Almost all evidence that the State presents against a criminal defendant is prejudicial. In determining whether the evidence is admissible, the Judge must decide whether the evidence the government wishes to present is unfairly prejudicial. The basic rule is that when a jury decides a criminal case, the decision should be based only on whether the defendant committed the alleged crime. The defendant’s character should not be at issue unless the defendant raises his character in his own defense.
Unfortunately, there are several exceptions to the general rule which allow the prosecution to attack a defendant’s character if they couch the attack as something other than a character attack. Under Federal Rule of Evidence 404, character evidence is not admissible to prove conduct, but there are exceptions. In Nebraska Revised Statute §27-404(2), other crimes, wrongs, or acts which are not admissible to prove character may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identify, or absence of mistake or accident.
Often in criminal cases the prosecutor will offer evidence of an unrelated bad act by a defendant and claim that it is not character evidence but that it is used for one of the above purposes. The criminal defense attorney must be prepared to deal with this character attack.
In Nebraska before the State can use this type of evidence against a criminal defendant, the Judge must first determine by clear and convincing evidence that a prejudicial event actually happened and then must determine whether the prosecutor is offering it for a valid purpose under §27-404(2) and finally whether the admission of the evidence would unfairly prejudicial the defendant under Nebraska Revised Statute §27-403.
Most of the time the Judge will find that the matter has been proven by clear and convincing evidence and the bad character evidence will get in. The criminal defense lawyer must be prepared to deal with that evidence.
Dealing with character evidence can be tricky, on one hand if the criminal defense attorney does not address it at trial, the jury may put too much weight on that evidence. On the other hand, if the lawyer fights it too much, it may appear that the focus of the trial is the defendant’s character or the character evidence rather than if the government can prove beyond a reasonable doubt that the defendant committed the crime charged.
For example, in a sexual assault case where a cab driver is alleged to have had unlawful sexual contact with a passenger, the government may try to call another witness with whom the cab driver attempted to have unlawful sexual contact in the past. Even though there is only one charge of third degree sexual assault and unlawful sexual contact, the prosecutor calls a second witnesses who says that she was also sexually assaulted by the cab driver. The prosecutor tells the judge he is not offering this evidence not to prove the cab driver is a serial rapist, but only to show intent, lack of mistake, or common scheme or plan. This can be very difficult for the defense attorney who thought he was initially defending one sexual assault case, but may feel that he is now defending two sexual assault cases at the same time. In these types of cases, the defense attorney should request a limiting instruction both before the witness who claims the uncharged conduct occurred testifies and after she testifies as well as during the jury instructions. This should make it clear to the jury that there is a limited purpose for that second alleged person to testify about the assault.
The next decision the attorney will have to make if the court allows the information regarding the second alleged uncharged sexual assault will be how to cross examine the alleged second victim. While the credibility of the victim must be tested, the criminal defense attorney has some concerns that he does not want to make the witness any more important than she is to the proceedings.
Another consideration is that if the client testifies, whether the client addresses what the witness said about the prior bad act. In many cases, the best course of action is simply not to ask the client questions about the other alleged misconduct. The reason for this is because if the defendant opens the door on direct examination. The prosecutor may then cross examine the defendant not only about the alleged sexual assault, but also about the uncharged misconduct. This becomes extremely difficult if the defendant intends to deny any sexual conduct with either witness or claim that both witnesses are lying. Obviously in many of the instances the alleged witnesses do not know each other and therefore it would be impossible for them to conspire against a criminal defendant. The deeper the defendant gets into denying the allegations about the uncharged sexual assault, the more the prosecutor will attack his credibility about the charged sexual assault.
The bottom line is if the government presents character evidence, it can complicate the case for the criminal defense attorney and his client. However, these cases can be won. In a recent case with the above mentioned scenario, I limited my cross examination of the witness claiming the uncharged conduct. When my client testified, I did not ask any questions about the witness pertaining to the uncharged conduct. I was able to convince the jury to focus on the charge and not the extraneous evidence the government was trying to use to attack my client’s character. In the end, my client was found not guilty. However, navigating the bad character evidence is a mine field and, while things went well and my client was found not guilty, there were certainly several difficult judgement calls made throughout the trial to effectively deal with the allegations of uncharged misconduct.
Finally, I was fortunate that the government did not claim that the other sexual conduct was a sexual assault, that would have fallen under Federal Rule of Evidence 414 or under Nebraska Revised Statute §27-414. In these cases, the evidence is not as limited and therefore is offered by prosecutors to show that the defendant has the propensity to commit acts of sexual misconduct. This is very common in child sexual assault cases and must also be dealt with in a very careful manner.
If you or a loved one have been charged with sexual assault, contact the attorneys of Berry Law.
