of third-party guilt evidence.(fn15) Other courts use a connection test.(fn16) Some courts use Rule 403 (the prejudice rule) to exclude such

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evidence,(fn17) while still other courts use the United States Supreme Court's balancing test(fn18) in conjunction with a "critical and reliable" twist.(fn19) Others have adopted a reasonable doubt test,(fn20) while other courts apply a combination of all of the tests.(fn21) These various tests will be examined below.

A. The Relevancy Test

When applying the relevancy test, courts use Federal Rules of Evidence 401 and 402 (or their state analogues) to determine whether to admit or exclude third-party guilt evidence. Rule 402 provides that

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"all relevant evidence is admissible,"(fn22) and Rule 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."(fn23) Although these courts use the language of the "relevancy rules" when discussing the relevancy test, in effect they look to the weight and the sufficiency of the evidence in connecting the third party with the crime charged. Courts analyze the strength of the nexus between the proffered evidence and the guilt of the third party, and this analysis effectively places the burden of proof on the defendant.

In State v. McElrath,(fn24) the North Carolina Supreme Court used the relevancy test in determining the admissibility of third-party guilt evidence. McElrath wanted to admit a map of his summer home, which was found on the victim of the homicide. The defense theorized that the map indicated the victim had planned to burglarize the defendant's home and that one of the victim's co-conspirators, not the defendant, had killed...