Rap Lyrics as Confessions

Tag Archives: rule 403

Rap Lyrics as Confessions

Posted on August 27, 2013 by Jeff Welty

When may rap lyrics written by a defendant be admitted as evidence of guilt? That question has been in the news quite a bit lately as a result of a decision by the Nevada Supreme Court. (For example, see this ABC News story, or this Washington Post piece.) There’s also some North Carolina authority on point, so I thought the topic was worth a post.

The Nevada ruling. The Nevada case is Holmes v. State, __ P.3d __, 2013 WL 4477058 (Nev. Aug. 22, 2013). The defendant and his accomplices lured a drug dealer to a recording studio for the purpose of robbing him. The defendant, who was wearing a ski mask, attacked the victim, beat him, turned his pockets inside out, ripped off his necklace, and shot and killed him. The defendant was eventually arrested and charged with murder. While in jail, he wrote a number of rap songs, one of which was titled Drug Deala. It included the following lyrics: “I catching slipping at the club and jack you for your necklace. . . . Man I’m parking lot jacking, running through your pockets with uh ski mask on straight laughing.”

The state sought to introduce the lyrics, and the trial court admitted the evidence, though with a limiting instruction that the lyrics could be viewed as “confessions, admissions, or neither,” and shouldn’t be used to conclude that the defendant was a bad person with a propensity to commit crimes. The defendant was convicted and appealed, and a divided state supreme court affirmed. The majority acknowledged that rap music may often contain violent storylines and exaggerations, but found that the lyrics in question were relevant and survived Rule 403 balancing because the “details . . . mirror the crime charged.” The dissenting justice argued that the lyrics were “not clearly an admission rather than artistic expression, and they are not sufficiently specific as to be relevant to the charged crimes.”

North Carolina law. There are a couple of North Carolina cases in this area. The most relevant is the unpublished case of State v. Allen, 2006 WL 2529580 (N.C. Ct. App. Sept. 5, 2006) (unpublished) (“At trial, defendant objected to the introduction of rap song lyrics written by defendant while in custody awaiting trial for [a] murder,” but “[t]he trial court found the lyrics sufficiently similar to the facts and circumstances surrounding the murder” to be admissible over Rule 401 and Rule 403 objections; the court of appeals affirmed based on “similarities between the lyrics and the facts of the case”). Marginally relevant is State v. Bryant, 196 N.C. App. 154 (2009) (police seized a notebook from a murder suspect that contained “rap lyrics defendant had written about the shootings”; the lyrics were subsequently admitted as evidence; the issue on appeal concerns whether the seizure was proper; the court rules that it was and therefore, “[t]he trial court properly allowed the notebook, and [the lyrics] into evidence”). Generally, it appears that the touchstone of admissibility is the degree of similarity between the lyrics and the facts of the charged offense.

Other authorities. For a federal case in the same general vein, see United States v. Stuckey, 253 Fed. App’x 468 (6th Cir. 2007) (“Stuckey’s lyrics concerned killing government witnesses and specifically referred to shooting snitches, wrapping them in blankets, and dumping their bodies in the street – precisely what the Government accused Stuckey of doing [to the victim] in this case”; the lyrics were therefore relevant and admissible).

This topic has also been explored in a couple of law review articles. See, e.g., Andrea Dennis, Poetic (In) Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, 31 Colum. J.L. & Arts 1 (2007) (criticizing the frequent admission of lyrics against defendants and emphasizing “the negative impact this . . . will have on the production and quality of art when individuals must worry that their artistic sensibilities and creative expressions might later be used against them in a criminal prosecution”); Jason E. Powell, Note, R.A.P.: Rule Against Perps (Who Write Rhymes), 41 Rutgers L.J. 479 (2009) (collecting cases and arguing that, despite the weight of authority to the contrary, “rap lyric should not be permitted in the courtroom except, perhaps, on rare occasions”).

Final note. There are a lot more cases about rap lyrics than other kinds of lyrics, but the legal principles set forth above would presumably apply equally to other musical genres. For example, if any of the Dixie Chicks were suspected of involvement in a domestic violence related homicide, Goodbye Earl (lyrics here) might be an important piece of evidence for the prosecution.

Category: Evidence, Uncategorized | Tags: admissions, confessions, holmes, lyrics, rap, relevancy, rule 401, rule 403

Street Names and Nicknames

Posted on May 14, 2013 by Jeff Welty

Suppose that a murder defendant goes by the street name “Hit Man.” The prosecution wants the investigating officer to testify that she received a tip that “Hit Man” committed the crime, and that she knew that the defendant used the nickname “Hit Man.” Defense counsel moves to prohibit all references to the nickname during the trial, arguing that it is de facto character evidence, which is generally prohibited under Rule 404(a), and that it is in any event far more prejudicial than probative and so barred under Rule 403. How should the judge rule?

Case law suggests that a brief reference to a defendant’s unflattering street name is permissible. However, the officer and the prosecutor should not unduly emphasize the nickname.

North Carolina cases. Our appellate courts have decided several nickname cases, and in every case, the courts have ruled in favor of the state:

In State v. Bonnett, 348 N.C. 417 (1998), the court ruled that a witness’s references to defendant’s nickname, “Homicide,” were not prejudicial given that defense counsel and the defendant used the same term. In any event, the court stated, it is not error to refer to the defendant by the name by which he is generally known.
In State v. Swift, 290 N.C. 383 (1976), the court said, “we do not believe it would have been error to refer to defendant by the name by which he was generally known [in this case, “Poison Ivy” or “Poison”]. The fact that his nickname may have been demeaning does not create error per se. Defendant had an opportunity to explain his nickname.”
In State v. Riley, 159 N.C. App. 546 (2003), the court concluded that an officer’s reference to defendant’s nickname, “Dirty,” was not prejudicial in light of the overwhelming evidence of the defendant’s guilt and so was not plain error.

These cases don’t completely close the door to defense objections about nicknames. The nicknames in Swift and Riley, while unflattering, were not unambiguous references to criminal activity. The nickname at issue in Bonnett was much worse, but the defendant’s appeal was undermined by the fact that defense counsel and the defendant used the name themselves.

National cases. Although the vast majority of decisions nationally have rejected appeals based on references to defendants’ nicknames, a few cases have found the use of a defendant’s nickname to be so prejudicial as to require a new trial. The leading case is United States v. Farmer, 583 F.3d 131 (2d Cir. 2009), where the Second Circuit condemned the prosecution’s repeated references to the defendant’s nickname, “Murder.” The court distinguished other nickname cases in which no prejudicial error was found, noting that those cases generally involved less damning nicknames, fewer references to the nicknames, or limiting instructions regarding the nicknames. See also Taylor v. State, 23 A.2d 851 (Del. 2011) (awarding a new trial on other grounds to a murder defendant and recommending that “in the retrial, the court should make an effort to delete all references to [the defendant’s nickname, “Murder”] if possible”). But see Com. v. Williams, 58 A.3d 795 (Pa. Super. 2012) (no error in allowing prosecutor and prosecution witnesses to refer to the defendant by his nickname, “Killa”; prosecution “did not use [the] nickname to suggest [the defendant] had a violent character, but used it to show that the witnesses recognized [him] . . . even though the witnesses did not know [his] real name”); Burtts v. State, 499 S.E.2d 326 (Ga. 1998) (no error where witnesses identified the defendant as “Killer Corey” because they did not know his full name; “the use of a nickname does not place the character of an accused in issue”).

Practice pointers. The upshot for the prosecution is to exercise restraint. The more frequently a defendant’s nickname is used, the more closely it relates to criminal activity, and the more careful the defendant is to avoid using the nickname himself and to object when it is used by others, the more likely that the use of the nickname will be deemed improper. If a defendant’s nickname is likely to feature prominently in a trial, it would be wise to ask the judge to give a limiting instruction.

The defense should tread carefully, too. Sometimes the shoe is on the other foot and the defense wants to make the defendant’s nickname known to the jury. But that can carry unintended consequences, as in State v. Berry, 356 N.C. 490 (2002). In that case, a murder defendant elicited testimony that his nickname was “Crazy K,” “apparently in an attempt to tie the nickname to defendant’s purported lack of mental stability.” But that “gave the State the opportunity to establish the source of the nickname,” which was gang-related.

Category: Evidence, Uncategorized | Tags: character evidence, Evidence, hit man, homicide, murder, nicknames, rule 403, street names

Applying Rule 403 in Child Pornography Cases

Posted on September 19, 2012 by Jeff Welty

Rule 403 provides that “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . needless presentation of cumulative evidence,” or other factors. There’s considerable case law about the application of Rule 403 to photographs of homicide victims. A recent case from the Third Circuit raises important questions about how Rule 403 applies in child pornography cases.

A short summary of United States v. Cunningham is as follows. An officer determined that a computer at a particular IP address was sharing child pornography over a peer-to-peer network. The officer traced the IP address to a particular residence, then obtained and executed a search warrant for the home. The defendant and his two siblings lived there. The only computer, which contained a substantial amount of child pornography, was in the defendant’s room. The defendant admitted searching for, downloading, and saving child pornography on the computer. He was charged in federal court with child pornography offenses.

Notwithstanding his confession, the defendant pled not guilty. Prior to trial, he offered to stipulate that the materials obtained by the officer through the peer-to-peer network and from the computer were child pornography. His defense was that someone else used the computer to commit the crimes. He filed several pretrial motions asking the judge to limit, under Rule 403, the amount of child pornography the government could show to the jury. The judge, without viewing the evidence, required the government to disable audio on any video clips it showed but otherwise generally allowed the government leeway to introduce “representative samples” of the child pornography. In the end, “the District Court allowed the government, over [the defendant’s] objection, to show the jury two videos containing seven different video clips totaling approximately two minutes as a sample of the child pornography that gave rise to the charges.”

The defendant was convicted and appealed, arguing that (1) the district court erred in failing to view the videos before ruling on the Rule 403 motion, and (2) that the videos were unduly prejudicial and cumulative and should have been excluded. A panel of the Third Circuit unanimously agreed with both points. First, it stated that in most cases, “a district court should know what the challenged evidence actually is – as opposed to what one side or the other says it is,” before ruling on a Rule 403 objection. Second, it described the videos in gruesome detail and concluded that, at a minimum, certain videos showing young children in bondage being sexually abused were unduly prejudicial because “their violent and sadistic character likely created disgust and antagonism toward Cunningham which risked overwhelming prejudice toward him.” (Slip Op. at 38, internal quotation marks and citations omitted.) The court also gave significant weight to the fact that the defendant had offered to stipulate that the materials were child pornography, though it did note that a defendant generally cannot avoid the impact of the prosecution’s evidence by stipulation.

The interaction of child pornography, defense offers to stipulate, and Rule 403 appears to be the subject of considerable interest, and some disagreement, in the federal courts. See, e.g., United States v. Loughry, 660 F.3d 965 (7^th Cir. 2011) (defendant was charged with distributing child pornography featuring the “lascivious exhibition” of children’s genitals; over objection, prosecution was allowed to introduce “hard core” child pornography the defendant possessed at home, which included sexual contact between adults and children; trial judge violated Rule 403 “in admitting the ‘hard core’ pornography without examining it, in not explaining its reasoning under Rule 403, and in admitting the evidence even though it was highly inflammatory and had only minimal probative value”); United States v. Caldwell, 586 F.3d 338 (5^th Cir. 2009) (no Rule 403 error where trial judge allowed prosecution to play short video clips of child pornography to the jury, notwithstanding the defendant’s offer to stipulate that the material contained child pornography); United States v. Schene, 543 F.3d 627 (10^th Cir. 2008) (no Rule 403 error in displaying multiple images of child pornography to the jury notwithstanding the defendant’s offer to stipulate that the images contained child pornography; court relied on the similar ruling in United States v. Campos, 221 F.3d 1143 (10th Cir. 2000), and noted that most of the challenged images were the very crux of the charges against the defendant); and United States v. McCourt, 468 F.3d 1088 (8^th Cir. 2006) (no undue prejudice under Rule 403 where government played seven short video clips of child pornography, again notwithstanding the defendant’s offer to stipulate).

In North Carolina, the only case that I could find that touches on the issue is State v. Galanis, 2007 WL 4105829 (N.C. Ct. App. Nov. 20, 2007) (unpublished) (no violation of Rule 403 where state published child pornography photographs to the jury, then displayed them again on a large screen during cross-examination of the defendant). If readers know of others, please post a comment or send me an email.

I must admit that I didn’t find Cunningham persuasive. I’m sure the videos were revolting; I struggled even reading the court’s narrative summary of their contents. But the heart of the court’s reasoning is its concern that a jury might be so enraged by the videos that it would conclude that the defendant is a “bad person and deserves punishment, regardless of whether [he] committed the charged crime.” (Slip Op. at 31, internal quotation marks and citation omitted.) That concern makes sense when the evidence at issue is collateral to the charged offense, but it doesn’t make sense here. The videos were the crime, and the defense was that someone else downloaded them. If the jury accepted the defense, why would it conclude that, even though the defendant didn’t download the videos, the defendant nonetheless was a bad person deserving of punishment? Further, the prosecution played only two minutes’ worth of clips. Reasonable minds can certainly differ on this point, but that seems relatively restrained to me.

Even assuming arguendo that it was error to admit the videos, the court’s decision to award a new trial is suspect. Its harmless error analysis, (Slip Op. at 40-41) is almost nonexistent. The court never considers the strength of the government’s case (based on the opinion, it seems to have been quite strong) nor does it analyze likelihood of a conviction even in the absence of the two videos the court condemned (again, this appears to be pretty high based on the facts in the opinion). Appellate rulings finding error but declaring it harmless are sometimes unsatisfying or even contrived, but reading the facts of this case, it’s hard to resist the conclusion that if there was error, it had no impact on the jury’s verdict.

Finally, I can’t resist noting that after criticizing the district court for ruling on the Rule 403 issue without viewing the videos, the Third Circuit panel admitted that it also did not view the videos. (Slip Op. at 37.) The court’s explanation that the videos were “not presented” strikes me as awfully weak, since all exhibits to district court proceedings are part of the record on appeal and are available to the appellate court upon request.

Category: Evidence, Uncategorized | Tags: child pornograhy, cunningham, rule 403, third circuit

Repressed Memory Evidence

Posted on July 16, 2012 by Jessica Smith

In State v. King, the N.C. Supreme Court recently clarified the rules regarding the admissibility of repressed memory evidence. In King the defendant was charged with sexually assaulting his daughter, a minor. When she was approximately 17 years old, the victim began suffering panic attacks and pseudoseizures, acting like a young child, speaking of a “mean man” who might hurt her, and identifying her father as the “mean man.” The victim was diagnosed with conversion disorder and referred to therapy. During therapy the victim recounted an event that occurred when she was seven years old. Specifically, she recalled getting out of the bathtub and hurting her “private area.” She did not remember how the injury occurred, but remembered that her father said she had fallen. She also remembered bleeding and going to the hospital where she was treated for a vaginal laceration. When the therapist asked the victim what she would think if a friend related this incident to her, the victim said that she would “wonder about abuse,” but added that she did not believe her father would do that. The therapist stated that the mind can protect itself by “going somewhere else when something very difficult or painful might be happening.” About three weeks later, the victim experienced her first “flashback.” When her boyfriend’s arm brushed against her, the memory “hit” that as she had been getting out of the bathtub, her father came in, lifted her against the wall, threw her on the floor, held her down, and raped her. The victim recalled that her father had threatened to hurt her if she told anyone. After reporting this memory to her therapist, the victim was referred to social services. An investigation resulted in the charges against the defendant.

The defendant made a pretrial motion to exclude expert testimony about “repressed memory” and synonymous terms. The defendant argued that the evidence did not satisfy Rule 702 and Howerton (as noted by the King court, the recent legislative changes to Rule 702 did not apply in this case). A hearing on the motion resulted in a battle of crimson experts. The State called James A. Chu, M.D., associate clinical professor of psychiatry at Harvard Medical School, as an expert in repressed memory. The defendant offered Harrison G. Pope, Jr., M.D., professor of psychiatry at Harvard Medical School, also as an expert in repressed memory. Pope testified that the theory of repressed memory is not generally accepted in the scientific community. Chu disagreed. The trial court granted the motion to suppress. Although it found Howerton satisfied, it excluded the evidence under Rule 403.

The State appealed, believing that it could not proceed to trial under the rule of Barrett v. Hyldburg, 127 N.C. App. 95, 100 (1997). Barrett was a civil action for assault and battery and other claims, all based on the plaintiff’s repressed memories. Barrett held that “testimony regarding recovered memories of abuse may not be received at trial absent accompanying expert testimony on the phenomenon of memory repression.” It reasoned that expert testimony is needed “to afford the jury a basis upon which to understand the phenomenon and evaluate the reliability of testimony derived from such memories.” The State believed that once the trial court refused to admit expert testimony of repressed memory, Barrett prevented the victim from testifying. Agreeing with the State’s characterization of Barrett, the court of appeals affirmed. The State sought further review.

The N.C. Supreme Court began by holding that the trial court did not abuse its discretion by excluding the expert testimony under Rule 403. It concluded that even if expert evidence is both relevant and admissible under Rule 702, the trial court still may exclude it under Rule 403. Here, there was no abuse of discretion in the trial court’s conclusion that because recovered memories are of “uncertain authenticity” and susceptible to alternative possible explanations, the probative value of the testimony was outweighed by its potential to confuse or mislead the jury. The court was careful to note that it was not promulgating a general rule as to the admissibility of repressed memory evidence. It stated:

[W]e stress that we are reviewing the evidence presented and the order entered in this case only. We promulgate here no general rule regarding the admissibility or reliability of repressed memory evidence under either Rule 403 or Rule 702. As the trial judge himself noted, scientific progress is “rapid and fluid.” Advances in the area of repressed memory are possible, if not likely, and even Dr. Pope, defendant’s expert, acknowledged that the theory of repressed memory could become established and that he would consider changing his position if confronted with a study conducted using reliable methodology that yielded evidence supporting the theory. Trial courts are fully capable of handling cases involving claims of repressed memory should new or different scientific evidence be presented.

The court then considered the impact of Barrett. It agreed that a witness may not express the opinion that he or she has experienced repressed memory, stating that such testimony required expert opinion. However, it found that Barrett went too far when it indicated that a witness’s testimony that he or she suddenly remembered traumatic incidents from childhood must be accompanied by expert testimony. It stated: “if a witness is tendered to present lay evidence of sexual abuse, expert testimony is not an automatic prerequisite to admission.” The court then remanded for proceedings consistent with its opinion.

So what does this mean with respect to repressed memory evidence? It means this:

A victim may testify to his or her recollections of past events, including testimony that for some time period he or she did not recall, had no memory of, or had forgotten the incident.
A victim may not express the opinion that these recollections are the result of repressed memory.
To introduce evidence regarding the psychiatric theory of repressed memory, expert testimony is required.
Such expert testimony must satisfy Rule 702.
Even if such testimony satisfies Rule 702, the trial judge may exercise discretion to exclude it under Rule 403.

Category: Evidence, Uncategorized | Tags: barrett, expert testimony, howerton, king, repressed memory, rule 403

Photographs of Homicide Victims

Posted on April 19, 2010 by Jessica Smith

The State’s effort to introduce photographs of a homicide victim into evidence often is met with defense objections. One objection sometimes asserted is that the photographs are inadmissible as substantive evidence and must be limited to illustrative purposes. This objection likely will be overruled. As a general rule, photographs may be offered as substantive evidence or for illustrative purposes. G.S. 8-97. When admitted for illustrative purposes only, a limiting instruction should be given. See N.C. Pattern Instruction – Criminal 104.50 (photographs, etc. as illustrative evidence). Although many appellate decisions addressing Rule 403 issues with respect to photographs of the victim contain language referencing the use of the photographs for only illustrative purposes, this language seems to refer to the old North Carolina rule limiting the use of photographic evidence to that purpose. With enactment of G.S. 8-97 in 1981, photographs now can be used as substantive or illustrative evidence and our courts have indicated that the statute applies with respect to photographs of a homicide victim. See State v. Rogers, 323 N.C. 658 (1989).

By far the most common response to the State’s attempt to admit photographs of homicide victims is a Rule 403 objection. As a general matter, photographs of a homicide victim are admissible even if “gory, gruesome, horrible or revolting, so long as an excessive number of photographs are not used solely to arouse the passions of the jury.” Rogers, 323 N.C. 658. The North Carolina appellate courts only rarely have held such photographs to be unfairly prejudicial. State v. Robinson, 327 N.C. 346 (1990). Relevant cases include: State v. Hennis, 323 N.C. 279 (1988) (abuse of discretion to admit 35 autopsy and crime scene photographs of murdered mother and children for illustrative purposes, even with a limiting instruction; photographs were displayed on a large screen accommodating two images three feet, ten inches by five feet, six inches, side by side; eight- by ten-inch glossy photographs, most in color, were distributed to jurors one at a time for an hour); State v. Mercer, 275 N.C. 108 (1969) (photographs of victim’s dead body in a funeral home, with projecting probes indicating entry and exit points of bullet; evidence was uncontradicted as to cause of death and showed that victim was lying on a bed when shot; photographs were “poignant and inflammatory”), overruled on other grounds, State v. Caddell, 287 N.C. 266 (1975); State v. Johnson, 298 N.C. 355 (1979) (prejudicial error in sentencing phase of capital trial to admit photographs of the murder victim’s body, two months after his death, in advanced stages of decomposition and after having been partially ravaged and dismembered by animals); and State v. Temple, 302 N.C. 1 (1981) (criticizing admission of photographs of victim’s exhumed body lying in a casket).

On the other hand, cases finding that no abuse of discretion occurred when photographs of the victim were admitted are legion. A small sampling includes: State v. Walters, 357 N.C. 68 (2003) (close-up of murder victim’s face, showing blood on her face and a fly on her eyelid); State v. Haselden, 357 N.C. 1 (2003) (one close-up of the murder victim’s head and two of her body; defendant’s stipulation as to cause of death did not preclude use of the photographs); State v. Early, __ N.C. App. __, 670 S.E.2d 594 (Jan. 6, 2009) (eight autopsy photographs, displayed by monitor, showing location of wounds and whether they were entrance or exit wounds illustrated the manner of the killing and had probative value as to the defendant’s claim of self-defense); State v. Bare, __ N.C. App. __, 669 S.E.2d 882 (Dec. 16, 2008) (photographs of the murder victim’s partially decomposed body including three of the victim’s trunk and lower body, depicting the remains of a fire, mummification and decay of flesh, branches placed over the body, and his pants and shoes; two of a skull and jawbone; four of other bones, all largely devoid of flesh; one of a partially decayed hand; two of the underbrush where the victim was found; photographs illustrated officer’s testimony regarding the condition of the body when it was discovered, including that body had been partially eaten by animals and was missing part of an arm, fingers, and a hand); State v. Snider, 168 N.C. App. 701 (2005) (three autopsy photographs to illustrate the testimony of the medical examiner who testified to location of knife and gunshot wounds and that gunshot wound was the cause of death; photographs were projected onto a screen in the courtroom); State v. Gladden, 168 N.C. App. 548 (2005) (ten autopsy photographs to illustrate the testimony of pathologist; seven were of the victim’s body wrapped in plastic, three were of the victim’s head, with one showing the face; number of photographs was not excessive).

As an aid to the trial judge, or for the litigants when arguing for or against admissibility of this type of evidence, the following factors are relevant to the Rule 403 analysis:

What the photograph depicts
The level of detail
The size of the photograph
Whether the photograph is in color or in black and white
Whether the photograph is a slide or a print
Where and how it is projected or presented
The scope and clarity of the testimony it illustrates
The relevance of the scene depicted
The number of photographs
Whether the photographs will inflame the passions of the jury
Whether the photographs are unnecessarily duplicative of other evidence, including other photographs

Hennis, 323 N.C. 279.

Category: Evidence, Uncategorized | Tags: photographs, relevancy, rule 403

Rule 403: Old Chief and Stipulations to Prior Convictions

Posted on March 30, 2010 by Jessica Smith

Some crimes, such as felon in possession of a firearm, include as an element that the defendant has a qualifying prior conviction. When this is the case, the defense may seek to limit the prejudicial effect of the prior conviction by offering to stipulate to its existence and asking the trial judge to preclude the State from introducing evidence of the crime at trial. Often, Old Chief v. United States, 519 U.S. 172 (1997), will be cited in support of this argument.

Old Chief involved a federal prosecution for the crime of felon in possession of a firearm. So as to keep the details of his prior felony—assault causing serious bodily injury—from the jury, the defendant offered to stipulate to the prior conviction. The prosecutor objected, insisting that he had a right to prove his case his own way. The trial court rejected the defendant’s offer to stipulate and allowed the government to prove its case by introducing evidence of the prior crime. The defendant was convicted and he appealed. The United States Supreme Court held that because the nature of the prior offense raised a risk of a verdict tainted by improper considerations and the evidence was admitted solely to prove the fact of the prior conviction, the trial court abused its discretion under Federal Rule 403 by admitting the record of the defendant’s prior conviction where an admission was available as an alternative form of proof. Id. at 191. It explained:

In dealing with the specific problem raised by [the federal felon in possession statute] and its prior-conviction element, there can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant. That risk will vary from case to case . . . but will be substantial whenever the official record offered by the Government would be arresting enough to lure a juror into a sequence of bad character reasoning. Where a prior conviction was for a gun crime or one similar to other charges in a pending case the risk of unfair prejudice would be especially obvious . . . .

Id. at 185. The Court went on to note that when a prior offenses is far removed “in time or nature” from the current charges, its potential to prejudice the defendant is minimal. Id. at 185 n.8.

But does Old Chief apply in North Carolina? Noting that Old Chief was decided under federal evidence rule 403, several North Carolina Court of Appeals decisions have concluded that the case is not binding on North Carolina courts interpreting state Rule 403. State v. Little, 191 N.C. App. 655 (2008); State v. Jackson, 139 N.C. App. 721 (2000), reversed on other grounds, 353 N.C. 495 (2001); State v. Faison, 128 N.C. App. 745 (1998). However, the Court of Appeals has declined to reject Old Chief outright, opting instead to distinguish it from the facts presented. Jackson, 139 N.C. App. 721 (at defendant’s trial for carrying a concealed weapon, possession of a firearm by a felon, and resisting an officer, the State offered evidence of the defendant’s prior voluntary manslaughter conviction and the defendant offered to stipulate to having a prior felony conviction; the defendant was not “charged with any attendant offenses similar to his prior conviction of voluntary manslaughter, thus reducing the potential of prejudice in comparison to Old Chief”); Little, 191 N.C. App. 655 (defendant was charged with felon in possession, attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and discharging a firearm into occupied property; defendant offered to stipulate to the existence of a prior felony conviction; distinguishing Old Chief, the court concluded that given the charged crimes, “we cannot say admission of the record evidence of defendant’s prior involuntary manslaughter conviction in lieu of defendant’s stipulation . . . so risked unfair prejudice that it substantially outweighed the discounted probative value of the record of conviction”); State v. Fortney, __ N.C. App. __, 687 S.E.2d 518 (Jan. 5, 2010) (no abuse of discretion by allowing the State to introduce evidence of the defendant’s prior rape conviction, notwithstanding the defendant’s offer to stipulate to a prior felony conviction; the prior conviction was not substantially similar to the offenses being tried: drug possession, possession of a firearm by a felon, and carrying a concealed weapon).

Also, the North Carolina Court of Appeals has said that even if Old Chief applies in North Carolina, the issue cannot be raised on appeal unless the defendant offers to stipulate to the prior conviction at trial. Faison, 128 N.C. App. 745 (in the absence of a defense stipulation “[t]he State . . . had no alternative but to introduce evidence of Defendant’s prior convictions in order to meet its burden of showing an element of the crime charged”).

Category: Evidence, Uncategorized | Tags: old chief, prior convictions, relevancy, rule 403, stipulations

Relevancy: “Context,” “Circumstances,” and “Chain of Events” Evidence

Posted on March 17, 2010 by Jessica Smith

In an earlier post, I wrote about relevancy and guilt of another. In this post, I consider another relevancy issue: context, circumstances, and chain of events evidence. Consider this problem: At the defendant’s murder trial, the State seeks to admit evidence that the defendant was doing drugs before the murder. To keep the facts clean, assume that voluntary intoxication is not a defense. The defense lawyer wants to keep evidence of the defendant’s drug use out because it paints the defendant as a bad person. Defense counsel makes a Rule 401 objection, arguing that the drug use is irrelevant. The State responds, arguing that the evidence is relevant because a tip about the defendant’s drug use caused the officers to do a knock and talk that resulted in the defendant’s confession to the murder. How should the judge rule?

The objection is likely to be overruled. Evidence is relevant if it establishes the context or circumstances of an event or if it explains a chain of events. This rule sometimes is called the “same transaction” rule, the “complete story” rule, or the “course of conduct” rule. State v. Sexton, 153 N.C. App. 641 (2002). Chain of circumstances evidence “is admissible if it forms part of the history of the event or serves to enhance the natural development of the facts.” Id. Significantly, such evidence is relevant even if it incidentally establishes commission of a prior bad act (in my example, drug use). Id. When the chain of events evidence reveals a bad act, the courts typically find Rule 404(b) to be no bar to admission, on grounds that the evidence is being admitted for the proper purpose of completing the story of the crime by providing immediate context, and not for propensity. See, e.g., State v. Agee, 326 N.C. 542 (1990); Sexton, 153 N.C. App. 641. As should be apparent, this rule opens the door for all kinds of evidence. [Editor’s note: there’s also no hearsay problem with the officer testifying about the report he received regarding the defendant’s drug use, a topic I discussed here.]

If you are looking for cases on point, consider these: State v. Barden, 356 N.C. 316 (2002) (testimony of the murder victim’s supervisor was relevant to explain the circumstances of the crime); Agee, 326 N.C. 542 (evidence of the defendant’s possession of marijuana was admissible in a trial for possession of LSD because it gave rise to a chain of events or circumstances; “[d]iscovery of the marijuana on defendant[] . . . led . . . to the search of the defendant’s vehicle and the subsequent detection of the LSD”); State v. Miller, __ N.C. App. __, 676 S.E.2d 546 (May 19, 2009) (questions posed to the defendant by law enforcement officers relaying statements made by third parties were relevant; the questions gave context to the defendant’s responses and explained his subsequent conduct of changing his story); Sexton, 153 N.C. App. 641 (in an arson trial, evidence that the defendant was inhaling intoxicants shortly before the fire was relevant to establish the chain of events or circumstances leading to the fire; the fact that it incidentally involved the defendant’s alleged illegal use of drugs did not make it irrelevant); State v. Robertson, 149 N.C. App. 563 (2002) (in a trial for rape and kidnapping, the victim’s testimony that the defendant told her that he was an ecstasy dealer was relevant to establish context for the charged crimes, which incidentally involved illegal drugs). Related cases hold that evidence is relevant if it explains the course of a law enforcement investigation. See, e.g., State v. Patterson, 185 N.C. App. 67 (2007) (in a trial for possession of stolen property pursuant to a breaking and entering and possession of implements of housebreaking, a detective’s testimony regarding businesses that had reported break-ins was relevant because it explained the chain of events in the police investigation).

In this situation, the defense lawyer’s best strategy is probably a Rule 403 objection, asserting that even with a limiting instruction the jury will be confused as to the role of the evidence. See State v. Smith, 359 N.C. 199 (2005) (evidence properly excluded where the trial court concluded that the jury would have difficulty following a limiting instruction and understanding that the statements were not offered for their truth). As a fallback, the defense should request a limiting instruction, which must be given if requested. See N.C. R. Evid. 105.

Category: Evidence, Uncategorized | Tags: chain of events, context, relevancy, rule 401, rule 403

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