Academic journal article Washington Law Review

Swiss Cheese That's All Hole: How Using Reading Material to Prove Criminal Intent Threatens the Propensity Rule

Academic journal article Washington Law Review

Swiss Cheese That's All Hole: How Using Reading Material to Prove Criminal Intent Threatens the Propensity Rule

Article excerpt

Abstract: In United States v. Curtin, the Ninth Circuit, sitting en bane, held that Federal Rule of Evidence 404(b) permits a defendant's reading material to be introduced as evidence of his intent to commit a crime. The decision expressly overruled Guam v. Shymanovitz, an earlier Ninth Circuit opinion that called the admissibility of reading material into question. This Note argues that the Curtin decision failed to appreciate the extent to which reading material may reveal only a defendant's propensity to commit a charged crime, rather than his or her intent to do so. To reduce the possibility that impermissible propensity evidence will be erroneously admitted, this Note proposes that courts considering the admissibility of reading material under Rule 404(b) more closely examine whether the evidence requires an inference about the defendant's character or propensity to commit crimes.

INTRODUCTION

A man and his wife take a romantic walk on the beach to celebrate their anniversary. On the walk, the woman is fatally shot. Her husband sustains several life-threatening gunshot wounds to the right side of his chest, but he survives.1 Upon regaining consciousness, the man tells the police that a gunman approached the couple during their walk and shot them both. During the investigation, the police discover that the man has had several affairs over the course of his three-year marriage and has been named the beneficiary of his wife's two-million dollar life insurance policy. A search of the couple's home reveals a copy of Lad: Inside the Lad Peterson Murder,2 a true crime novel about a man convicted of killing his wife, as well as a first-aid book that includes chest diagrams and a chapter on treating gunshot wounds to the chest. The husband is charged with his wife's murder. At trial, the prosecution offers the theory that the defendant killed his wife and then shot himself to make his robbery story seem more plausible. To prove the defendant's intent to commit murder, the prosecution offers the first-aid book and the true crime novel into evidence. Citing the Ninth Circuit's decision in United States v. Curtin,3 the court admits both books over the defendant's objections. The defendant is convicted.

Think about the books you have on your bookshelf. If you were charged with a crime, could your reading material be used against you at trial under certain circumstances? In light of Curtin,4 should you reconsider purchasing a copy of The Bad Girl's Guide to the Open Road?5 Should you throw out your copy of How to Pad Your Expense Report. . . And Get Away With ItH6 Could your copy of Crime and Punishment1 prove the intent element of a murder prosecution? Could Les Miserables8 prove your intent to commit theft? When appellate courts uphold the admission of reading material to prove an element of a crime, they emphasize that the law does not criminalize the possession of reading material itself.9 Closer examination, however, reveals that a defendant is punished for his literary choices anytime a jury infers criminal intent from the defendant's lawful exercise of his First Amendment rights.10 The potential introduction of reading material as evidence of a defendant's intent can chill the exercise of First Amendment rights and discourage individuals from reading books that could be considered incriminating." Because free speech is "the matrix, the indispensable condition, of nearly every other form of freedom,"12 courts should be wary of any practice that infringes upon or chills this right.13

In Curtin, the Ninth Circuit, sitting en bane, upheld the practice of admitting reading material under Federal Rule of Evidence (Rule) 404(b) to prove the defendant's intent to commit the charged crime.14 This Note asserts that cases considering the admissibility of reading material have failed to provide a consistent framework for analyzing this kind of evidence. These cases have also exacerbated existing confusion about the distinction between a defendant's propensity to commit a crime and his intent to do so. …

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