Yesterday I noted that CNN/TruTV’s legal commentator Jami Floyd questioned the legality of the prosecution’s “prior bad acts” witnesses in the Phil Spector case. By “legality,” I mean she expressed the opinion that the California appeals court would deem the evidence to have been prejudicial.

I’ve been thinking for some time about the question of “prior bad acts” evidence, whether it seems fair, and how it came to be part of California law. It isn’t an easy question. And I certainly won’t pretend to know how California judges feel about the law. But what I want to know is: where did the rule concerning “prior bad acts” come from? Has the U.S. Supreme Court ever ruled on it? (Yes.) In other words, what was really going on in Phil Spector’s trial?

The Public Defender Dude blog claims that the “prior bad acts” rule flaunts centuries of tradition that “one’s character cannot be used against one in a prosecution.” The “Dude” may be correct about character, but are prior bad acts really character flaws, or are they really behaviors—behaviors that can be proven to have occurred, factually proven?

As a reminder, in both Spector trials, several women testified that they had been dating Spector or working with him in his home or a hotel room when he restrained them from leaving his presence by waving a gun in their faces and threatening to pull the trigger.

What is “evidence of prior bad acts”?

When lawyers refer to “prior bad acts” evidence, they generally mean the California Evidence Code, Sections 1100-1109. Like all legal “codes,” the language of this one is intricate and arcane. You need a legal degree to parse it.

Attorney Vincent Dicarlo in a  Findlaw article, “Summary of the Rules of Evidence,” discusses the California Evidence Code and explains that:

• …while evidence of prior bad acts is generally not admissible to show that a person acted similarly in the present case, it may be admissible to show motive, plan, intent, lack of mistake or, in federal court, to impeach a witness's credibility. Evid. Code § 1101(b); Fed. Rules Evid. 404(b)….However, where the value of evidence for its proper purpose is slight and the likelihood that it will be used for an improper purpose by a finder of fact [the jurors] is great, a court may, in its discretion, exclude the evidence even though it would otherwise be admissible. Evid. Code § 352; Fed. Rules Evid. 403. In this situation, the probative value of the evidence is said to be outweighed by its prejudicial effect. …Prejudice means improper harm. The fact that evidence may be extremely harmful to one party's case does not necessarily make it prejudicial.

I am not a lawyer, but I am an expert reader of English. I read this to mean, in plain English, that Judge Fidler in the Spector case determined that the “prior bad acts” witnesses were acceptable in order for the prosecution to show that Spector had “intent or lack of mistake” to restrain and threaten Ms. Clarkson with a loaded weapon. Thus, the charge of second-degree murder relied on the “prior bad acts” witnesses, while the charge of manslaughter did not. In addition, it’s clear that Mr. Dicarlo interprets damning evidence as something different from prejudicial evidence.

(In addition, contrary to what Ms. Floyd believes, it looks as if Mr. Dicarlo would say that it is entirely the judge’s call whether or not to deem such evidence as prejudicial [“a court may, in its discretion’]. Perhaps, though, “a court” may be not only the circuit court of Judge Fidler but also the California appeals court.)

In other words, I suspect that under California law the “prior bad acts” witnesses were perfectly acceptable in the Spector trial.

Should “prior bad acts” be used against a defendant?

That’s what really interests me.

Is “The Public Defender Dude” correct that this flies in the face of centuries of tradition? If so, how did it find its way into the California Evidence Code?

The tradition of character evidence

A quick Google search seems to indicate that the “Dude” is incorrect. Apparently character evidence has been used in trials and politics for millennia, not merely centuries. (See Douglas Walton’s The Problem of Character Evidence: “Wigmore also noted that character evidence was ‘resorted to without limitation’ in early English law.”) Peter Tillers also has an interesting blog on the issue, Tillers on Evidence and Inference.

Since I have no desire to write a dissertation on evidence, I will skip ahead to California’s law, which appears to have been enacted in 1995, a year after California voters passed a ballot proposition known as “Three Strikes and You’re Out.” This latter proposition sends repeat offenders to prison for a very long time. So, I’m going to make some assumptions (in lieu of having been able to find a brief history of the “prior bad acts” law): first, California voters in the mid 1990s were concerned about rising crime rates and recidivism. They feared that courts too often were letting repeat offenders off “on technicalities.” They concluded that case law, which prohibits prior criminal records from being admitted into evidence against a defendant, was inadequate to protect the public from habitual evil doers. In addition, apparently Congress in 1994 passed something called “Rule 413” that permitted the use of evidence of prior sexual assaults.

(The more I search, the more often I find the concept of “prior bad acts” evidence associated with sex acts or behavior with “intimates,” including spouses, children, and “dates.” This is also similar to its use in the Spector trial. The sexual overtones were heavy: Ms. Clarkson mistook Spector for a woman before he invited her into his home. A gun is a Freudian phallic symbol.)

Inadmissibility of Criminal Records

I understand why criminal records can’t be used against a defendant unless he chooses to testify in his own defense. After all, each trial is a self-contained unit—each crime must be judged separately. The fact that a defendant has committed crimes before is not proof he committed any other given crime.

So, why should behavior that did not result in conviction of a crime (“prior bad acts”) be admissible, even if the defendant chooses not to testify? Logically, one might say that it should not, unless you acknowledge that past behavior is in a different category from past crimes. And, if so, you would have to say that past good behavior should also be admissible; in other words, a defense should be able to introduce character witnesses (which they are permitted to do).

The issue of fairness is a balanced concept. It isn’t only the defendant for whom the evidence must be fairly admitted. The prosecution (“the people”) also are entitled to fair treatment. That’s why some aspects of cases such as the Brandon Craig trial strike me as unfair: Craig’s criminal record was inadmissible, but the records of his accusers were. The legal rationale seems to be that if a person testifies, then his/her character may be impeached by cross-examination relating to criminal records. So, when a prosecution witness has a record, it’s “fair” game, but if the defendant “remains silent” his record is not.

My conclusion

So where does this leave me? Is “prior bad acts” evidence fair or not? Frankly, I still feel it’s fair. My logic shows that it fits in with other trial practices, and all the logical syllogisms in the world to the contrary won’t convince me that someone’s past behavior isn’t relevant. Behavior is a predictor. We all know a tiger can’t change his stripes. Yes, people can reform themselves. But if a defendant has repeatedly done something and then he’s suspected of committing a crime very much like it, his past behavior is relevant. The jury should hear about it. The more jurors know, the better their decision-making process.

After all, “prior bad acts” aren’t the only past behaviors admitted into evidence. Remember Neil Entwistle and his web-surfing to “escort” websites?

Dr. Susan Sunwolf has written extensively about the jury decision-making process. She identifies several errors that jurors can make in deliberations when they aren’t provided with “the whole story.” She correctly understands that “jurors are human,” and when they find gaps in the story the lawyers tell them, they won’t be able to help themselves—they have to fill in the gaps. Wouldn’t it be better if the lawyers filled in the gaps for them?

Rhetoric of “Past Bad Acts”

I have a suggestion for reform of courtroom use of “prior bad acts” evidence, though. I think that judges could manage the prosecution’s use of such evidence so that it would be less “prejudicial” and more clearly relevant to the crime at hand. My idea has to do with traditional “forensics,” that is, traditional argumentation.

In classical rhetoric, the “proposition” presents its case first (the prosecution). The “opposition” (the defense) argues against the proposition next. The proposition then has an opportunity to rebut the opposition’s arguments. The opposition has a chance to rebut the rebuttal.

In a trial, the prosecution goes first. The defense may or may not go second. If the defense presents an affirmative case, the prosecution rebuts it. Then the defense may present a surrebuttal.

Consider for a moment how the Spector trial would have unfolded had the judge permitted the “prior bad acts” evidence, but only in the prosecution’s rebuttal case:

• Prosecution: The case focuses on the crime, specifically Spector’s behavior after the shot was fired (wiping the gun, for instance) and the forensic crime-scene evidence of homicide (as opposed to suicide).
• Defense: If the defense felt the case was weak, it could decline to present its own case. Then no “prior bad acts” would be admitted. If the defense presented a case based on suicide, then it would focus on the victim’s character (depressed and suicidal) and the forensic crime-scene evidence of suicide.
• Rebuttal: The prosecution might then bring on expert witnesses to point out evidence against suicide (having previously focused on homicide evidence). Finally, the prosecution could introduce the “prior bad acts” evidence  to show that its charge of second-degree murder is supported (as opposed to merely manslaughter, which is unintentional homicide).
• Surrebuttal: In cross-examination, the defense would by then have impeached the character of the “prior bad acts” witnesses and demonstrated how different from the victim they are. In addition, the defense could now bring on character witnesses for Spector.

From a purely rhetorical perspective (that is, the effects on the jury), the defendant’s “good side” would be the last impression left on the jurors. The evidence of the crime itself would be the first impression, unpolluted by the potentially prejudicial effects of the “prior bad acts.” And no one would think the prosecution was presenting these “prior bad acts” as “modus operandi” but only as “evidence of intent.”

In fact, if prosecutors would be more “judicious” in their use of “prior bad acts,” it would actually be more effective. Remember the Michael Jackson trial? The prosecutors presented “prior bad acts” evidence in its case-in-chief, too. All that did was boomerang on them. Most of the witnesses were ineffective. Some refused to say anything negative about the defendant. This permitted the defense to focus on impeaching the “accuser and his mother” quite effectively. Then the prosecution rebuttal was forced to focus on the accusers’ character witnesses rather than attacking anything affirmative in the defense case.

Just a suggestion: Withhold “prior bad acts” evidence until the rebuttal.