The special balancing test

1)      Describe the special balancing test used in evaluating the admissibility of prior uncharged felony convictions of a defendant who takes the stand.

The balancing test that applies to this type of evidence is that of probative value versus prejudicial potential. On one side, if the conduct illustrates a pattern of behavior, or has some other value as evidence in support of the act alleged, it is appropriate under Rule 401(b) of the FRE for a trial judge to allow it into evidence. (Weeks, 2005)  On the other hand, the jury may be tempted to assign probative value to prior acts as they relate to the charged act. (Weeks, 2005)  (which is why prior bad acts are generally inadmissible to begin with). The jury may err on two bases with respect to this type of evidence. (Weeks, 2005)

 They may decide the case at hand based sole, or disproportionately upon a perceived pattern of behavior, or they may overestimate the probative value of such evidence. (Weeks, 2005)   In order to admit such evidence, a trial judge must determine that the true probative value of the evidence significantly outweighs these considerations.

In terms of prejudicial potential, numerous studies have confirmed the notion that juries are very likely to weigh prior bad acts as significant elements of their consideration. (Weeks, 2005)   Juries are far more likely to convict or find judgment against defendants in cases where prior bad acts are introduced as evidence. (Weeks, 2005)  On a legal bases, the rule (403(b) ) only prohibits such evidence being introduced solely on the basis of character. (Weeks, 2005)   It is considered relevant as evidence of pattern of behavior, but the appellate law for this type of evidence is complicated, and often, decisions are based upon the particular facts of a given case, rather on an overall finding of admissibility. (Weeks, 2005)

2) You are the investigator at a homicide. Describe the steps you would follow to maintain chain of custody of the evidence.

The first step I would take as an investigator is to assure that the crime scene is secured and limit access to crime scene technicians and investigators on the case. (Chval, 2006)  For each piece of evidence, I would have it flagged with a number, photographed, and a written description of the evidence logged to correspond to the number. (Chval, 2006)I would then have the evidence collected in the appropriate manner by a technician, places in a tape-sealed container, and signed by the technician who took the evidence across the seal. (Chval, 2006)

I would then make sure that all evidence from the scene is transported in a vehicle manned by officers to evidence storage. (Chval, 2006) The time of transport and the transporting officers’ names and ID numbers should also be logged. The same officers should move the evidence into department storage and log its entry time and date. (Chval, 2006)The clerk in the evidence storage facility should log time and date and identity of anyone who wishes access to the evidence, and should only give access to legally eligible parties. (Chval, 2006)

At trial, I would have whichever attorney is planning to introduce the evidence sign it out, and have it escorted with an officer to the courtroom. (Chval, 2006) The technician who collected the evidence should take the stand, verify the seal on the container and his/her signature under oath, break the seal, and verify that the contents match the log. (Chval, 2006) All logs should be available to verify chain of custody. (Chval, 2006) Discuss whether or not you think it is good law to not allow the prosecution to call character witnesses for the defendant until the defendant calls character witnesses for himself/herself.

Cite a case where a character witness was called by the defense, allowing the prosecution to call rebuttal character witnesses I believe that it is good law not to allow character witnesses by the prosecution unless the defendant calls their own. Character evidence is inadmissible in a general sense to prove the commission of a particular act. To allow it would be tantamount to allowing convictions of people who have bad reputations or are unpopular.

Character evidence has no probative value for the prosecution. If a defendant calls character witnesses to refute the central elements of a charge, it then becomes probative on the part of the prosecution to call character witnesses in rebuttal. These witnesses are still not probative in and of themselves, but as rebuttal to defendant claims, they accomplish two goals: first they rebut claims that an act was “out of character” for a defendant, and second, they offer evidence as to the credibility of the defendant’s witnesses.

The US Supreme Court case of Michelson v. United States (1948) centered on the admissibility of character witnesses. While in this case the prosecution did not call their own character witnesses, but rather, cross-examined the defendant’s, the opinion discusses the notion of character witnesses being called by both sides and the care with which such a decision ought to be made by parties, or allowed by judges. (Michelson, 1948)  In addition to setting off a “he said-she said” argument on an only tangentially probative issue, character witnesses very quickly venture into territory that could properly be called hearsay, which is inadmissible under a whole different set of rules. (Michelson, 1948)

Work Cited

Chval, K. (2006) “Chain of Custody”. Higher Education EdTech Magazine, May/June 2006. Pg. 38-40.

Michelson v. United States, 335 U.S. 469 (1948)

Weeks, G. (2005). “Rule 404(B) Misconduct Evidence” Speech By Judge Weeks to Superior Court judges Conference, Ashville, NC on June 21-24, 2005. Retrieved May 19th, 2009 from University of North Carolina website: http://www.sog.unc.edu/faculty/smithjess/200506conference/200506WeeksUncharged.pdf