The basic rule of karma is what goes around comes around. While in everyday life this principle may appeal only to the superstitious, the harsh reality is that in a court of law one mistake or bad act from your past can come back to haunt you.
In New York courts, the rule regarding the admissibility of uncharged prior bad acts is derived from the landmark case People v. Molineux, 168 N.Y. 264 (1901). Put simply, the admissibility of uncharged prior bad acts is dependent upon why the evidence was proffered. Generally, courts will deem evidence of uncharged prior bad acts inadmissible if it is proffered as pretext to demonstrate that the defendant has a propensity to act in a certain way. However, evidence of a defendant’s uncharged prior bad acts is admissible if it demonstrates something other than propensity, such as intent, motive, knowledge, common scheme or plan, identity of the defendant, or necessary background information and context.
Recently, the Court of Appeals and the Third Department decided two cases that demonstrate the increasing scrutiny courts apply when determining the admissibility of evidence pertaining to uncharged prior bad acts: People v. Leonard, 29 N.Y.3d 1 (2017) and People v. Anthony, 152 A.D.3d 1048 (3d Dep’t 2017). While on the surface these two cases may seem to warrant similar conclusions of law as to the admissibility of the evidence at issue, a subtle distinction can be gleaned to give insight as to how courts analyze this evidentiary issue.
In Leonard, the Court of Appeals reversed the finding of the trial court holding that the trial court erred in admitting Molineux evidence. The defendant was charged with sexual assault. At trial, the victim’s boyfriend testified that the defendant approached the victim, who at the time was intoxicated and vomiting, and then knelt by the victim and inappropriately touched her while her pants were down to her knees.
In an attempt to elicit testimony from the victim regarding an earlier incident of sexual abuse by the same defendant in which the circumstances were nearly identical, the prosecutor filed a “Molineux Proffer.” The testimony described how on an earlier occasion the victim was intoxicated and asleep on her coach when the defendant approached her, pulled down her pants, and inappropriately touched her. The prosecutor argued that this testimony was relevant because it demonstrated intent, absence of mistake, background, and a common scheme or plan. Over the defendant’s objection, the trial court ruled that the testimony could be elicited.
However, on appeal, the Court of Appeals found that the testimony regarding the prior incident of sexual abuse was propensity evidence that merely sought to show that the defendant committed the charged crime because he acted that way on a prior occasion. Notably, the Court stated that the testimony at issue did not fall into the background evidence exception because it was “not necessary to clarify their relationship or to establish a narrative of the relevant events.” Leonard, 29 N.Y.3d at 8.
Shortly after Leonard was decided, the Third Department confronted a case with the identical evidentiary issue. In People v. Anthony, the Third Department affirmed the trial court’s ruling that the evidence fell within recognized Molineux exceptions. In Anthony, the victim and defendant were acquainted through a course of drug deals. During the course of drug deals, the defendant, a member of the Bloods gang, invited the victim to join the gang multiple times. The victim rejected each invitation. Unfortunately, one drug deal went south when the victim rejected a gang invitation, which incensed the defendant. The defendant pulled out a gun and fired multiple shots at the victim, ultimately killing him. The prosecutor elicited testimony regarding the defendant’s gang membership and his earlier attempts to recruit the victim, arguing it provided context for the crime. The trial court admitted the testimony.
On appeal, the Third Department affirmed the trial court’s ruling. The Third Department noted that the defendant’s “purported gang membership fell within several Molineux exceptions, including placing testimony regarding defendant’s earlier attempt to recruit the victim in context.” Anthony, 152 A.D. at 1051. Unlike the Leonard Court, the decision in Anthony in no way expressed concern for propensity evidence.
These two cases shrewdly present how courts carefully scrutinize evidence in cases where prosecutors attempt to admit uncharged prior bad acts. In Leonard, the court deemed the evidence a mere subterfuge to demonstrate the defendant had a propensity to act a certain way. The Leonard court highlights that a court will not buy the argument that an identical uncharged prior bad act should be admitted because it is necessary provide background information or context out of fear that it will give rise to a propensity inference by those jurors who may not be thinking critically. Rather, a court is much more likely to admit evidence of prior uncharged bad acts if the evidence necessarily elucidates a narrative of events, like in Anthony.
So, for the would-be criminal defendants out there, remember: your past just might come back to haunt you.