Reconsidering the Standards of Admission for Prior Bad Acts Evidence in Light of Research on False Memories and Witness Preparation
Tortora, Jason, Fordham Urban Law Journal
Introduction I. Prior Bad Acts Admissibility and the Incentives It Creates A. Origins of the Bar Against Prior Bad Acts Evidence and Its Exceptions B. Modern Jurisprudence and the Bar Against Prior Bad Acts Evidence 1. Huddleston v. United States C. Situating the Bar Against Prior Bad Acts Evidence Among the Rules of Evidence: A Story of Prejudice 1. Limiting Prejudice Is at the Roots of Many Rules of Evidence, and Is Effectuated Through Witness Preparation 2. The Bar Against Prior Bad Acts Evidence: Limiting Prejudice D. Courts Divided Along Fears of Undue Prejudice: Huddleston Leniency Versus Higher Standards E. Higher Standards of Proof of Commission Require Greater Amounts of Detail by Witnesses II. The Risk of False Memories and Misinformation A. Witness Preparation: Foundation of Trial Preparation and Potential Source of Falsehood 1. Witness Preparation Is Fundamental to Litigation 2. The Ethics of Witness Preparation B. Risks of Witness Preparation in Creating False Testimony 1. Analysis from Legal Scholarship: The Risks of Even Careful Witness Preparation 2. Psychological Research on Memory and Witnesses: Reason for Concern About False Testimony and More Questions III. Adopting Huddleston to Reduce the Risk of Prejudice A. The Minimal Benefits Requiring a Higher Standard of Proof of Prior Bad Acts B. The Risk of False Testimony Created by Requiring Greater Specificity by Witnesses C. Witness Preparation and the Rules of Evidence: Is Adopting Huddleston the Best Solution to a Difficult Problem? Conclusion
A prosecutor is handed a complaint charging harassment and a harrowed woman follows him into his office. The charges stem from an ex-boyfriend repeatedly making threatening calls to her over a recent weekend. She saved a voicemail where her ex-boyfriend said he expected to see her at a funeral. She then explains that two weeks earlier, he showed up at her door uninvited, called her names, and threatened her life before leaving when she threatened to call the police. On more than a dozen other instances over the past six months, she says he followed her by car, called and hung up, or waited outside her house. She can't give exact dates, and adds that when they were dating a year earlier, her ex-boyfriend hit her but she never reported it.
The prosecutor knows that the defendant is entitled to a jury trial on the harassment charge, reducing that charge is not an option, and it is a weak case. Having spoken with defense counsel, he knows that the defendant is not interested in taking any plea that would involve an order of protection for the complainant, and that he can't rightly plead the case without securing an order of protection. The case needs to go to trial, and yet it will require a Herculean feat to convince a jury to convict a man of harassment on the sole basis of a few phone calls and an ambiguous voicemail.
In order to convict the defendant, the prosecutor will need to show the jury evidence of the defendant's prior uncharged conduct towards the complainant to explain their relationship and the hostility of the phone calls. The People will be unable to prove the defendant's intent to terrorize without evidence of his prior phone calls and conduct towards the complainant. The complainant's memory is unclear, however, and she does not provide specific details or dates for the defendant's prior conduct. The prosecutor informs the complainant of the prospects at trial. He knows that the credibility, detail and likelihood of the prior conduct will determine whether the prior bad acts evidence will be admitted in his jurisdiction. (1) Whether the prior bad acts are clear and particularized may therefore decide the case before it is even begun. …