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
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 Firm.