Admissibility of Prior Criminal Allegations as Evidence under Federal and Michigan Law

Author: LegalEase Solutions


Introduction

Plaintiff should be able to introduce evidence of the defendant’s prior criminal acts not for the truth of the allegations, but to establish his state of mind and/or to prove an improper motive, a discriminatory or fraudulent intent, and a wrongful pattern or practice, respectively, on the part of the defendant.

Argument

TESTIMONY REGARDING DEFENDANT’S CRIMINAL ALLEGATIONS SHOULD BE INTRODUCED AS IT IS ADMISSIBLE UNDER THE FEDERAL RULES OF EVIDENCE

The general view of the federal courts with regard to relevancy of evidence is that for evidence to be relevant, it does not by itself have to prove the ultimate proposition for which it is offered; nor does it have to make that ultimate proposition more probable than not. It is enough that the evidence has a tendency to make a consequential fact even the least bit more probable or less probable than it would be without the evidence. The question of relevance is thus different from whether evidence is sufficient to prove a point. See  Douglass v. Eaton Corp., 956 F.2d 1339 at 1344 (6th Cir., 1992) (a Trial Court ruling on whether evidence is relevant may not consider the sufficiency or weight of the evidence; even if the evidence is insufficient to prove the point for which it is offered, the Trial Court “may not exclude the evidence if it has even the slightest probative worth,” unless some other Rule such as 403 warrants exclusion).

The Federal Rules of Evidence, Rule 402 reads as follows:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

       Rule 402 makes it clear that all relevant evidence is admissible, except as otherwise provided by the Constitution, federal statute, or valid Supreme Court-promulgated rules. All evidence that is not relevant is inadmissible.

The Federal Rules of Evidence, Rule 403 states as follows:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The Rule ensures that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

  1. PRIOR CRIMINAL ALLEGATIONS ARE RELEVANT AS TO EFFECT THEY HAD ON PLAINTIFF

          Rule 404(b) of the Federal Rules of Evidence states in part that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident….

While Federal Courts have recognized the “other act” concept, precedent has established that counsel who wishes to introduce evidence of other crimes or bad acts in a civil case must show that the purpose of this evidence is not to prove the bad character of the opposing party and conformity therewith in the instant case, but instead to prove a contested issue, such as whether the opposing party had a certain intent or plan, or particular knowledge. Courts have admitted evidence of prior misconduct in civil cases to prove an improper motive, a discriminatory or fraudulent intent, and a wrongful pattern or practice, respectively.

In Huddleston v. U.S., 485 U.S. 681, 108 S. Ct. 1496, 99 L. Ed. 2d 771, 25 Fed. R. Evid. Serv. 1 (1988), the United States Supreme Court has established a four-part test for the admissibility of Rule 404(b) evidence, which is also known as “other-act” evidence. Pursuant to this test, the trial court: (1) determines whether counsel offers the evidence for a proper purpose, or merely to show a bad character; (2) decides whether the evidence is relevant; (3) weighs the probative value of the evidence against the risk of unfair prejudice that the evidence poses; and (4) on request of counsel instructs jurors regarding the limited purpose for which they can consider this evidence. Id. at 691.

In Huddleston v. U.S, supra, the Petitioner challenged his conviction of possessing stolen property in interstate commerce in violation of 18 U.S.C.S. §  659, on grounds that the trial court improperly admitted evidence of “similar acts” involving petitioner’s previous sale of stolen televisions, on the issue of petitioner’s knowledge, under Fed. R. Evid. 404(b). The intermediate court affirmed, and on certiorari, the court affirmed the intermediate court’s decision, holding that the trial court properly allowed the evidence to go to the jury. The court held that the trial court was not required to make a preliminary finding that respondent had proved commission of the similar acts by a preponderance of the evidence.  Id. at 491. Rather, the trial court had only to determine that the evidence was offered for a proper purpose under Fed. R. Evid. 404(b), that its probative value outweighed its potential for prejudice under Fed. R. Evid. 403, and that it was relevant. Th Supreme Court held that the trial court properly concluded that the evidence was relevant under Fed. R. Evid. 402, as enforced through Fed. R. Evid. 104(a) and (b), because the jury could reasonably have found, by a preponderance of the evidence, that the televisions were stolen.  Id.

In Hammann v. Hartford Acc. and Indem. Co., 620 F.2d 588,(6th Cir.1980), the Court observed that the trial court entertains broad discretion in making a determination of admissibility under Rule 404(b). ( See also United States v. Bloom, 538 F.2d 704 (5th Cir. 1976).

The 6th Circuit Court has on many occasions instances agreed that a prior criminal behavior was probative and admissible under Fed. R. Evid. 404(b). See the unpublished opinion In Whitis v. United States, 1995 U.S. App. LEXIS 22308 (6th Cir., 1995) where the  Defendant contended that the district court erred in allowing evidence of an alleged prior crime. The Court found that  there were many similarities between the prior incident and the instant incident as to constitute a unique modus operandi. Further, the district court properly considered whether the probative value of the evidence was outweighed by the evidence’s potential for prejudicial effect, pursuant to 403.

Courts have laid down in a line of decisions and in various facts and circumstances, that the “other act” principle has to be governed by a “two-step analysis”. One such case was the unpublished opinion in United States v. Niece, 1993 U.S. App. LEXIS 27327, where the Court reiterated this principle. The Court observed that “Before admitting “other act” evidence under Rule 404(b), the court must undertake a. two-step analysis. First, it must determine whether the evidence is admissible for a proper purpose. Citing United States v. Feinman, 930 F.2d 495, 499 (6th Cir. 1991).”The evidence must relate to a matter which is in issue and must deal with conduct substantially similar and reasonably near in time to the offenses for which the defendant is being tried.” Id. The proffered evidence meets the test of admissibility for a proper purpose if the “evidence is probative of a material issue other than character.” Id. (quotingHuddleston ,supra)
The second step of the analysis laid down, requires the court to balance the probative weight of the evidence against the dangers referred to in Rule 403.  If the unfairly prejudicial effect of the “other act” evidence predominates over its probative value, then the trial court must reject it. See United States v. Rodriguez, 882 F.2d 1059, 1064 (6th Cir. 1989), cert. denied, 493 U.S. 1084, 107 L. Ed. 2d 1048, 110 S. Ct. 1144 (1990).

In Waters v. Kassulke, 916 F.2d 329 (6th Cir. 1990) the Court recognized that extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor’s state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct.  Id. at 336.

In United States v. Bakke, 942 F.2d 977,(6th Cir. 1991), Defendants were involved in a conspiracy to sell marijuana in Michigan that they had transported from Florida. One defendant had kept detailed notes of the transaction which the police seized and later used in trial. That defendant pled guilty and testified on behalf of the government. Another defendant was arrested by another jurisdiction and pled guilty to the charge of possession of marijuana. The defendants were indicted and went to trial for the large-scale conspiracy and at trial, the government introduced the prior out-of-state arrest of the individual defendant and his subsequent plea. The district court gave a limiting instruction to the jury, and noted that this evidence was not to be used against the other defendants. The jury found them guilty and they appealed. The one defendant claimed that the introduction of his arrest and plea violated Fed. R. Evid. 404(b), and the other defendants claimed that evidence had an improper spill-over effect. The court found that the limiting instructions given by the district court were proper and cured any possible problem with the admission of otherwise questionable evidence against all defendants. The convictions were affirmed.  Id. at 983-985.

The Court specifically relied on United States v. Blankenship, 775 F.2d 735, 739 (6th Cir. 1985), where it had been held:

When the prosecution claims such evidence is offered for a permissible purpose, the trial court must make two inquiries before admitting the evidence. First, it must determine that the evidence is relevant; that is, the evidence must relate to a matter which is “in issue,” and must deal with conduct substantially similar and reasonably near in time to the offenses for which the  defendant is being tried. United States v. Ring, 513 F.2d 1001, 1005 (6th Cir. 1975). Even if the relevancy criteria are met a trial court has discretion to exclude the evidence if “its probative value is substantially  outweighed by the danger of unfair prejudice. . . .” Rule 403, Fed.R.Evid.;

In Udemba v. Nicoli, 237 F.3d 8, 171 A.L.R. Fed. 767 (1st Cir. 2001), in which an arrestee in a §  1983 action asserted false arrest and excessive force claims against the town and two police officers, the court held that evidence that the arrestee had been arrested a year and a half later for striking his wife was relevant to the issue damages attributable to the plaintiff’s emotional distress claim and thus was admissible under Rule 404(b). Id. at 16.

Federal Courts have also found to be admissible evidence relating to fear and intimidation caused in the declarant’s mind. In United States v. Alzanki, 54 F.3d 994 (1st Cir. 1995) Defendant was convicted of holding a household employee in involuntary servitude pursuant to 18 U.S.C.S. §§ 371 and 384.  Defendant argued that the district court erred in admitting a witness’ testimony concerning Defendant’s abusive behavior toward his wife, because Rule 404(b) absolutely bars “other acts” evidence relevant only to prove criminal propensity or character. The Court disagreed with Defendant.  Id. at 1007.

The Court explained that Rule 404(b) bar is not implicated unless the challenged other crimes, wrongs, or acts are relevant exclusively to instigate an inference that the defendant is more likely to have acted in similar fashion by committing the offense for which he is on trial.  Id.  The Court reasoned that by contrast, the evidence admitted in this case bore special relevance to a pivotal element of the alleged offense quite apart from appellant’s propensity to commit wrongful acts; viz., the reasonableness of the witness’ stated fear that she would be a target of Defendant’s physical violence should she disobey him. Id.  See also United States v. Oreto, 37 F.3d 739, 749 (1st Cir. 1994) (evidence of victim’s awareness of defendant’s prior bad acts against third parties is especially relevant to an element of the offense, i.e., the reasonableness of the stated basis for the victim’s fear) (citing United States v. DeVincent, 546 F.2d 452, 456-57 (1st Cir. 1976), cert. denied, 431 U.S. 903 (1977)), cert. denied, 115 S. Ct. 1161 (1995).

Similarly in  United States v. Gigante, 729 F.2d 78 (2d Cir. 1984), the Court held that evidence that the debtor believed a loanshark had organized crime connections, and evidence of other credit transactions, was admissible to show the reasonableness of the debtor’s fears. Id. at 84

The Court’s decision in Jay Edwards, Inc. v. New England Toyota Distrib., 708 F.2d 814 (1st Cir. 1983) is very relevant to the case at hand. An automobile dealership sued its distributor claiming that the distributor engaged in several bad faith actions against it. The Court found that evidence that the distributor engaged in harsh treatment against other dealers who had joined the plaintiff in forming an ”Alliance” was properly admitted. Id. at 821.  The Court reasoned that the evidence, by suggesting a pattern of retaliatory practices against Alliance members, it was probative of Defendant’s motive and intent, and its possible bad faith, in dealings with Plaintiff.  Id.

The fearful state of mind of the declarant was also held admissible in United States v. Williams, 343 F.3d 423 (5th Cir. 2003) wherein affirming the conviction of a deputy sheriff for shooting an unarmed, apprehended suspect in the back, and thereby depriving him of his civil rights, the Court found no abuse of discretion when the suspect was permitted to testify that he fled from the defendant because he knew the defendant had previously shot another man.  Id. at 437.  Although the defendant argued that the victim’s state of mind was irrelevant, the Court concluded that the suspect’s knowledge or belief about the defendant was relevant in assessing whether the suspect would have acted as the defendant claimed or as the government claimed. Id.

  1. TESTIMONY OF PLAINTIFF AS TO DEFENDANT’S CRIMINAL ALLEGATIONS IS AN EXCEPTION TO THE HEARSAY RULE

As defined under USCS Fed Rules Evid R 801  “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

USCS Fed Rules Evid R 803 includes in its ambit exceptions to the hearsay concept and more specifically excludes under Sub Rule (3) a statement of the declarant’s  then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

In Ray Prather v. Carey Prather, 650 F.2d 88; 1981 U.S. App. Lexis 11672, the Court noted that:

There is very little precedent in this Circuit or elsewhere on the scope of the state of mind exception to the hearsay rule. However, it is clear that before a statement, otherwise hearsay, can be admitted under 803(3) to show the declarant’s then existing state of mind, the declarant’s state of mind must be a relevant issue in the case.  United States v. Ponticelli, 622 F.2d 985, 991 (9th Cir. 1980); Furthermore, determining whether the declarant’s state of mind is relevant is a question for the court.  United States v. Ponticelli, 622 F.2d at 991.

            In Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, (1892),Plaintiff sought recovery from three separate defendant insurance companies who issued life insurance policies on her husband. Plaintiff claimed that her husband was killed in an accidental shooting and his body was buried following an inquest. Defendants claimed that the body was that of the deceased’s traveling companion and not the deceased himself. The United States Supreme Court found that exclusion of defendants’ introduction of the traveling companion’s letters to his fiance for the purpose of establishing his intent to accompany the insured was error. The Court indicated the expressed intentions were verbal acts reliable for proving a then existing state of mind from which a jury could decide reliability. The Court found that the lower court’s allocation of only three peremptory challenges among defendants was error because defendants each had the right to three challenges and consolidation for purposes of judicial economy did not divest them of their individual rights. The Court reversed the judgment against defendants because it was error to exclude letters as evidence of a then existing state of mind and error to allocate three peremptory challenges in a consolidated action when each defendant, individually, had the right to three challenges.  The Court held:

Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence. Those expressions are the natural reflexes of what it might be impossible to show by other testimony. If there be such other testimony, this may be necessary to set the facts thus developed in their true light, and to give them their proper effect. As independent explanatory or corroborative evidence, it is often indispensable to the due administration of justice. Such declarations are regarded as verbal acts, and are as competent as any other testimony, when relevant to the issue. Their truth or falsity is an inquiry for the jury.  Id at 296.

The Federal Courts, 6th Circuit in a line of decisions has held that under Rule 803(3) a “statement of the declarant’s state of mind” is admissible. In United States v. Williams, 704 F.2d 315, (6th Cir.,1983),the Defendant sought review of his conviction for an attempt to possess cocaine in violation of 21 U.S.C.S §§ 844, 846. The court found that statements made at the trial regarding defendant’s intent to perform a future act was affirmatively qualified by two conditions subsequent and therefore properly precluded. Id. at 322.  The court affirmed defendant’s conviction for attempt to possess cocaine because compelling defendant to read a neutral passage for voice identification at his trial did not come under constitutional scrutiny and was permissible. Id.  The Court held, “Rule 803(3) statements are not excluded by the hearsay  rule even though the declarant, in this case Williams, is available as a witness. A statement of intent to perform a future act is a state of mind exception to the hearsay rule.”  Id.