NCJ Number
61684
Journal
Case and Comment Volume: 84 Issue: 5 Dated: (SEPTEMBER/OCTOBER 1979) Pages: 46-50
Date Published
1979
Length
5 pages
Annotation
PRACTICAL PROBLEMS IN THE TRIAL OF A RECIDIVIST ARE DISCUSSED REGARDING THE INTRODUCTION OF PROOF OF OTHER CRIMES.
Abstract
IN DEALING WITH REPEAT OFFENDERS, PROSECUTORS ARE ORGANIZING SPECIALIZED TRIAL DIVISIONS--CAREER CRIMINAL UNITS--STAFFED WITH EXPERIENCED TRIAL LAWYERS WHO ONLY HANDLE CASES AGAINST REPEAT OFFENDERS. THIS TARGETING OF RECIDIVISTS LEADS TO INCREASED EFFORTS TO USE PAST CRIMES TO PROVE ELEMENTS OF ONE CHARGE GOING TO TRIAL. THE ADMISSION OF EVIDENCE OF OTHER CRIMES AT TRIAL IS NOW GOVERNED BY RULE 404(B) OF THE FEDERAL AND UNIFORM RULES OF EVIDENCE. WHILE EVIDENCE OF OTHER CRIMES IS NOT ADMISSIBLE TO PROVE BAD CHARACTER, IT IS ADMISSIBLE FOR OTHER PURPOSES, SUCH AS PROOF OF MOTIVE, OPPORTUNITY, INTENT, PREPARATION, PLAN, KNOWLEDGE, IDENTITY, OR ABSENCE OF MISTAKE OR ACCIDENT. IN MAKING JUDGMENTS IN THIS AREA LEGAL COMMENTATORS AGREE THAT THE TRIAL JUDGE MUST CONSIDER (1) THE NEED FOR THE EVIDENCE (HAS THE PROSECUTOR ALREADY PROVED THE ISSUE BY OTHER VIOLENCE OR HAS THE DEFENDANT CONCEDED IT); (2) STRENGTH OF PROOF OF OTHER CRIMES (CLEAR AND CONVINCING EVIDENCE OF OTHER CRIMES MUST EXIST); (3) PERSUASIVENESS OF PROOF (RESEMBLANCE OF OFFENSES AND REMOTENESS); AND (4) RISK OF PREJUDICE TO THE ACCUSED (NEED AND RELEVANCE MAY OUTWEIGH PREJUDICE). BEFORE PRESENTING THE EVIDENCE, THE PROSECUTOR SHOULD MAKE AN OFFER OF PROOF OUT OF THE HEARING OF THE JURY FOR A RULING ON ADMISSIBILITY. THE TRIAL JUDGE SHOULD EXERCISE CONTROL OVER THE PROOF OF THE OTHER CRIMES TO PREVENT THE PROSECUTOR FROM ACTING IMPROPERLY IN PROVING THEM. THE JURY MUST ALSO BE INSTRUCTED AS TO THE USE OF PROOF OF OTHER CRIMES AND THE USE OF THE INFERENCE THEY ARE BEING ASKED TO DRAW BY THE PROSECUTOR. FOOTNOTES ARE PROVIDED. (RCB)