Circuit Criminal Trial and Evidence Practice Pointers

Publication year2021
Circuit Criminal Trial and Evidence Practice Pointers

Vol. 82 No. 1 Pg. 36

The Alabama Lawyer

January, 2021

Judge William H. Filmore, Tobie J. Smith, and J. Patrick Lamb

Most Often Cited Rule of Evidence: 404(b)

The first sentence of Alabama Rules of Evidence Rule 404(b) gives the general rule: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." But the rule goes on to say that it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The cases that are tried the most often are the ones with the most severe penalties. Rule 404(b) is most often seen in sexual assault cases involving children. This exception has been carved out in case law, as "[the Alabama Supreme Court has] held that evidence of similar collateral sex acts with a child was admissible under Rule 404(b) to prove that the appellant was 'motivated by an unnatural sexual desire for young girls.'"1 Needless to say, this evidence, if admitted, could be very damaging to the defendant. The court should conduct a hearing outside the presence of the jury under Rule 104(a) to determine what limits will be made to the testimony. Courts are not looking to try cases within cases. It is recommended that a limiting instruction should be given at the time of the testimony and again during the general charge. The instruction not only should attempt to limit the use of the evidence, but also attempt to explain the application of the burden of proof.

Whether the use of 404(b) is for propensity of similar collateral sex acts with a child, or for other purposes, the court should still perform a balancing test under Rule 403 to the evidence presented in each case. The court should examine the strength of the evidence, the need for the evidence, whether the evidence is too remote, the degree of similarity, and whether a limiting instruction will be sufficient.2 Remoteness may not be as big a factor in sexual assault cases.3 And, we don't need to forget that "the jury almost surely cannot comprehend the Judge's limiting instruc-tions."4 An example of a limiting instruction could be:

Ladies and gentlemen of the jury, there was evidence offered in this case in regard to other alleged specific conduct or acts on the part of the defendant other than the charge in the indictment in this case. That evidence is not offered nor allowed in for your consideration as evidence that the defendant committed the acts that are charged in this case simply because he may have committed some other similar act at the time not in issue in this case. This evidence cannot be considered by you in passing upon whether the defendant actually committed the acts charged in this case. Nor may it be considered by you in considering the character of the accused. Such evidence may be considered by you only in passing upon what the defendant's motive, if any, may have been at any time material to the issues in this case. The state is offering this evidence for the sole purpose of showing the defendant's unnatural sexual desire for young girls as defendant's motive to commit the crime charged in the present case.

Motions to Suppress Evidence

The most significant evidentiary rule in criminal cases might not even be in the rules of evidence. The exclusionary rule is a doctrine that "forbids the use . . . at trial" of evidence obtained in violation of the Fourth Amendment5 -if suppressing the evidence will "result in appreciable deterrence" of future Fourth Amendment violations.6 In some of the most commonly prosecuted crimes, such as unlawful possession of drugs, a weapon, or other contraband, the entire case turns on the admissibility of a single piece of evidence. If the evidence is suppressed, then the prosecution cannot prove the charge and will have no choice but to dismiss.

Despite that, lawyers often miss opportunities to suppress crucial evidence, even when doing so could drastically transform the complexion of the case, because they either do not look for those opportunities or do not recognize them. There can be many reasons for that: inexperience,7 unfamiliar-ity with the complexities of Fourth Amendment law, or simply an aversion to motions practice. But it really is not possible to effectively practice criminal defense, or to effectively prosecute crimes, without a basic understanding of Fourth Amendment rules, suppression practice, and the exclusionary rule.8

The law regarding unlawful searches and seizures is too elaborate to summarize here, but the basics of suppression practice are simple enough. Proving that a search or seizure was lawful-or unlawful (the party that bears the burden depends on whether the search was based on a warrant)9 -usually requires testimony and evidence that differs from, and would not be permitted as, trial evidence. So, an oral motion at trial will not do, and a written, pretrial motion is necessary.10

As for the deterrence rationale underlying the exclusionary rule, the mere fact of a Fourth Amendment violation provides an argument for suppression: "to compel respect for the constitutional guaranty in the only effectively available way-by removing the incentive to disregard it."11 But exclusion "doesn't follow automatically" from a Fourth Amendment violation;12 it also requires a showing that under the particular facts of the case, suppression would "deter[] officer misconduct and punish[] officer culpability . . . ."13 Ordinarily, that means a violation must have resulted from not just accidental or merely negligent disregard for Fourth Amendment protections, but rather "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence."14

At a suppression hearing, the prosecution usually should present its case first, a detail that frequently confuses judges and lawyers because of the fact that the hearing is on the defendant's motion. This order of presentation more naturally follows the burden of production and proof.15

Evidentiary Use of Police Reports

Police reports can be useful in a variety of ways, but are frequently misused. It is natural that prosecutors and defense attorneys alike will look to police reports as valuable...

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