A Legal Overview of Extraneous Information in Criminal Trials

A Legal Overview of Extraneous Information in Criminal Trials

The Fifth and Sixth Amendments to the U.S. Constitution create due process, a presumption of innocence, and the right to confront one’s accusers. Their collective impact is to generally limit what the jury is told to only evidence directly related to the alleged crime in question. This comment briefly overviews the use of extraneous information in criminal cases. Always consult an experienced attorney in specific situations.

A criticism of the current criminal trial process is that the jury is not told “everything” about the criminal defendant. However, could even a truly innocent person defend themselves from a tidal wave of speculation, rumor, and character assassination? If a prosecutor were to say to a criminal trial jury, “if you knew what I know, you would vote to convict,” a conviction would likely be reversed by an appellate court. The same is true if the prosecutor introduced into evidence the criminal conviction records of the defendant’s parents and argued “the apple does not fall far from the tree.” Even more directly, suppose the alleged criminal offense is theft and the prosecutor introduced into evidence five speeding tickets issued to the accused and argued “the defendant is clearly a lawbreaker.” So, what and where are the general lines that our legal system draws in the introduction of evidence at a criminal trial and are these reasonable standards?

In simplified overview, the conduct complained of that the criminal trial is to address must be specified in the indictment and the conduct introduced into evidence must be an essential part of the charged offense. In general, evidence of character, good or bad, is not admissible on the question of guilt or innocence although it might be introduced at sentencing to determine the appropriate punishment within a range of punishment. A typical judge will evaluate the admissibility at trial of proposed evidence by determining if it assists the jury in determining the facts in question and how that assistive value balances against creating prejudice against the defendant in the mind of the jury.

Clever trial attorneys may attempt to introduce inadmissible evidence simply to draw an objection from the other side and plant in the mind of the jury that facts are being hidden and the jury is not hearing the complete story. To prevent this, a pretrial “motion in limine” (“on the threshold”) is made to prevent specified actions from occurring with a determination by the trial judge that such actions will result in contempt of court or a mistrial being granted.

Contemporary statutes address specific situations such as sexual crimes involving children and these statutes allow evidence of other such events to demonstrate that the acts complained of are consistent with the character of the defendant. However, the prosecutor must give the defense advance notice of this intention to introduce evidence. In a murder case, the previous relationship between the accused and victim may be introduced into evidence to show the defendant’s state of mind and to place the killing in context.

Beyond specific statutes, unrelated (extraneous) offenses might be introduced into evidence to demonstrate preparation, opportunity, motive, intent, planning, identity, knowledge, and the absence of the offense being a mistake or accident. Hence, one must have an experienced attorney evaluate a given state’s law.

A not uncommon blunder by the defense is “opening the door” to the prosecutor introducing evidence of extraneous offenses in rebuttal of a defendant’s assertion. In a simplified example, if the defendant were to testify that “I have never hurt anyone,” the prosecutor could likely introduce evidence of a prior conviction for assault and battery. Note that this is a different assertion than the defendant simply denying that she or he committed the accused conduct. This also must be distinguished from admitting the conduct and offering an innocent explanation that will open the door to rebuttal evidence. This is a complex issue that must be thoroughly considered before an accused individual testifies. However, as a general principle, I believe that the defendant always needs to testify as a jury almost without exception wants to observe and hear from the accused.

As one illustration of the complexity of the admissibility of evidence, consider the issue of identity. Firstly, the identity of the perpetrator must be in dispute. If so, other offenses by this accused might be admissible in evidence to show a “modus operandi” (method of operation) that uniquely distinguishes the criminal acts of the accused. The argument follows that it is unlikely that another person would consistently duplicate these special characteristics. DNA evidence at the scene of multiple offenses provides a unique “gold standard” signature-like characteristic although time, place, and a common operational manner proximity may be sufficient. Again, the defense may “open the door” for the prosecutor by aggressively cross-examining a prosecutor’s identification witness. Alibi evidence may sometimes also open the door.

The accused may attempt to negate an essential element of the prosecutor’s case by asserting, for example, self-defense, entrapment, consent, or the fabrication of the alleged offense. In these situations, the evidence of other offenses is acceptable to make the asserted defense less probable in the mind of the jury. Typically, any defensive assertion by the accused may be rebutted by the prosecution. Once again, an opening statement to the jury must be carefully prepared since asserted defensive theories or hinted-at evidence may be rebutted by evidence of other offenses.

A somewhat old fashioned legal term, “res gestae” (things done), may refer to statements made while an event unfolds and to the sequence of events in a criminal episode. Historically, the general standard for admissibility of this evidence was more relaxed. Today, the primary reason for admissibility is that the charged offense will only “make sense” when placed in context.

The so called “Chewbacca defense” attempts to confuse the jury with irrelevant information. The prosecution may respond with the “true” context of the alleged offense. In like manner, claiming ignorance of facts that this individual might be expected to know (due to position, education, or experience, for example) may allow rebuttal evidence that otherwise would not be admissible. Sometimes offenses are so blended that they must be presented together. For example, a victim was stabbed in the course of being robbed. However, evidence that the accused was in possession of unlawful drugs when arrested that were allegedly purchased with the victim’s money would be too remote an offense to be admissible.

The criminal justice system is not brittle with convictions being reversed on trivial technicalities. A trial judge has discretion in many evidentiary situations. Additionally, the judge’s admonitions to the jury during the trial or in the instructions prior to the jury’s deliberations may cure, at least in theory, many potential issues. An appellate court does not substitute its judgment for that of the trial judge if there is any legal basis for the trial judge’s actions. Hence, many appellate courts apply a “harmless error” standard. Yes, the trial judge made a mistake but it did not undermine a defendant’s “substantial rights.” An error-free trial is not demanded. However, there is the possibility of a conviction being reversed due to ineffective assistance of counsel on Sixth Amendment grounds when the defense attorney is blatantly incompetent in not objecting to the admission of clearly prejudicial extraneous actions. This is rare.

Due to the availability of information and the increasing use of social media, it is difficult to keep juries sheltered during a trial. Changes in procedural rules must recognize this new reality. My January 2012 Huffington item, “It Is Time to Rethink Jurors’ Access to Information,” addressed this issue.

This comment provides an incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney in specific situations.

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