It was a line spoken by Captain Louis Renault, the French prefect of police, played by Claude Rains in the 1942 U.S. film Casablanca. The context was a scene in which the Nazi, Major Strasser, is shot by Humphrey Bogart’s character, Rick Blaine. Renault was a witness to the shooting but saves Rick’s life by telling the investigating police to “round up the usual suspects”.
Rather than an example of good police work or prosecution, it is the phrase by which people habitually suspected are arrested in response to a crime. It is a way to find a scapegoat rather than the actual perpetrator of the crime.
This is also an example of what the law refers to as propensity evidence. Propensity evidence is evidence that a person engaged in prior bad behavior and is therefore more likely to have engaged in the bad behavior again so to be guilty of the charged offense. Propensity evidence comes in two flavors. Uncharged prior bad acts (uncharged misconduct) and prior convictions. Each presents different problems. I will limit this discussion to uncharged prior bad acts or other acts or uncharged misconduct.
Three centuries ago, there was extremely liberal admissibility of uncharged misconduct evidence during the era of the Star Chamber. Reed, Trial by Propensity: Admission of Other Criminal Acts Evidenced in Federal Criminal Trials, 50 U. Cin. L. Rev 713 716 (1981); Gregg, Other Acts of Sexual Misbehavior and Perversion as Evidence in Prosecutions for Sexual Offenses, 6 Ariz. L. Rev. 212 (1965). The view of letting in all past ill deeds was wholly in accord with the chamber’s inquisitorial system.
Almost since Wisconsin became a state, Wisconsin courts have rejected the Star Chamber approach by finding that evidence of uncharged misconduct evidence is inadmissible to establish the defendant’s general character, disposition, or criminal propensity. Fossdahl v. State, 89 Wis. 482, 485 (1895); Boldt v. State, 72 Wis. 7, 15-16 (1888). This rejection of other act evidence in Wisconsin continues today. There is no presumption that other acts evidence is admissible. The presumption under Rule 404(b) is against admissibility. State v. Scheidell, 227 Wis.2d 285, 294, 595 N.W.2d 661, 667(1999), reversing, 220 Wis.2d 753, 584 N.W.2d 897. See also United States v. Simpson, 479 F.3d 492, 497 (7th Cir. 2007). Today, the assumption is other act evidence should be excluded, not admitted, at trial. Scheidell, supra. Wisconsin courts were thus in accord with pre-Revolutionary War colonial courts and English courts. Natali and Stigall, “Are you going to arraign his whole life? How Sexual Propensity Evidence Violates the Due Process Clause;” 28 Loy. U. Chi. L.J. 1, 15 (1996). In Harrison’s Trial, 12 How. St. Tr. 834 (Old Bailey 1692), the defendant was on trial for murder. A witness was called to testify about some prior wrongful act of the defendant, but the Lord Chief Justice refused to allow the testimony, stating, “Hold, what are you doing now? Are you going to arraign his whole life? Away, away, that ought not to be; that is nothing to the matter.” Id. at 864. A primary reason for this rule is to ensure that the accused is not found guilty merely because a jury might think that he or she is likely to have committed a crime. Regina v. Oddy, 169 Eng. Rep. 499, 502 (Cr.Cas.Res. 1851) (“evidence of the prisoner being a bad man, and likely to commit the offences there charged” is inadmissible). Benjamin Cardozo, writing as Chief Justice of the New York Court of Appeals, framed the issue rather well:
There may be some cogency in the argument that a quarrelsome defendant is more likely to start a quarrel than one of a milder type, a man of dangerous mode of life more likely than a shy recluse. The law is not blind to this, but equally it is not blind to the peril to the innocent if character is accepted as probative of crime. “The natural and inevitable tendency of the tribunal — whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge.” Wigmore, Evidence vol. 1, § 194, and cases cited. People v. Zackowitz, 172 N.E. 466, 468 (1930).
The United States Supreme Court has recognized at least twice the unanimous tendency of courts that follow the common law tradition to disallow resort by the prosecution to evidence of a defendant’s evil character to establish the probability of his guilt and strongly suggests that introduction of prior crimes evidence solely for the purpose of showing a criminal disposition would violate the due process clause. Bell v. Texas, 385 US 554, 572-74(1967)(conc. and diss. op. of Warren, C.J.); Michelson v. United States, 335 U.S. 469, 476 (1948) (“The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.”); see also Panzavecchia v. Wainwright, 658 F2d 337(5th Cir. 1981). The character rule “disallow[s] resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt.” Michelson v. United States, 335 U.S. at 475.
This principle “is so deeply imbedded in our jurisprudence as to assume almost constitutional proportions and to override doubts of the basic relevancy.” Advisory Committee’s Note to Federal Rule 404. See also, Mulkovich v. State, 73 Wis.2d 464, 471-72, 243 N.W.2d 198(1976)(civilization has recognized the principle that evidence should be confined to the offense charged and bad character should not be proved at trial). Due process is transgressed by a state rule that “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Medina v. California, 505 US 437, 445-46(1992) The use of “other acts” evidence as character evidence to show that the defendant has criminal propensities, and therefore is by inference likely to have committed the currently charged crimes, has been universally condemned as contrary to firmly established principles of Anglo-American jurisprudence for more than three-hundred years. See e.g., McKinney v. Rees, 993 F2d 1378, 1380(9th Cir. 1993). This is because “moral conduct in one situation is not highly correlated with moral conduct in another.” Campbell v. Greer, 831 F.2d 700, 707 (7th Cir. 1987) (citing Burton, Generality of Honesty Reconsidered, 70 PSYCHOLOGY REV. 481 (1963)). The “danger is particularly great where the extrinsic activity was not the subject of a conviction; the jury may feel that the defendant should be punished for the activity even if he is not guilty of the offense charged.” Dowling v. United States, 493 U.S. 342, 361-62 (1990) (Brennan,J., dissenting).
The prohibition against propensity evidence is true even if given the veneer of mathematics by such a term known in the law as “the doctrine of chances.” The origin of the doctrine of chances is the old English “Brides of the Bath,” Rex v. Smith, 114 L.T.R. 239 (Crim. App. 1915). In that case, the defendant was accused of drowning several of his wives in the bathtub, a number of whom were wealthy and left the defendant their money. “Oh, what a terrible accident” the defendant probably said when the authorities were investigating the latest drowning. The authorities were prepared to believe the man’s lamentations until they learned about the other dead wives. At trial the judge allowed evidence of the other deaths to help prove the current charges. The defendant had a propensity to drown his wealthy wives in the bathtub, perhaps in order to inherit their fortunes.
The essence of this probable guilt argument is that there is a disparity between the chances, or probability, that an innocent person would be charged so many times and the chances, or probability, that a guilty person would be charged so many times. If there is such a disparity, however, it is only because a guilty person would have the propensity to repeat the crime. If it were not for the propensity to repeat, the chances, or the probability, that an innocent person and a guilty person would be charged repeatedly would be identical. Hence, the argument hinges on propensity and runs afoul of the bar to admitting propensity evidence.
Further, left unanswered in the doctrine of chances how unlikely does it have to be that an innocent person would have been charged. Where do we draw the line? When do crimes become numerous and similar enough to the present crime that they cross over from inadmissibility to admissibility? This is the central problem in the “other crimes, wrongs, and acts” area that the doctrine of chances does not address. The doctrine says that the evidence is admissible if it is unlikely that an innocent person would be falsely charged so many times, but how unlikely does it have to be?
The duty of the prosecution is not to show that the defendant is a person inclined to murder, but to prove that he committed this specific murder. The fact that a defendant committed 10 prior murders does not mean that he committed this murder. The duty of the prosecution is not to show that the defendant is a person inclined to murder, but to prove that he committed this specific murder. This is a variation of Captain Renault’s command to “round up the usual suspects.” Once it becomes too easy to assume guilt by prior conduct, it eliminates the expectation that any particular crime be proven. The “usual suspects” become guilty for no better reason than they are the usual suspects. Society is not protected when the wrong person is convicted, and obviously the defendant who is innocent of this specific crime isn’t too thrilled about it either. While it makes for a quick and dirty shortcut to conviction, and one that satisfies the conscience of many a juror, it fails to fulfill the purpose of making certain that the right person is convicted of the specific crime.
And it fails justice.