Here's How:
To Introduce Other Acts Evidence
By: Attorney Jeffrey W. Jensen
Perhaps the most misunderstood concept among laypersons, and even among some lawyers and judges, is the proper use of other bad acts evidence in a criminal trial. "Other acts" evidence is evidence that on some other occasion the defendant, or a witness, behaved in a way that demonstrates his character. For example, if a defendant is on trial for retail theft of office supplies from an office supplies store, "other acts" evidence would be that six months before the incident in question the defendant was caught stealing office supplies from his employer and he was fired.
The source of the confusion over other acts evidence is obvious. We, as human beings, intuitively know that other people generally behave in accordance with their character. People whose character it is to be deceitful generally cannot be trusted to tell the truth. Someone who frequently loses his temper is likely to have lost his temper on the day in question. The problem with character and reputation evidence is not that is not probative of the issues in the case- the problem is that it is too probative. That is, evidence of one's character can be so telling about the issues in the case that the jury may look no further than the character evidence. But the character evidence only speaks to tendencies- it does not necessarily tell us the truth about what happened on any given day. Trials are the search for the truth.
Thus, the law attempts to balance the use of other acts evidence in a criminal trial. The analysis is fairly complicated; however, it may be summed this way: If the proponent of the other acts evidence seeks to use the evidence just to show that it was in the defendant's character to commit the offense, then it will not be permitted. On the other hand, if the other acts evidence is offered to prove some specific issue in the case, then the court is likely to permit its use.
Generally speaking, "other acts evidence" is not admissible during a trial to prove a person's conduct. However, Sec. 904.04(2)(a), Wis. Stats., does provide that, "Except as provided in par. (b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
The provisions of the statute seem straightforward. However, the Wisconsin Supreme Court quickly realized that the provisions of the statute appear to allow an unscrupulous proponent of the evidence to perform an evidentiary end-run. That is, although evidence of character is not admissible to prove bad character, all the party seeking admission of the evidence has to do is to conceal that the real purpose is to show that the defendant is of bad character. That is, in our example of the office theft, an unscrupulous prosecutor might just tell the judge that he is offering the other acts evidence to show that it was the defendant's "plan" to steal. If the language of the statute is given its plain meaning the court might have to admit the evidence even though the prosecutor's real intent was to show the jury that the defendant is a person likely to steal things.
In, State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), the Wisconsin Supreme Court created a three-pronged analysis that the trial court must conduct in deciding whether to admit other acts evidence. The analysis goes like this: (1) Is the evidence offered for some permissible purpose under Sec. 904.04(2), Wis. Stats. (proof of intent, plan, motive, etc)? ; (2) Is the proffered evidence relevant?; and, if so, (3) Does the unfair prejudice of admitting the evidence outweigh its probative value?
The first prong (permissible purpose) is the "old" analysis. That is, is the proponent seeking admission of the other acts evidence for a permissible purpose under the statute? Here is where the proponent of the evidence must explain to the judge why the evidence is being offered. Under this prong the trial court must also question whether it is necessary for the state to prove "plan" or "motive" given the issues in the case.
The second prong is whether the evidence is relevant. The terms "relevance", "materiality", and "probative value" are frequently used interchangeably in court; however, they are each different concepts. "Materiality" asks whether a proposition of fact is important in the determination of the issues at trial. "Relevance" asks whether the evidence has any tendency to make the existence of the material issue of fact more likely or less likely. "Probative value" speaks to the strength of the evidence in establishing the material proposition of fact. In the other acts analysis, then, the judge should ask the proponent of the evidence, "What material proposition of fact do you offer?" In our example with the office theft, the proponent might suggest this material proposition of fact: The defendant sells cut-rate office supplies on the internet and he obtains his inventory by theft. Thus, the other acts evidence is offered to prove that the defendant had the "plan" of stealing office supplies and then selling them on the internet. The fact that six months earlier the defendant was caught stealing office supplies from his employer certainly makes it more likely that he really did have such a plan. Likewise, the probative value appears to be fairly high. Thus, the second prong appears to be satisfied.
Lastly, then, the court must ask whether the unfair prejudice of admitting the evidence outweighs the probative value. Sec. 904.03, Stats., tells us that prejudice is "unfair" if there is a, "[D]anger 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." Naturally, the defendant in the example will argue that the prejudice is "unfair" because if the jury finds out that he was caught stealing office supplies from his employer the jury's analysis of the present charge will go no further. The ultimate decision by the trial judge would probably depend upon whether there was evidence that the defendant actually was selling office supplies on the internet. If there were such proof the judge would probably be obligated to admit the evidence. On the other hand, if the prosecutor were just theorizing that this was the defendant's plan then the judge would probably not admit the evidence.
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