Friday, February 13, 2009

A Court's Thoughts about an "Old Chestnut": Poverty as Evidence of Motive for Act such as Crime

United States v. Mitchell, 172 F.3d 1104, 1107-1110 (9th Cir. 1999) (trial for armed bank robbery):

Mitchell argues that evidence of a defendant's poverty is not admissible to show motive, citing an evidence treatise by Wigmore and several cases from other circuits such as Davis v. United States, 133 U.S. App. D.C. 167, 409 F.2d 453, 457-58 (D.C. Cir. 1969), United States v. Reed, 700 F.2d 638, 642-43 (11th Cir. 1983), and United States v. Zipkin, 729 F.2d 384, 390 (6th Cir. 1984). The government argues that evidence of financial condition is admissible to show motive under United States v. Feldman, 788 F.2d 544, 556-57 (9th Cir. 1986), United States v. Jackson, 882 F.2d 1444, 1449-50 (9th Cir. 1989), and United States v. Miranda, 986 F.2d 1283, 1285 (9th Cir. 1993). In her argument heading, the prosecutor also says the evidence was properly admitted under Federal Rule of Evidence 404(b). She notes that the jury was given a limiting instruction regarding use of the evidence.

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The government's characterization of the evidence as admissible under Federal Rule of Evidence 404(b) to show motive is meritless.

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The issue on evidence of poverty is whether it has any relevance, that is, "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." Fed. R. Evid. 401. Of course, relevant evidence may be excluded in the discretion of the trial judge "if its probative value is substantially outweighed by the danger of unfair prejudice." Fed. R. Evid. 403. The issue is whether the trial judge was within his discretion in admitting the evidence in this case under these two rules, not Rule 404(b).

The issue of evidence of poverty is something of an old chestnut in the law of evidence, so we do not write on a blank slate. Wigmore expresses the traditional suspicion of admitting evidence of impecuniousness:

The lack of money by A might be relevant enough to show the probability of A's desiring to commit a crime in order to obtain money. But the practical result of such a doctrine would be to put a poor person under so much unfair suspicion and at such a relative disadvantage that for reasons of fairness this argument has seldom been countenanced as evidence of the graver crimes, particularly those of violence.
II Wigmore, Evidence Section 392 ([Chadbourn] rev. 1979). The cases Mitchell cites from other circuits do, as he says, stand for the traditional view that evidence of poverty is not admissible to show motive, because it is of slight probative value and would be unfairly prejudicial to poor people charged with crimes.

Of our cases, two are relevant (the third cited by the government, United States v. Miranda, 986 F.2d 1283, 1285 (9th Cir. 1993), is not, because we discussed the issue as "evidence of a drug habit," not evidence of financial need). In United States v. Feldman, 788 F.2d 544 (9th Cir. 1986), we found no abuse of discretion in a bank robbery trial, where the court had admitted evidence that the defendant's joint account with his father was overdrawn by more than $ 8,000, and the father had told the bank that his signature was forged on the checks creating the overdraft. We said that the evidence that Feldman owed "substantial sums" was relevant to show motive, quoting another case that said "evidence that tends to show that a defendant is living beyond his means is of probative value in a case involving a crime resulting in financial gain." Id. at 557 (quoting United States v. Saniti, 604 F.2d 603, 604 (9th Cir. 1979)).

Likewise, in United States v. Jackson, 882 F.2d 1444, 1449 (9th Cir. 1989), we held that evidence was properly admitted that the defendant was "short on funds," "having financial difficulty," and borrowed money because he "couldn't pay for things he needed to have done." Id. We reviewed the traditional "resistance to linking poverty with motivations to commit crimes." Id. We noted that where evidence of impecuniosity properly came into evidence, there was "more than the mere fact that the defendant is poor." Id. We also noted that in the case quoted by Feldman for the "living beyond his means" language, the defendant had a $ 250 per day heroin habit. The reason we resolved Jackson in favor of admissibility was "an unexplained and abrupt change in that status for the better." Id. at 1450. A witness had testified that he was surprised when the defendant paid $ 100 for a post office box "because he never had any money." Id.

To determine whether evidence of impecuniousness has relevance, and that its probative value is not outweighed by the risk of unfair prejudice, it is necessary to consider the facts of the particular case. No general proposition can properly resolve all cases, because the multiplicity of circumstances in human conduct is too great. If a man is notoriously broke and cannot buy a pack of cigarettes Tuesday, that night a laundromat is burglarized, and on Wednesday the man buys a carton of cigarettes and a $ 40 bottle of scotch, all with quarters, the man's financial circumstances have obvious and significant probative value.

Poverty as proof of motive has in many cases little tendency to make theft more probable. Lack of money gives a person an interest in having more. But so does desire for money, without poverty. A rich man's greed is as much a motive to steal as a poor man's poverty. Proof of either, without more, is likely to amount to a great deal of unfair prejudice with little probative value.

There is a distinction between an interest, in the sense that it is in anyone's interest to be richer rather than poorer, and an inclination. A mere interest, unconnected with inclination, desperation, or other evidence that the person was likely to commit the crime does not add much, in most cases, to the probability that the defendant committed a crime. If people commonly committed crimes whenever they needed money and could get it by crime, no company would sell life insurance. There is usually a moral disinclination and an interest in avoiding punishment that restrains people from committing crimes out of mere financial interest. The problem with poverty evidence without more to show motive is not just that it is unfair to poor people, as Wigmore says, but that it does not prove much, because almost everyone, poor or not, has a motive to get more money. And most people, rich or poor, do not steal to get it.

The reason the financial circumstances evidence could come in in Jackson was abrupt change of circumstances. We required "more than the mere fact that the defendant is poor," such as "an unexplained and abrupt change in that status for the better." Jackson, 882 F.2d at 1449, 1450. An unexplained abrupt change of circumstances is not merely proof of motive, but also amounts to circumstantial evidence of the crime. In the laundromat hypothetical, that the man who was broke yesterday has a couple of hundred quarters today tends to show that the man actually did burglarize someplace that kept its money in quarters, not merely that he had a financial interest in doing so. In Jackson, that the man had no money before, and suddenly had an unexplained $ 100 to pay for something he could not ordinarily afford, tended to show that he had stolen the $ 100, not just that he had a financial interest in having $ 100 more than he did before the theft.

Likewise in Feldman, the size of the $ 8,000 overdraft and the defendant's father's complaints to the bank that his signature had been forged tended to prove that Feldman had a desperate need to cover the overdraft, not just that he would be better off if he were a few thousand dollars richer. Feldman was squeezed, not just poor. Likewise in the dope addict cases, such as Miranda, the addiction establishes a likelihood of desperate need and lack of self control, not just financial interest in being richer.

In this case, the evidence did not show "more than the mere fact that the defendant is poor." Jackson, 882 F.2d at 1449. The prosecutor implied in her closing argument that paying the rent in cash August 4, the day after the robbery showed an abrupt change of circumstances, but the evidence did not support that. Mitchell was as overdrawn when he paid the rent in cash July 5 or 6, as he was in August. Because Mitchell was chronically overdrawn, before and after the robbery, whether he had cash or not, his overdraft did not show lack of money to pay the rent. Nor did the evidence establish desperation. There is no reason why a man who has maintained an empty, overdrawn checking account would suddenly need to rob one bank to cover his small overdraft at another. Unlike Feldman, neither the size of the overdraft nor the defendant's father's conduct put any pressure on Mitchell to rob a bank to cover it. Nor did the evidence establish desperation to keep a roof over his family's head. Mitchell's family stayed in the apartment to the end of October, even though he did not pay the rent in September or October, and Mitchell's father said and had demonstrated readiness to help Mitchell out financially as necessary. The cash rent payment was not circumstantial evidence of the robbery, because no marked bills were proved, the day he paid was when the rent was due, and Mitchell always paid in cash pursuant to his landlord's requirement.

There is a distinction that cuts in favor of Mitchell between the unexplained ability to pay $ 100 for a post office box in Jackson and the unexplained ability to pay $ 885 rent in the case at bar, even though the amount of money cuts against him. In Jackson, a witness testified that "he was surprised" when Jackson paid the $ 100 "because he never had any money." Jackson, 882 F.2d at 1450. But it was no surprise when Mitchell paid the $ 885 in cash. That was the day his rent was due. He had paid it in cash before. The landlord required payment in cash. He had previously paid his landlord even though he was overdrawn at the bank and did not have earnings to cover the payment. Perhaps he was in the habit of keeping his cash out of the bank when the bank might use it to cover his overdraft and overdraft charges. We explained why the defendant's finances could come into evidence in Jackson by saying that the evidence showed "an unexplained and abrupt change in that status for the better." Id. It was the "abrupt change" that made Jackson more like the person with all the quarters in the laundromat hypothetical. In this case there was no such abrupt change.

The poverty evidence was not only of negligible probative value, but also produced a high "danger of unfair prejudice." Fed. R. Evid. 403. The prosecutor did not merely show that Mitchell would be better off if he had a few thousand dollars more. She effectively portrayed him as a feckless man who did not support his wife and children. She showed with the poverty evidence that Mitchell let his wife draw welfare while he went to the basketball court, lived on his parents' bounty at an age where most people do not, and let his family get evicted from their apartment. Jurors' feelings about a man who lives that way have no legitimate bearing on whether he should be convicted of robbing a bank. That a person is feckless and poor, or greedy and rich, without more, has little tendency to establish that the person committed a crime to get more money, and its probative value is substantially outweighed by the danger of unfair prejudice. The district court's discretion was not broad enough to allow admission of the evidence of Mitchell's impecunious financial circumstances.

END OF OPINION

This question -- poverty as evidence of motive for conduct -- and issues like it will be discussed on the forthcoming "evidence module" on Spindle Law. See link below. (But be patient: the evidence module is not yet public - alas.)

the dynamic evidence page

coming soon: the law of evidence on Spindle Law

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