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PRIOR BAD ACTS OF THE DEFENDANT - MN Bench Book - Trial Procedures & Practices for Judges
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PRIOR BAD ACTS OF THE DEFENDANT

From MN Bench Book - Trial Procedures & Practices for Judges

Click on “TRIAL PROCEDURES & PRACTICES FOR JUDGES” above to return to main page


FACTORS FOR A COURT TO CONSIDER WHEN THE STATE PROPOSES TO INTRODUCE EVIDENCE OF PRIOR BAD ACTS OF THE DEFENDANT AS PART OF THE STATE'S CASE

SEE GRAPHICAL FLOW CHART-DECISION TREE AT THE END OF THIS SECTION FOR A VISUAL DEPICTION OF THIS AREA

1. EVIDENCE OF PAST CRIMES OR BAD ACTS IS NOT ADMISSIBLE TO PROVE THE CHARACTER OF A PERSON OR THAT THE PERSON ACTED IN CONFORMITY WITH THAT CHARACTER IN COMMITTING AN OFFENSE.[1] “Our general exclusionary rule is grounded in the defendant’s constitutional right to a fair trial.”[2]“The overarching concern behind excluding such evidence is that it might be used for an improper purpose, such as suggesting that the defendant has a propensity to commit the crime or that the defendant is a proper candidate for punishment for his or her past acts.”[3]
2. EVIDENCE OF PRIOR BAD ACTS MAY BE ADMITTED FOR LIMITED, SPECIFIC PURPOSES. THOSE PURPOSES INCLUDE:
A. Showing motive,
B. Intent,
C. Knowledge,
D. Identity,
E. Absence of mistake or accident, or
F. A common scheme or plan.”[4]
G. Evidence of prior bad acts also may be admitted to show whether the conduct on which the charge was based actually occurred or was “a fabrication or a mistake in perception by the victim.”[5]
The district court should not simply take the prosecution’s stated purposes for the admission of other-acts evidence at face value.” Ness, 707 N.W.2d at 686. Instead, the district court must “conduct a thoroughgoing examination of the purposes for which prior bad acts evidence is offered, and weigh the probative value of the evidence on disputed issues in the case against its potential for unfair prejudice.”[6]
To weight the probative value versus the unfair prejudice the court must:
1. Determine the relevance of the prior bad acts,
2. Evaluate the risk of the evidence being used as propensity evidence, and
3. Evaluate the State’s need to strengthen weak or inadequate proof in the case.”[7] We note that Spreigl (prior bad acts) evidence, by its nature, is prejudicial, but the balancing analysis for unfair prejudice focuses on whether the evidence “persuades by illegitimate means, giving one party an unfair advantage.”[8]
3. THE DISTRICT COURT MUST CONSIDER FIVE FACTORS IN DETERMINING WHETHER TO ADMIT EVIDENCE OF PRIOR BAD ACTS:
1. The state must give notice of its intent to offer the evidence;
2. The state must clearly indicate what the evidence will be offered to prove (Purpose- See 2 A – G);
3. There must be clear and convincing evidence that defendant participated in the prior act;
4. The evidence must be relevant and material to the state’s case
A. “To properly assess the relevancy and probative value of the evidence, the district court must first identify the precise disputed fact to which the Spreigl evidence would be relevant.”;[9]
B. To be relevant and material to the state’s case, “Prior bad acts evidence need not be identical in every way to the charged crime, but must instead be sufficiently or substantially similar to the charged offense—determined by time, place and modus operandi.”[10]
C. The court must determine whether the prior incident(s) has a marked similarity to the charged offense determined by time, place and modus operandi.
D. Relevancy concerns about bad acts that are remote in time are lessened if;
(1) The defendant spent a significant part of that time incarcerated and was thus incapacitated from committing crimes;
(2) There are intervening acts that show a repeating or ongoing pattern of very similar conduct; or
(3) The defendant was actually convicted of a crime based on the prior bad act, thus reducing the prejudice of having to defend against claims of acts that occurred years before.[11]
And
5. The probative value of the prior bad act evidence must not be outweighed by its potential for prejudice to the defendant.[12]
4. IF THE ADMISSION OF EVIDENCE OF OTHER CRIMES OR MISCONDUCT IS A CLOSE CALL, IT SHOULD BE EXCLUDED.[13]
5. UNDER NO CIRCUMSTANCES IS EVIDENCE OF A CRIME OTHER THAN THAT FOR WHICH A DEFENDANT IS ON TRIAL ADMISSIBLE WHEN THE DEFENDANT HAS BEEN ACQUITTED OF THAT OTHER OFFENSE[14]Evidence of prior acts of the defendant are not admissible if the defendant has been acquitted of criminal charges arising out of the prior acts. [15]
6. THE APPELLATE COURT WILL REVIEW THE DISTRICT COURT’S DECISION TO ADMIT PRIOR BAD ACTS EVIDENCE FOR AN ABUSE OF DISCRETION.[16]
7. THE COURT SHOULD GIVE CAUTIONARY INSTRUCTIONS TO THE JURY ABOUT THE PRIOR BAD ACT EVIDENCE, BOTH BEFORE THE EVIDENCE IS INTRODUCED AND IN ITS FINAL CHARGE TO THE JURY[17] See or click on CURATIVE AND CAUTIONARY INSTRUCTIONS The trial court should, sua sponte, give an unequivocal limiting instruction both at the time the evidence is admitted and at the close of trial. But in the absence of a request, the failure to do so is not reversible error.[18] It is recommended that the court obtain the defendant's consent that such cautionary instruction be given. [19]


8. REVERSE PRIOR BAD ACTS EVIDENCE OFFERED BY DEFENDANT

Evidence of an alternative perpetrator’s other crimes, wrongs, or bad acts—sometimes called reverse-Spreigl evidence—is admissible “to cast reasonable doubt upon the identification of the defendant as the person who committed the charged crime.”[20] To introduce reverse-Spreigl evidence at trial, a defendant must first meet the threshold requirement of connecting the alternative perpetrator to the commission of the crime with which the defendant is charged.[21] If the defendant meets this threshold requirement, the reverse-Spreigl evidence is admissible if the defendant can show (1) by clear and convincing evidence that the third party participated in the reverse-Spreigl incident; (2) that the reverse-Spreigl incident is relevant and material to defendant’s case; and (3) that the probative value of the reverse-Spreigl evidence outweighs its potential for unfair prejudice.[22] Though the Spreigl and reverse-Spreigl tests are similar, we have said that in the case of reverse-Spreigl evidence, “Sixth Amendment concerns (right to confront one’s accuser and right to present evidence) enter into the picture when it is the defendant who is seeking to present the [other crimes, wrongs, or bad acts] evidence.”[23]

When offered to establish the identity of the perpetrator, an alternative perpetrator’s other crime, wrongs or bad act is relevant to a defendant’s case if the other crime, wrong, or bad act is sufficiently similar to the charged crime in terms of time, place, or modus operandi.[24]

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References:

  1. R. of Evid. 404(b); State v. Fardan, 773 N.W.2d 303, 315 (Minn. 2009); State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965).
  2. Fardan, 773 N.W.2d at 315 (quoting State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006)) (quotation marks omitted).
  3. Id. (quotations omitted).
  4. Ness, 707 N.W.2d at 685 (citing Minn. R. Evid. 404(b)). See Ness, 707 N.W.2d at 688 (stating that evidence of prior bad acts is admissible under the common-scheme-or-plan exception “to refute the defendant’s contention that the victim’s testimony was a fabrication”).
  5. State v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn. 1993).
  6. Id. at 690.
  7. Id.
  8. State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005).
  9. Fardan, 773 N.W.2d at 317 (quoting Ness, 707 N.W.2d at 686) (quotation marks omitted)
  10. Ness, 707 N.W.2d at 688.
  11. Ness, 707 N.W.2d at 689.
  12. Ness, 707 N.W.2d at 685-86.
  13. Fardan, 773 N.W.2d at 316; Spreigl, 272 Minn. at 495, 139 N.W.2d at 172 (“Where it is not clear to the court whether or not the evidence is admissible as an exception to the general exclusionary rule, the accused is to be given the benefit of the doubt, and the evidence rejected.”).
  14. State v. Wakefield, 278 N.W.2d 307 (Minn.1979)
  15. Id.
  16. Fardan, 773 N.W.2d at 315. “We will not reverse the district court’s allowance of such evidence unless it has been shown that the court clearly abused its discretion.” State v. Smith, 749 N.W.2d 88, 93 (Minn. App. 2008) (citing State v. Spaeth', 552 N.W.2d 187, 193 (Minn. 1996)). “A defendant who claims the trial court erred in admitting evidence bears the burden of showing the error and any resulting prejudice.” Ness, 707 N.W.2d at 685.
  17. CRIMJIG 2.01 Cautionary Instruction on Receipt of Testimony of Other Crimes or Occurrences 404b SPREIGL EVIDENCE
  18. State v. Forsman, 260 N.W.2d 160, 169 (Minn.1977)
  19. McCollum v. State, 640 N.W.2d 610, 617 (Minn.2002)
  20. Jones, 678 N.W.2d at 16; see also State v. Bock, 229 Minn. 449, 458, 39 N.W.2d 887, 892 (1949).
  21. Jones, 678 N.W.2d at 16.
  22. Woodruff v. State, 608 N.W.2d 881, 885 (Minn. 2000) (citing Johnson, 568 N.W.2d at 433-34); see also Jones, 678 N.W.2d at 16-17.
  23. State v. Robinson, 536 N.W.2d 1, 2 (Minn. 1995).
  24. State v. Johnson, 568 N.W.2d 426, 434 (Minn. 1997).