Tuesday, April 12, 2011

Prior Bad Acts Evidence & Larry Fidler's Unique Spin

These are all excellent questions that I will try to answer:

1. PRIOR BAD ACTS EVIDENCE. . Regarding the prior bad acts, it is our legal tradition going back to 17th century England that a man may only be tried and punished for what he is charged with doing, and not WHO HE IS as a person, i.e. not based on his character. It is especially not permitted to put on evidence of a person’s character and then argue that he had the PROPENSITY to commit the crime, such as the argument “we know he did it because this is what he does”.

Thus so called character-propensity evidence is disallowed and this prohibition is set forth in California Evidence Code Section 1101.

However, as long as the prior bad acts evidence is not being used for an improper purpose, it may admitted to show the identity or the perpetrator, his intent, lack of mistake or accident, or motive.
But to admit bad acts evidence for any of these purposes, certain judicial safeguards have been enacted that must be found by the trial judge first. The main safeguard is a very factual nexus between the prior bad acts and the crime charged; are they so similar as to suggest that if the defendant committed the prior bad acts he must have committed the charged crime?

The strongest such connection must be made to admit the bad acts to show identity.

In addition, if you want to admit the bad acts to show intent, or the lack of accident or mistake, the identity of the doer cannot be in dispute. Because when you are using bad acts to show some state of mind, you must start with the assumption that the defendant is the doer, and you are simply trying to determine what his mindset was when he did it (was it intentional or an accident).

In this case Judge Fidler found before he settled the jury instructions in Spector2 that the more stringent factual connection between the bad acts and the charged crime (called the “Ewoldt” test, from People vs. Ewoldt”) had NOT been satisfied by the evidence, and therefore the bad acts would not be considered by the jury in the issue of “identify” (who the shooter was).

Where Fidler went wrong is he struck out “identity” from the instruction and inserted words that mean the same thing. He tried to draft around the prohibition, but tripped over it anyway.
As to “intent” or “accident” or “mistake”, because if Spector put the gun in Lana’s mouth it was murder under an implied malice theory, IT DID NOT MATTER whether Spector pulled the trigger ACCIDENTALLY or INTENTIONALLY—it was still an inherently dangerous felonious act likely to result in death, and therefore malice (2nd degree) murder. Therefore, intent and accident were not issues in the case, and the bad acts could not be justified on that basis.

That leaves “motive”.

But the governing appellate case law (the precedent), including that decided by the very division of the court that will decide this appeal, holds that in order to admit the bad acts to show motive, the same stringent “Ewoldt” test required to admit the evidence to show identity must be met. And Judge Fidler HIMSELF found when jury instructions were being decided that the Ewoldt test was not met by the evidence. Therefore, the admission of the bad acts could not be justified to prove motive.

2. EVIDENCE THAT LANA CLARKSON WAS SUICIDAL. This evidence did not come in as “prior bad acts” or character evidence at all. It was admitted under the “state of mind” exception to the hearsay rule for the limited purpose of trying to prove what Lana Clarkson’s state of mind was when that gun went off, in aid of answering the ultimate question in the case: who put the gun in Lana’s mouth, did she or Spector?

3. EVIDENCE THAT SPECTOR SAID THAT ALL WOMEN ARE C-WORDS WHO DESERVE A BULLET IN THEIR HEADS. This is not bad acts or 1101 evidence at all, and right off the bat the court improperly lumped this evidence into the “bad acts” jury instruction, when it should have been instructed on (if admitted at all) with its own stand alone instruction.

But this evidenced was admitted as something called a “generic threat”—a general threat against a specific class of persons (police officers) under specified circumstances (If a police officer ever tries to arrest me, I will kill him instead of going back to prison.)

It is a form of state-of-mind evidence that was admitted to show Spector’s state of mind on the night the gun discharged, by trying to prove he intended to kill Clarkson because she was a woman.
The problem is that the evidence does not qualify as a THREAT at all. To as that all women “disserve” a bullet is not the same thing as saying (for example) if a women ever did X I would put a bullet in her head.

Second, the statement was 10 years ago, in passing, as Spector was being escorted out of a Joan River’s Christmas party. It was too old and too remote in time to shed light on Spector’s tate of mind in 2003.

3. WHY PRIOR CASES MATTER. First, we are not talking about prior TRIAL COURT decisions—those are not precedent. We are talking only about PUBLISHED decision of the courts of appeal (or in the case of Ewoldt, a published decision of the California Supreme Court). Unlike a civil law system (like France, and one state in the United States, Louisiana) where everything legal is governed by codes and statutes, we follow the English common law tradition. We start with some basic common law rules that were created by judges in published appellate opinions, and those rules are refined and develop over time. The legislature can override those common law rules with a statute (as long as the resulting statute does not offend the constitution) or it can incorporate those common law rules into a statute—as it did with California Evidence Code Section 1101.
The published appellate case law in our system is important to give factual context and texture to the bare bones rules to give the law more predictability and to give judges more flexibility.
That is why some people have difficulty in law school.

Unlike many college classes where the professor gives you a body of knowledge to memorize for an exam, law school consists of reading landmark published cases that illustrate some broad principle of the law, and the student must glean the principle that the holding of the cases stands for and then apply that principle to a completely different fact situation than that presented in the published opinion.

So, what do prior decided cases have to do with it? It is within those published opinions that our laws reside.