How Distinctive Must a Modus Operandi Be to Serve as a "Signature"?

How distinctive does the manner of the commission of a crime have to be if that crime is to serve as a quasi-signature that tends to identify the perpetrator of that crime as the perpetrator of another crime committed in the same or similar manner? Cases and commentators once hinted the that m.o. used in the crime used as evidence of identity had to be unique, like a handwritten signature or a fingerprint, things that, some people (mistakenly) think, are unique identifiers. But today the law knows better: it knows that methods of committing crimes are not unique identifiers; today the law of evidence "knows" that methods of committing crimes can have at most only a tendency to show who the perpetrator of another crime was and the law now knows that an m.o. cannot be conclusive proof of a perpetrator's identity. But then the question is, "Well, just how unusual or distinctive must a modus operandi be if it is to be distinctive enough to allow "other bad act or crime" evidence to be admitted to show identity and to thus avoid falling afoul of the prohibition against the use of other crimes to show the commission of the crime charged?" The facts of some cases suggest that the answer increasingly is: not terribly different, the crime used as evidence of the identity of the perpetrator of the crime for which accused is on trial doesn't have to have been committed a very unusual way. See, e.g., United States v. Sappe, 898 F.2d 878, 879 (2d Cir. 1990), with my thanks again to Joannes Untalan Vinarao-Pilapil for finding this case.

There is a logic at work here: the logic of so-called logical relevance, which treats evidence as relevant if it has the slightest amount of probative value, if it has any tendency to increase or decrease the probability of a legally-material fact. See Federal Rule of Evidence 401. The same logic is corroding the doctrine of chances and the habit rule. In the case of the doctrine of chances, it is not apparent why more than just other other prior "accidental" bathtub drowning or more just one other supposed SIDS death is necessary to make the other drowning or the other infant death admissible in, respectively, a prosecution of accused for deliberately drowning his or her spouse or a father or mother for deliberately smothering an infant. And in the case of habit, it is hard to explain, under this logic (the logic of "logical relevance"), why a pattern of behavior must be invariable or almost invariable if the that pattern of behavior is to constitute habit legally speaking and thus avoid the prohibition against the use of character to show conduct.

It is this same sort of logic, I think, that drove the Supreme Court of the United States to hold that "clear and convincing" evidence of the commission of another crime is not necessary if another crime is to be used for a "nonpropensity purpose" such as "knowledge" or "absence of mistake" and that evidence "sufficient to support a finding" of the commission of the other crime is sufficient for admissibility of other crime evidence in federal trials. See Huddleston v. United States, 485 U.S. 681 (1988). The problem with this tendency (if you think it is a problem) is that if continued, it leads to the annihilation of all rules of evidence whose reason for being rests on their capacity to increase the accuracy of inference because of the accuracy of the generalizations those rules harbor about nature and humanity.

When I think about such questions, I tend to think that the fundamental questions about the reason for the existence of many rules of evidence have barely been posed, let alone answered.

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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.)

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coming soon: the law of evidence on Spindle Law

Prior False Accusation Evidence and the Confrontation Clause

See Jules Epstein, "True Lies: The Constitutional and Evidentiary Bases for Admitting Prior False Accusation Evidence in Sexual Assault Prosecutions," 24 Quinnipiac Law Review 609, 612-613 (2006)(footnote omitted)("[This] article ... returns attention to the cross-examination aspect of the Confrontation Clause guarantee, one that has been overlooked as recent decisional law and scholarship have focused on the Clause's limitations on the use of hearsay evidence following the Court's 2004 decision in Crawford v. Washington [541 U.S. 36 (2004)]. 17 [This] article suggests that the historic roots of the Confrontation Clause guarantee the right to impeach a testifying witness with proof of 'corruption,' a category that includes the making of false accusations.")

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So, which is it, finally -- a character trait or a motive?

Is "prejudice toward a group" or, alternatively, for example, racial prejudice, a character trait or is it a motive -- for purposes of the prohibition against the use of character to show conduct on a particular occasion? The following is a case that views alleged prejudice by a plaintiff toward White police officers as a group as a character trait (and a case that thus proclaims, in part for this reason, that acts -- prior lawsuits -- allegedly showing such "prejudice toward a group" are inadmissible): Outley v. City of New York, 837 F.2d 587, 591-594 (2d Cir. 1988)("The City, contending that its questions about prior lawsuits were designed to impeach Outley's credibility and to show his bias toward white police officers, reminds us that evidence admissible for one purpose is not rendered inadmissible by a separate rule which would preclude it. United States v. Abel, 469 U.S. 45, 56, 83 L. Ed. 2d 450, 105 S. Ct. 465 (1984)."; "The Court's reasoning in Abel is not applicable here. In effect, the City argues that it introduced the evidence to show that Outley bears a grudge against white police officers and that he acted consistently with that grudge in filing the claims in issue. This strikes us as precisely the sort of use prohibited by Rule 404(b), as going to character rather than bias. This is different, of course, from a case where a party has filed a series of fraudulent lawsuits and there is substantial evidence that the prior lawsuits amounted to a fraudulent pattern, evidence lacking here. [paragraph break] So saying, we recognize that there are a few cases permitting cross-examination concerning "prejudice toward a group," even without reference to the witness's specific prejudice against a particular witness or party. See United States v. Kartman, 417 F.2d 893, 897 (9th Cir. 1969) (reversing conviction of anti-draft demonstrator for, inter alia, denial of opportunity to cross-examine arresting officer, an ex-Marine, as to bias to anti-draft demonstrators as a group) (citing Jacek v. Bacote, 135 Conn. 702, 68 A.2d 144, 146 (1949) (plaintiff's witness cross-examined as to prejudice against Negroes, defendant being a Negro); Magness v. State, 67 Ark. 594, 50 S.W. 554, 59 S.W. 529 (1899) (prosecution witness cross-examined as to expression of hatred against Africans); see also People v. Christie, 2 Abb. Pr. 256, 259, 2 Park. Cr. R. 579, 583 (N.Y.S. Ct. 1st D. 1855) (witness cross-examined on membership in secret society); United States v. Lee Huen, 118 F. 442, 463 (N.D.N.Y. 1902) (no presumption of witness bias in favor of defendant of same nationality) (dictum)). These cases fall within the general rubric that "a partiality of mind is . . . always relevant as discrediting the witness and affecting the weight of his testimony." See 3A Wigmore on Evidence § 940, at 775 (Chadbourn rev. 1970). [paragraph] But, while it may have some relevance, there are still limitations on this type of cross-examination.")

Other cases, however, seem to take the opposite view. See, e.g., Barnes v. City of New York, 296 A.D.2d 330, 745 N.Y.S.2d 20 (2002) (civil rights action against city and police officer for shooting of plaintiff by city's police officer; "During the trial of this action, defendants sought to introduce evidence that plaintiff was a member of a group known as the "Five Percenters," which espouses a vicious ideological hatred of the police and propounds to its members a protocol to shoot and kill police officers rather than submit to arrest. n1 The trial court excluded this evidence on the ground that it was collateral and unfairly prejudicial, and the jury resolved factual issues in favor of plaintiff, rendering a verdict for him. We now hold that, contrary to the trial court's view, exclusion of such evidence constituted reversible error requiring that there be a new trial."; "Evidence of plaintiff's membership in the Five Percenters, under the circumstances presented here, was relevant to show that he had a specific motive to resist any police officer's attempt to arrest him, giving rise to the fair inference that plaintiff was likely to act in accordance with such motive in his encounter with Officer Jerome.")

So which is it? Is prejudice against a group a character trait that arguably inclines the hater toward a particular action or is it a motive for an action? The distinction implied by the question may seem ethereal but the answer to the question affects the admissibility of evidence of prejudice toward a group.

My thanks to Joannes Untalan Vinarao-Pilapil for unearthing Outley.

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coming soon: the law of evidence on Spindle Law

News Flash: Witnesses Sometimes Lie and Make Mistakes!

The same NYTimes article (see today's previous post) states:

Criminal justice experts say exonerations have shed light on two circumstances once thought to be extremely rare or even inconceivable: Witnesses are sometimes wrong, and people sometimes confess to crimes they did not commit.

I am not at all sure that genuine "experts" ever thought that false confessions are rare, much less "inconceivable." (Isn't Miranda -- you know: "You have the right to remain silent etc." -- isn't that Supreme Court decision pretty good evidence that some folks have worried about false confessions for quite some time? And what about the notorious show trials in Stalin's era? Did everyone here think those confessions were true? Or did some folks here conceive of the possibility that the confessions showcased in those trials were generally false? And what about confessions extracted by torture during the Spanish Inquisition?)

But let's be charitable: Let's let the NYTimes' thesis of the generally-perceived rarity of false confessions pass.

Even so, I am quite sure that no passably-educated law professor, lawyer, or judge ever thought that witnesses are "rarely" wrong. It has been known for some time that many trials present the spectacle of one witness saying one thing and another witness saying the opposite. I dare say this sort of spectacle has been around for thousands of years. (What about King Solomon and the custody case he adjudicated in his own inimitable fashion? I guess he must have conceived of the possibility that one of the two women before him was "wrong." And the same thought must have occurred to the people who told and heard the King Solomon story.)

The briefest dip into the waters of the law of evidence would have revealed to the NYTimes that the law takes the view (and has taken the view for a very long time) that witnesses can be "wrong" for a variety of reasons -- because of defects in memory, limited understanding, defects in sensory organs, bias and interest, and, yes, finally, untruthfulness -- and just a bit of research (or TV watching) would have revealed to the NYTimes that the law of evidence sanctions the use of a variety of courtroom techniques (and pretrial strategies as well) for ferreting out such sources of testimonial error.

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coming soon: the law of evidence on Spindle Law

DNA Has No Voice: DNA Does Not Cry Out "Innocence" (or "Guilt")

An article in today's NYTimes states:

Cases that lack what many call the “magic bullet” of DNA often require cumbersome investigations, including finding and re-interviewing witnesses or poring over thick files to find anything vital that a trial lawyer might have missed. Even when crucial evidence is uncovered — witness recantations or exculpatory statements that were ignored by prosecutors — judges, juries and prosecutors often treat it with skepticism.

The above statement reflects a fundamental misunderstanding of the logic of DNA evidence. Like fingerprint evidence, footprint evidence, or any other such evidence, DNA evidence does not speak on its own: it does not, by itself, proclaim "innocent" (or "guilty"). Like fingerprint evidence etc., DNA evidence speaks to innocence or guilt only within a factual context. And that context is sometimes or often contested. For example, a fingerprint or a residue with DNA may have been deposited at the scene of the crime at the time of the crime or the fingerprint or the DNA may have been deposited there at some other time. Alternatively, the person who deposited a fingerprint or DNA at the scene of the crime at the time of the crime may or may not have intended to kill, for example. Alternatively, investigators may have found a fingerprint or DNA of one culprit but not another. Alternatively, one culprit may have stood by while a co-culprit engaged in sexual intercourse with the rape victim. And so on ad infinitum. DNA is not a "magic bullet" that groks guilt or innocence. Only Star Trek machines do that.

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