Federal Public Defender
Assistant Federal Public Defender
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-7700
Counsel for Defendant
___________
IN
THE UNITED STATES DISTRICT COURT
FOR
THE NORTHERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA, Plaintiff, v. Defendant.
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MEMORANDUM
OF POINTS & AUTHORITIES IN SUPPORT OF MOTION TO EXCLUDE EVIDENCE OF DEFENDANT=S PRIOR CONVICTIONS AND OTHER BAD ACTS Pretrial Conference
Date:
__________, 2000 |
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TABLE OF AUTHORITIES
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TABLE OF CONTENTS
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Introduction
[Defendant] hereby moves to
exclude all reference to his prior convictions during trial. He further moves
to exclude all references to any Abad acts@ under Federal Rule of Evidence 404(b). Finally, he reserves the
right to make additional motions to exclude Abad acts@ evidence during the
trial.
Background
As of this filing, the
government has only provided notice of its intent to introduce evidence of
[defendant]=s prior convictions at
trial. The government has not provided
notice of its intent to introduce evidence of any juvenile adjudications or
other arrests. [Defendant] reserves the right to object to the use of such evidence should
the government provide late notice of its intent to introduce juvenile
adjudications or arrests.
[Insert facts here,
describing prior convictions and/or other Abad acts@].
Discussion
I. THIS COURT SHOULD EXCLUDE ALL EVIDENCE OF
[DEFENDANT]=S PRIOR CONVICTIONS
UNDER FED. R. EVID. 404(b).
A. Introduction of ABad Acts@ Evidence Under Fed. R.
Evid. 404(b)
Evidence of other bad
acts is only admissible subject to the strictures imposed by Rule 404(b) of the
Federal Rules of Evidence ("Fed. R. Evid.").
Rule 404(b) provides:
Other crimes, wrong, or
acts:
Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show that he acted in 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,
provided that upon request by the accused, the prosecution in a criminal case
shall provide reasonable notice in advance of trial, or during trial if the
court excuses pretrial notice on good cause shown, of the general nature of any
such evidence it intends to introduce at trial.
Rule 404(b) protects
against the danger that the jury will either punish the defendant for offenses
other than those charged, or convict the defendant when unsure of guilt because
it is convinced that the defendant has a propensity to engage in illegal
activity. See United States v. Brown,
880 F.2d 1012, 1014 (9th Cir. 1989)(A[T]he rule is designed to avoid a danger that the jury will punish
the defendant for offenses other than the offense charged, or at least will
convict when unsure of guilty, because it is convinced the defendant is a bad
man deserving of punishment.@).
The first sentence of
Rule 404(b) restates the traditional view that evidence of other crimes or
other acts is admissible only when the proffered evidence is relevant to a
material issue in the case, other than the defendant's criminal character. See
United States v. McKoy, 771 F.2d 1207, 1213 (9th Cir. 1985)(holding that
Fed. R. Evid. 404(b) prohibits the government from introducing evidence of a
defendant=s prior crimes to show
that the defendant has a bad character); see also United States v.
Bailleaux, 685 F.2d 1105, 1109 (9th Cir. 1982)(ACourts must be extremely
careful to guard against the danger that defendants will be convicted because
they have previously committed a serious criminal offense rather than because
the government has introduced evidence sufficient to prove . . . that they are
guilty@).
The second sentence of
the rule permits introduction of such evidence when offered "as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident." Fed. R.
Evid. 404(b). The Ninth Circuit does
not look upon such evidence with favor. See United States v. Hodges, 770
F.2d 1475, 1479 (9th Cir. 1985). (AWe have emphasized that extrinsic acts evidence is not looked upon
with favor@). The Ninth Circuit has
recognized that Rule 404(b) is a rule of Ainclusion,@ permitting use of the evidence when it does not go to the
defendant=s character. The Court has, however, not afforded any
presumption as to the relevance or admissibility of other acts evidence. See McKoy, 771 F.2d at 1214 (AThere is no presumption
that evidence of other crimes is admissible@).
Instead, to establish
the admissibility of other acts evidence for one of these purposes, the Ninth
Circuit has held that the district court must find that it passes a four-part
test. See United States v. Montgomery, 150 F.3d 983 (9th Cir.
1998).
First, the evidence of
other crimes must tend to prove a material issue in the case. Second, the other crime must be similar to
the offense charged. Third, proof of
the other crime must be based on sufficient evidence. Fourth, commission of the other crime must not be too remote in
time.
Id. at 1000 (citations
omitted).
Moreover, the Ninth
Circuit requires the government to "'articulate precisely the evidential
hypothesis by which a fact of consequence may be inferred from the other acts
evidence.'" United States v. Mayans, 17 F.3d 1174, 1181 (9th Cir.
1994) (quoting United States v. Mehrmanesh, 689 F.2d 822, 830
(9th Cir. 1982)).
Even if evidence of
other crimes satisfies the four-part test of Rule 404(b), it Aalso must satisfy the
Rule 403 balancing test--its probative value must not be substantially
outweighed by the danger of unfair prejudice.@[1] Montgomery, 150 F.3d at 1000-01. AThe Government has the burden of demonstrating that the evidence
of other crimes satisfies these requirements.@ Id. at 1001; see also State of
Arizona v. Elmer, 21 F.3d 331, 336 (9th Cir. 1994) (AWe have emphasized
consistently that evidence of extrinsic acts may not be introduced unless the
government establishes its relevance to an actual issue in the case@) (quoting United
States v. Hodges, 770 F.2d 1475, 1479 (9th Cir. 1985)).
B. Evidence of [Defendant]=s Prior Convictions and
Testimony Regarding Those Offenses Do Not Satisfy the Requirements for
Admission Under Fed. R. Evid. 404(b)
Evidence relating to the
prior convictions of [defendant] is inadmissible under Fed. R. Evid. 404(b),
because they do not tend to prove a material issue in the case, they are not
sufficiently similar to the offense charged, and they are too remote in time.
1. The prior convictions do not tend to
prove a material issue in the case
It is the burden of the
government to articulate the specific evidentiary theory supporting the
admission of 404(b) evidence. See
Mayans, 17 F.3d at 1181. The
government has yet to identify any theory supporting admission of prior acts.
2. The prior crimes are not sufficiently
similar to the offense charged
If the government
attempts to introduce the prior convictions in order to show identity, intent,
or knowledge, the convictions must be sufficiently similar to the offense
charged. None of [defendant]=s prior acts are
sufficiently similar to the crime charged to be admissible under Fed. R. Evid.
404(b).
In United States
v. Luna, the Ninth Circuit found several bank robberies insufficiently
similar for purposes of proving identity even though all the bank robberies
were conducted takeover style, at least one or more robbers always wore white
gloves, and a white pillow case was always used to take the money, among nine
other listed similarities. 21 F.3d 874,
879-882 (9th Cir. 1994). Because the
bank robberies at issue were insufficiently similar, the Ninth Circuit found
that the trial court erred in admitting this other crimes evidence. Id. at 882.
[Explain how the defendant=s convictions and other
acts are not sufficiently similar and not probative on a material issue].
3. The prior convictions are too remote in
time
Another requirement for
admission under 404(b) is that Athe commission of the other crime must not be too remote in time.@ Montgomery, 150 F.3d at 1000.
[Explain how the
convictions or acts are too remote in time].
C. Evidence of [Defendant]=s Prior Convictions and
Testimony Regarding Those Offenses Are Inadmissible Under Fed. R. Evid. 403
Even if the government
meets its burden for admission of the prior offenses evidence under Rule
404(b), the evidence still must be excluded under Rule 403.
Extrinsic act evidence Amay be accepted only if,
on balance, its probative value is not substantially outweighed by the danger
of unfair prejudice to the defendant.@ Hodges, 770 F.2d
at 1479. In the present case, there is
an enormous danger of unfair prejudice to [defendant] that substantially outweighs the minimal probative
value of the prior offenses.
The Ninth Circuit has
explained that the proper measure of unfair prejudice is:
the degree to which a
jury responds negatively to some aspect of the evidence unrelated to its tendency
to make a fact in issue more or less probable, e.g., that aspect of the
evidence which makes conviction more likely because it provokes an emotional
response in the jury or otherwise tends to affect adversely the jury's attitude
toward the defendant wholly apart from its judgment as to his guilt or
innocence of the crime charged.
United States v. Johnson, 820 F.2d 1065, 1069
(9th Cir. 1987)(internal citations and quotations omitted).
[Explain how evidence of
Defendant=s particular
convictions/acts will prejudice him/her]
The Aunderlying premise of
our criminal justice system [is] that the defendant must be tried for what he
did, not for who he is.@ Hodges, 770 F.2d
at 1479. Permitting evidence of the
prior offenses will impermissibly put [defendant] on trial for offenses that are over [X] old.
The government cannot
meet its burden for admitting evidence of [defendant]'s prior offenses under
404(b), and the prejudicial effect of the evidence substantially outweighs it
probative value. The evidence should
accordingly be excluded.
II. EVIDENCE OF THE PRIOR CONVICTIONS OR
UNDERLYING ARRESTS IS NOT ADMISSIBLE UNDER FED. R. EVID. 609.
[Defendant] hereby moves for
exclusion of evidence that he has been convicted of prior offenses, under Fed.
R. Evid. 609. This rule embodies
greater protections against prejudice for criminal defendants than for other
witnesses:
(a) General rule. For the purpose of attacking the credibility
of a witness, (1) evidence that a witness other than an accused has been
convicted of a crime shall be admitted subject to Rule 403, if the crime was
punishable by death or imprisonment in excess of one year under the law under
which the witness was convicted, and evidence that an accused has been
convicted of such a crime shall be admitted if the court determines that the
probative value of admitting this evidence outweighs is prejudicial effect to
the accused.
Fed. R. Evid. 609
(emphases added).
When the conviction
relates to the accused, Rule 609 thus reverses the balancing of probative value
and prejudicial effect found in Rule 403.
While Rule 403 encourages admission of evidence unless the probative value
is substantially outweighed by the danger of prejudice, Rule 609 only
permits the admission of prior convictions when the probative value outweighs
the prejudicial effect. The Ninth
Circuit has raised this hurdle to even greater heights, by stating that the Agovernment bears the
burden of showing that the evidence=s probative value substantially outweighs its prejudicial
effect.@ United States v. Browne, 829 F.2d
760, 763 (9th Cir. 1987)(emphasis added); see also United States v.
Alexander, 48 F.3d 1477, 1488 (9th Cir. 1995), as amended April 11,
1995.
In United States v.
Bagley, 772 F.2d 482 (9th Cir. 1985), cert. denied, 475 U.S. 1023
(1986), the Ninth Circuit articulated the factors a trial court should consider
while balancing the probative and prejudicial effect of prior convictions in
the context of a Federal Rule of Evidence 609 challenge:
(1) [T]he impeachment
value of the prior crime; (2) the temporal relationship between the conviction
and the subsequent history of the defendant; (3) the similarity between the
prior offense and the offense charged; (4) the importance of the defendant=s testimony; and (5) the
centrality of the credibility issue.
Id. at 487. On balance of
these five factors, the probative value of [defendant]=s prior convictions does not substantially outweigh the prejudicial
effect.
A. The Impeachment Value of the Prior
Convictions
[Defendant]=s prior convictions have
little or no impeachment value. In Bagley,
the record was Adevoid of any evidence that [the defendant] intended to
misrepresent his character or to testify falsely as to his prior criminal record.@ Id. at 488. The Court in Bagley thus concluded that Athe impeachment value of
[the defendant=s] prior robbery conviction was quite low, yet its prejudicial
impact would be overwhelming.@ Id.
In the present case, [defendant] does not intend to
misrepresent his character or to testify falsely as to his prior criminal
record. As in Bagley, the
impeachment value of his prior convictions are quite low, while they would
deliver an overwhelming prejudicial impact.
B. The Temporal Relationship Between the
Past and Present Offenses is Remote
[Defendant]=s most recent conviction
is over [X] years old. The remainder of the convictions are over [X] years old. The remote
temporal relationship between the prior and present offenses weighs against
admission.
C. One of the Prior Offenses is Similar and
is Therefore Prejudicial
The Court in Bagley
warned against the enormous prejudicial impact of a prior offense similar to
the offense charged:
To allow evidence of a
prior conviction of the very crime for which a defendant is on trial may be
devastating in its potential impact on a jury.
As we recognized in United States v. Field, 625 F.2d 862, 872
(9th Cir. 1980), where, as here, the prior conviction is sufficiently similar
to the crime charged, there is a substantial risk that all exculpatory evidence
will be overwhelmed by a jury=s fixation on the human tendency to draw a conclusion which is
impermissible in law: because he did it before, he must have done it
again. Such a risk was clearly present
in this case.
Bagley, 772 F.2d at 488.
[Explain how the prior
conviction[s] are so similar that the prejudice will be unfair].
The remaining factors
are the importance of the defendant=s testimony and the centrality of the credibility issue. Evidence should be excluded if defendant=s testimony is important
and admission will likely prevent defendant from testifying. See United
States v. Paige, 464 F.Supp. 99, 101 (E.D Pa. 1978). Even if these factors
tend to favor admission of the prior convictions, they are of insufficient
weight to overcome the prejudicial showing of the first three Bagley
factors.
When all five Rule 609
factors are considered in balance, the government cannot meet its burden of
showing that the probative value of the prior convictions substantially
outweighs
their prejudicial
impact. The convictions should
therefore be excluded.
Conclusion
For the foregoing
reasons, [defendant] respectfully requests
that this Court grant his motion to exclude evidence of his prior convictions
and testimony relating to those offenses.
Respectfully submitted,
BARRY J. PORTMAN
Federal Public
Defender
[ATTORNEY]
Assistant Federal Public
Defender
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